                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-2004

Ou v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1783




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 03-1783


                                 WEN YING OU,

                                             Petitioner
                                        v.

                               JOHN ASHCROFT
                          United States Attorney General,
                                            Respondent


                   PETITION FOR REVIEW OF AN ORDER
                OF THE BOARD OF IMMIGRATION APPEALS
                          (Board No. A78-210-625)




                             Argued: March 30, 2004

             Before: ALITO, FISHER and ALDISERT, Circuit Judges.

                          (Opinion Filed: April 15, 2004)




BRUNO J. BEMBI (argued)
62 Nichols Court
Suite 202
Hempstead, NY 11550

ATTORNEY FOR PETITIONER
Peter D. Keisler
Assistant Attorney General
Civil Division

David V. Bernal
Assistant Director
Office of Immigration Litigation

Sergio A. O’Cadiz (argued)
Regina Byrd, Staff Attorney
Office of Immigration Litigation, Civil Division
United States Justice Department
P.O. Box 878, Ben Franklin Station
Washington D.C. 20044

ATTORNEYS FOR RESPONDENT

                                             _____

                                   OPINION OF THE COURT


ALDISERT, Circuit Judge.

       Because we write only for the parties who are familiar with the facts, the

procedural history and the contentions presented, we will not recite them except as

necessary to the discussion. Wen Ying Ou, a native citizen of China, petitions this court

to review a final order of removal entered by an Immigration Judge (“IJ”) and affirmed by

the Board of Immigration Appeals (“BIA”). Ou contends that the adverse credibility

findings made by the IJ and the BIA were not supported by substantial evidence. For the

reasons that follow, we will deny the petition.

       Ou entered the United States illegally on August 2, 1999. He submitted an

application for asylum and withholding of removal on January 5, 2000, accompanied by


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an affidavit dated February 11, 2000. He is married to Sai Zhang Xiao, and together they

have one daughter, born April 2, 1989, and one son, born September 3, 1991. Ou

contends that his wife was forced to have an intrauterine device (“IUD”) inserted soon

after his daughter’s birth pursuant to China’s population control policy. In late 1990,

doctors discovered that the IUD was missing, and because Ou’s wife did not want it

reinserted, the family went into hiding at the home of Ou’s in-laws. Ou’s wife became

pregnant with Ou’s son. Approximately two months after Ou’s son was born, “village

cadres” came to Ou’s house and forced Ou to undergo a vasectomy. Ou was subsequently

fined 1,500 RMB. 1

       The Attorney General may grant asylum to an alien who demonstrates that he or

she is a refugee within the meaning of 8 U.S.C. § 1101(a)(42). See 8 U.S.C. §

1158(b)(1); 8 C.F.R. § 208.13(A). For Ou to establish he is a refugee, he must

demonstrate that he is unable or unwilling to return to China “because of persecution or a

well-founded fear of persecution on account of race, religion, nationality, membership in

a particular social group, or political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A); see also

Gao v. Ashcroft, 299 F.3d 266, 271-272 (3d Cir. 2002). Such persecution must be

inflicted by either the government or by forces that the government is unable or unwilling

to control. Id. at 272.

       As to Ou’s claim regarding China’s forced sterilization policy, the Immigration



       1
           Neither party has provided information about the equivalent in U.S. dollars.

                                                   3
and Nationality Act provides:

          a person who has been forced to abort a pregnancy or to undergo
          involuntary sterilization, or who has been persecuted for failure or refusal
          to undergo such a procedure or for other resistance to a coercive
          population control program, shall be deemed to have been persecuted on
          account of political opinion, and a person who has a well founded fear that
          he or she will be forced to undergo such a procedure or subject to
          persecution for such refusal, refusal, or resistance shall be deemed to have
          a well founded fear of persecution on account of political opinion.

8 U.S.C. § 1101(a)(42)(B).

         Ou bears the “burden of supporting [his] asylum claim[] through credible

testimony.” Id. (citations omitted). We review the agency’s findings under the substantial

evidence standard, in which we uphold credibility determinations that are “supported by

reasonable, substantial, and probative evidence on the record considered as a whole.”

Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Only discrepancies that “involve

the heart of the asylum claim” can support an adverse credibility finding. Gao, 299 F.3d

at 272. “Minor inconsistencies that reveal nothing about an asylum applicant’s fear for

his safety are not an adequate basis for an adverse credibility finding.” Id. The BIA’s

adverse credibility finding should be supported by a specific, cogent reason for the

disbelief in petitioner’s testimony. Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir.

1998).

         We conclude that the BIA’s determination that Ou’s testimony was not credible is

supported by substantial evidence in the record and that the BIA provided specific and

sufficient reasons for its determination. In dismissing Ou’s appeal, the BIA found that

                                              4
discrepancies between Ou’s testimony and the statements in his asylum application and

accompanying affidavit provided a sufficient basis for an adverse credibility

determination. Specifically, Ou did not remember whether his wife became pregnant

with his son at the end of 1990 or beginning of 1991; he did not remember the exact date

in September 1991 that he returned home after the birth of his son; he was unclear about

whether he went into hiding with the rest of his family; and he changed his testimony

regarding when (or if at all) the cadres broke up furniture in his house. Ou admitted

confusion regarding the breaking up of furniture by the cadres. The IJ stated that Ou was

reluctant to answer questions, “appeared to the Court to be beating around the bush on

many occasions” and seemed to be reading from a script as he testified and not telling the

truth. The BIA stated that the inconsistencies in Ou’s testimony were not minor and

noted that the IJ identified “numerous inconsistencies of varying importance” as well as

“a material inconsistency in the record.” The material inconsistency involved Ou’s

confusion over when the cadres broke up his furniture, which was important because it “is

material to the issue of force.” The BIA did not find Ou’s explanation for the discrepancy

convincing. Although we question the IJ’s observation that Ou was reading from a script,

given that Ou had no formal education and cannot read, we do not find the evidence of

the record as a whole “so compelling that no reasonable fact finder could fail to find the

requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-484 (1992).

       We have considered all of contentions raised by the parties and conclude that no



                                             5
further discussion is necessary.

       The petition for review will be denied.




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