                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1708




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                                    NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 03-1708


                        BAO YUAN LI

                                    Petitioner

                               v.

                  ALBERTO GONZALES,
        Attorney General of the United States of America

                                    Respondent



                Petition for Review of an Order
              of the Board of Immigration Appeals
                       (No. A73-167-983)



          Submitted Under Third Circuit LAR 34.1(a)
                     Date: July 14, 2005

Before: ALITO, VAN ANTWERPEN and ALDISERT, Circuit Judges

                     (Filed July 19, 2005)



                  OPINION OF THE COURT



                               1
ALDISERT, Circuit Judge.

       Petitioner Bao Yuan Li, a native and citizen of China, seeks review of a final

order of removal issued by the Board of Immigration Appeals (“BIA”) on February 12,

2003. The order affirmed without opinion the Immigration Judge’s (“IJ’s”) adverse

credibility finding and its decision to deny Li’s request for asylum and withholding of

removal. We have jurisdiction to review the BIA’s order pursuant to 8 U.S.C. § 1252.1

We will deny the petition.

                                             I.

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

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

discussion.

                                             II.

       To establish that he or she is a refugee eligible for asylum, a petitioner must

demonstrate an inability or unwillingness to return to his or her country of origin

“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)(2000). A petitioner for asylum bears the burden of supporting

the claim through credible testimony. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).


       1
       The Immigration and Nationality Act (“INA”) was amended by the REAL ID Act
of 2005, Pub. L. No. 109-13, 119 Stat. 231. Because these amendments do not affect the
INA provisions applicable in this case, we will not discuss the REAL ID Act further.
                                              2
       An adverse credibility finding should be supported by specific, cogent reasons for

the disbelief in petitioner’s testimony. Balasubramanrim v. INS, 143 F.3d 157, 161-162

(3d Cir. 1998). When the BIA affirms the IJ without an opinion, we review the IJ’s

opinion. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003). We review an adverse

credibility finding under the substantial evidence standard, meaning that we will uphold

the IJ’s findings “to the extent that they are ‘supported by reasonable, substantial, and

probative evidence on the record considered as a whole.’” Balasubramanrim, 143 F.3d at

161 (quoting INS v. Elias-Zacarias, 502 U.S. 478 (1992)). The IJ will not be reversed

merely because the court disagrees with the IJ’s evaluation of the facts, but will be

affirmed if the IJ’s conclusion is substantially reasonable. Dia, 353 F.3d at 249 (citing El

Moraghy v. Ashcroft, 331 F.3d 195, 202 (3d Cir. 2003)). Deference to an adverse

credibility finding, however, “is not due where findings and conclusions are based on

inferences or presumptions that are not reasonably grounded in the record.” Id.

       Here, we must determine whether the IJ, as affirmed by the BIA, correctly

determined that Li’s testimony was not credible. We will deny the petition for review.

       The IJ’s adverse credibility findings were based on a couple of factors. First, in his

original asylum application, Li made many untrue statements. Li blamed these falsehoods

on his previous attorney. He refused, however, to file a complaint against the attorney.

The IJ concluded that Li was a willing participant in making the inaccurate statements

and did not want to file a complaint because that would reveal his participation in the


                                             3
fraud.

         The IJ concluded also that there was no probative evidence that Li is Roman

Catholic. The IJ noted that Li had nine years in which to gather documents that would

show that some of his family was Roman Catholic. The only evidence Li presented was

his own self-serving statements.

         Even if Li’s testimony was credible, the IJ concluded that he could not qualify for

asylum because he failed to establish that he faces a reasonable possibility of future

persecution in China because of a factor protected by the Act. See 8 U.S.C. §

1101(a)(42)(A). Li now claims that he was never legally married to the mother of his two

children. Because the birth control cases allowing asylum require that the male applicant

is the spouse of a person in China who has suffered from the birth control policies, Li’s

asylum claim fails.

         Li contends that the IJ failed to base his credibility findings on the record and that

the IJ’s failure to consider corroborative evidence is reversible error. Li fails to mention

what this potentially corroborative evidence is. This Court has held that it is permissible

for a court to require applicants to supply corroborative evidence in order to meet their

burden of proof. See Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001). In this case,

however, Li did not supply corroborative evidence for his claim that he was Roman

Catholic.

         A review of the record reveals that the IJ’s adverse credibility finding is supported


                                                4
by sufficient evidence. Li’s statement in his asylum application is completely different

from his testimony before the IJ. For example, Li claimed to be a professor in his asylum

application yet changed his story before the IJ. Li admitted that the asylum application

was false but blamed the inaccuracies on his previous attorney. Although he had two

years to file an ineffective assistance of counsel claim against his former attorney, he

refused to do so for fear he would “offend him.” The IJ pointed out that Li had “no less

than three stories about why [he] want[ed] asylum” and he did not find any of these

stories credible or supported.

                                         *****

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

further discussion is necessary. We hold that substantial evidence supported the IJ’s

adverse credibility findings.

       The petition for review will be denied.
