                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1501




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                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                       No. 08-1501


                                      LI YONG LI,

                                                 Petitioner

                                            v.

                   ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent



                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                               (Agency No. A98-769-710)
                Immigration Judge: Honorable Roxanne C. Hladylowycz


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 5, 2009

               Before: AMBRO, FISHER and JORDAN, Circuit Judges

                            (Opinion filed: February 6, 2009)


                                        OPINION


PER CURIAM

       Petitioner seeks review of an order of the Board of Immigration Appeals (“BIA”)

dismissing his appeal from the Immigration Judge’s (“IJ”) order of removal. For the

following reasons, we will deny the petition for review.
                                                 I.

       Petitioner, Li Yong Li, is a native and citizen of China. Li entered the United

States without inspection in 2004, and has remained in the country since then. On June 9,

2005, Li filed an application for asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”). In his application, Li alleged that he would be

persecuted if forced to return to China because he was wanted by the authorities for

practicing Falun Gong. In addition, Li claimed past persecution on the ground that the

Chinese government prevented him and his wife from having a second child.

       On May 9, 2007, Li appeared for a hearing before Immigration Judge (“IJ”)

Roxanne C. Hladylowycz. At the hearing, Li testified that, when he was living in China,

he regularly practiced Falun Gong in a public park with a number of other practitioners.

According to Li, all of these individuals were later arrested and, in December 2003,

Chinese authorities went to his parents’ home to arrest him as well. As a result, Li went

into hiding and eventually left the country. Li stated that he continues to practice Falun

Gong in this country, although he is not a member of an organized group. Li claims that

Chinese authorities are still looking for him.

       With respect to his family planning claim, Li testified that in 1999, several days

after his wife gave birth to a daughter, Chinese authorities demanded that she have an

IUD inserted to prevent future births. Li stated that, although his wife did not initially

comply with the government’s demand, authorities later forced her to undergo the



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procedure.

       Following the hearing, IJ Hladylowycz found that Li had failed to meet his burden

of establishing either a well-founded fear of future persecution due to his practice of

Falun Gong, or past persecution on the basis of China’s family planning policy. The IJ

explained that Li’s story was “sketchy,” “vague,” and “devoid of any detail,” (AR 00041)

and that he failed to provide any corroborating evidence. Therefore, the IJ denied Li’s

applications.

       Upon review, the BIA affirmed the IJ’s decision denying relief. First, the BIA

construed the IJ’s decision as including an adverse credibility determination, and found

that it was supported by substantial evidence. In addition, the BIA found that substantial

evidence supported the IJ’s finding that Li’s claims were uncorroborated. Li now seeks

review of the BIA’s decision.

                                             II.

       We have jurisdiction to review the BIA’s order of removal under 8 U.S.C.

§ 1252(a)(1). When, as here, the BIA issues a decision on the merits and not simply a

summary affirmance, we review the BIA’s, not the IJ’s, decision. Gao v. Ashcroft, 299

F.3d 266, 271 (3d Cir. 2002). We will sustain the BIA’s decision if there is substantial

evidence in the record to support it. Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.

2003). Under this deferential standard, the BIA’s decision will be upheld “unless the

evidence not only supports a contrary conclusion, but compels it.” Id.



                                             3
                                             III.

       The BIA affirmed the IJ’s decision on the ground that substantial evidence

supported both the IJ’s adverse credibility determination and her finding of insufficient

corroboration.

       We think it adequate to focus on the IJ’s determination that Li failed to adequately

corroborate his claims, a determination which is plainly supported by substantial

evidence. This Court has made clear that, if it would be reasonable to expect an

otherwise-credible applicant to provide evidence corroborating the specifics of his

testimony, then an applicant who neither introduces such evidence, nor offers a

satisfactory explanation as to why he cannot do so, may be found to have failed to meet

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

re S-M-J-, 21 I. & N. Dec. 722 (BIA 1997)). In denying asylum based on a lack of

corroboration, the IJ must conduct the following three-part inquiry: (1) an identification

of facts for which it is reasonable to expect corroboration; (2) an inquiry as to whether the

applicant has provided information corroborating the relevant facts; and, if he or she has

not, (3) an analysis of whether the applicant has adequately explained his or her failure to

do so. Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006); Abdulai, 239 F.3d at 554.

       Here, IJ Hladylowycz found that Li failed to meet his burden of proof on either his

Falun Gong or family planning claims because he failed to corroborate his “sketchy”

testimony with any documentary evidence. First, the IJ found that Li had failed to



                                              4
provide sufficient evidence of his identity because the birth certificate that he provided

had not been authenticated, see 8 C.F.R. 287.6, and because he failed to provide any other

original documentation—such as his national ID card or his passport—confirming his

identity. Next, the IJ explained that Li failed to provide any witnesses to corroborate his

testimony that he practices Falun Gong, particularly his cousin, who lives nearby. Nor

did he provide a letter from his wife, parents, or other practitioners confirming that he

practices the discipline. Finally, with respect to Li’s family planning claim, IJ

Hladylowycz correctly noted that the only evidence Li submitted to corroborate his story

was his wife’s gynecological check-up booklet. The IJ found that, although this booklet

confirms that his wife had an IUD inserted, it does not in any way indicate that the

procedure was involuntary. Although we disagree with IJ Hladylowycz that Li should

have been able to obtain a copy of his arrest warrant, this does not change our conclusion.

       Based on our review of Li’s testimony, we conclude that it was reasonable for the

IJ to require corroboration. See Abdulai, 239 F.3d at 554. Furthermore, in discussing

Li’s failure to provide corroborating evidence, the IJ appears to have complied with the

requirements of Abdulai; she identified the evidence that Li could have submitted, and

she gave him an opportunity to explain his failure to do so. See id. In addition, she

found—albeit implicitly—that Li’s explanation for the gaps in the evidence was

inadequate. See id. Accordingly, we conclude that the BIA’s decision affirming the IJ’s

corroboration finding is supported by substantial evidence.



                                              5
       Given that Li failed to establish either past persecution or a well-founded fear of

future persecution, the BIA correctly determined that he necessarily failed to meet the

higher burden required for withholding of removal. See Gomez- Zuluaga v. Att’y Gen.,

527 F.3d 330, 348-49 (3d Cir. 2008). The BIA also correctly determined that Li did not

meet the criteria for relief under the CAT because he failed to establish that it was more

likely than not that he would be tortured if removed to China. See 8 C.F.R. §

208.16(c)(2).

                                            IV.

       For the foregoing reasons, we will deny the petition for review.




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