                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4971




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                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-4971


                                   FENG MEI XIU,
                                  a/k/a Feng Mei XU,
                                                  Petitioner

                                            v.

                            ATTORNEY GENERAL USA,
                                          Respondent


                       On Petition for Review of a Decision of
                          the Board of Immigration Appeals
                           Immigration Judge R.K. Malloy
                              (Agency No. A79 447 466)


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 17, 2006

           BEFORE: BARRY, CHAGARES and ROTH, CIRCUIT JUDGES

                                 (Filed : April 5, 2007)


                                        OPINION



PER CURIAM

      Feng Mei Xiu, a native and citizen of China, petitions for review of a final order of

removal. We will affirm the order of the Board of Immigration Appeals (“BIA”).
       Feng Mei Xiu is twenty-four years old. She came to the United States in 2002

without a valid entry document. The Immigration Judge (“IJ”) found Xiu removable on

this basis. Xiu applied for asylum, withholding of removal, and relief under the

Convention Against Torture, claiming that she fears persecution on account of an imputed

political opinion.

       In support of her applications for relief from removal, Xiu testified that she opened

a book stand in China in December 2001 while living with her brother’s girlfriend. She

asked her uncle to help her operate the stand. Xiu’s uncle asked Xiu to sell Falun Gong

materials, and she agreed. Her uncle had been arrested in 1999 because he practiced

Falun Gong. Xiu knew that selling these materials was illegal, but she did so because she

opposed the Chinese government’s policies.

       In March 2002, Xiu went home to get Falun Gong materials for a customer. While

at home, her uncle called and told her that the police were at the book stand, and that she

should run away. Xiu went into hiding. Her mother told her that the police arrested her

uncle, searched her room, and found Falun Gong materials. The police took away her

brother’s girlfriend for a brief period of time. Xiu’s mother later told her that the police

were looking for her, and that she should report to the police station. Xiu remained in

hiding because she was afraid she would be taken to prison and mistreated. Xiu’s uncle

had told her that he was mistreated when he was imprisoned.

       In April 2002, Xiu’s parents and a friend helped her leave China. Her mother later

told her that the police went to her home and damaged the furniture, and that officials

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released her uncle in June 2002. He was weak and unable to work. Xiu believes that the

police will arrest her if she returns to China.

       The IJ did not find Xiu credible. Xiu did not mention her uncle during her airport

interview or credible fear interview. The IJ found this omission “baffling” given that

Xiu’s problems stemmed from her uncle, and he was arrested and mistreated for

practicing Falun Gong. The IJ also noted that Xiu testified that she knew selling Falun

Gong material was illegal, but she told immigration officials that she did not know selling

such material was illegal.

       The IJ also stated that Xiu could have had her cousin, who was a lawful permanent

resident and aware of her uncle’s arrest, corroborate her story. The IJ stated that, other

than Xiu’s testimony, there was no evidence establishing that Xiu operated a book stand

or had an uncle. Based upon the lack of evidence, vague testimony, and inconsistencies,

the IJ concluded that Xiu failed to establish past persecution, or that she would suffer

future persecution or be tortured if she returned to China.

       The Board of Immigration Appeals affirmed, without opinion, the results of the

IJ’s decision, making it the final agency determination. Xiu filed a pro se petition for

review. We have jurisdiction to review final orders of removal under 8 U.S.C.

§ 1252(a)(1). We review adverse credibility determinations for substantial evidence.

Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Under this deferential standard of

review, we must uphold the credibility determination unless any reasonable adjudicator

would be compelled to conclude to the contrary. Id.

                                                  3
       Xiu argues that the IJ’s adverse credibility finding is not supported by substantial

evidence. She contends that her failure to mention her uncle to immigration officials was

not a material omission because her asylum claim is based upon her sale of Falun Gong

materials, not her association with her uncle. Xiu argues that the IJ mischaracterized her

asylum claim in stating that it was based on her association with Falun Gong members.

       The administrative record reflects that, at her credible fear interview, Xiu stated

that Chinese officials wanted to arrest her because she sold Falun Gong books. When

asked why she sold such books, she stated that she did so in order to make a living, and

because she thought it was “o.k.” A.R. at 226. Xiu testified, however, that she sold Falun

Gong materials at her uncle’s request, and that she knew it was illegal to do so.

       In addition, when asked at the airport to identify her occupation, Xiu stated that

she distributed pamphlets for Falun Gong. She also stated that she left China because

“the government was arresting people who belong in the Falungong[sic].” A.R. at 233.

Xiu did not mention that she operated a book stand, that her uncle was arrested, or that

the police were looking for her because she sold Falun Gong materials. Xiu testified that

she did not practice Falun Gong.

       These inconsistencies and omissions go to the heart of Xiu’s asylum claim,

whether characterized as based upon her sale of Falun Gong materials or her association

with Falun Gong members. Contrary to Xiu’s argument, these discrepancies are material

to determining her credibility. See Chen, 376 F.3d at 224 (stating that discrepancy

between airport interview, where alien stated that he left China because he was unable to

                                              4
practice Falun Gong, and testimony, where alien stated that he was not a Falun Gong

follower, but sold Falun Gong books, supported adverse credibility finding).1

       Xiu also argues that the airport interview and credible fear interview are

insufficient to support an adverse credibility finding where there is no information about

the manner in which the interviews were conducted. The Court has counseled against

placing too much weight on an airport interview, especially when the IJ and BIA lack

information as to the manner in which the interview was conducted. Id. at 223-24.

However, where an alien does not challenge the manner in which an airport interview was

conducted, discrepancies between the interview and testimony that go to the heart of the

alien’s claim support an adverse credibility determination. See id. at 224.

       Xiu does not challenge the manner in which her airport interview was conducted.

Although she states that she may not have understood the questions posed to her, and that

she may have feared immigration officials, she does not assert that she in fact did not

understand the questions or feared officials. In addition, Xiu made inconsistent

statements not only at the airport, but later at her credible fear interview. Because the

discrepancies between Xiu’s interviews and her testimony go to the heart of her claim, the

IJ did not err in relying on them.



   1
     We agree with Xiu that the IJ’s adverse credibility finding is not supported by an
inconsistency between Xiu’s affidavit, in which she stated that officials destroyed her
home furniture, and her testimony that she lived with her brother’s girlfriend. At most,
the record is ambiguous as to where officials destroyed her furniture. It appears that
officials did so at her mother’s home.

                                              5
       In light of these discrepancies, we cannot conclude that the IJ was compelled to

find Xiu credible. Substantial evidence supports the adverse credibility determination.

Accordingly, we will deny the petition for review.2




   2
     Because we conclude that the adverse credibility finding is supported by substantial
evidence, we need not address Xiu’s additional arguments that the IJ erred in requiring
her to provide evidence corroborating her testimony, and that she satisfied her burden of
proof.

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