Li v. Atty Gen USA ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-12-2008
    Li v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 06-5108
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    Recommended Citation
    "Li v. Atty Gen USA" (2008). 2008 Decisions. Paper 677.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/677
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 06-5108
    ___________
    FENG LI,
    Petitioner,
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent.
    ________________________
    On Petition for Review from
    the Board of Immigration Appeals
    BIA No: A78-045-531
    Immigration Judge: Miriam K. Mills
    ________________________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    July 22, 2008
    Before: McKEE, FUENTES, and JORDAN, Circuit Judges.
    Opinion Filed: August 12, 2008
    ___________
    OPINION OF THE COURT
    ____________
    1
    FUENTES, Circuit Judge.
    Feng Li, a native and citizen of China, was smuggled into the United States in July
    of 2000, in a van across the border from Mexico to Arizona. She was taken into custody
    and issued with a notice to appear. Subsequently, Li applied for asylum, withholding of
    removal, and protection under the Convention Against Torture (“CAT”). She bases her
    claim for relief on persecution that she claims she experienced in China: being forced to
    submit to an involuntary abortion and being threatened with the implantation of an
    involuntary IUD. In support of her petition, she submitted, among other things, an
    official abortion certificate. Once in the United States, she claims that she got pregnant
    and had a child, whom she sent back to live in China. For the reasons that follow, the
    petition will be denied.
    The IJ originally denied her claim, finding her to be not credible because her
    testimony was “weak” and indicating, among other things, that she did not provide any
    medical evidence that she was pregnant, though she appeared to be so at her hearing.
    (App. 227.) The IJ also referred to Li as a single woman.
    On appeal, the BIA remanded the case, finding that the IJ did not sufficiently
    articulate its reasons for its adverse credibility finding, and failed to analyze “the
    consistency (or lack thereof) of [Li’s] testimony as compared to her written application.”
    (App. 208.) Specifically, the BIA was troubled that the IJ did not explain why it found
    there was no evidence that she was married, especially given that the IJ interrupted her
    testimony at the hearing that she was married in a traditional ceremony that was not
    2
    registered with the civil authorities in China. In addition, the BIA criticized the IJ for
    determining that Li’s credibility was negatively affected because she did not submit
    evidence that she was pregnant at the time of the hearing. The BIA expressed confusion
    about why Li needed to show additional proof, given that the IJ noted that she appeared to
    be pregnant, and noted that her pregnancy did not seem to be related to her claim for
    relief.
    On remand, the IJ made another adverse credibility finding and again denied Li’s
    claim. The IJ found that Li failed to have her abortion certificate authenticated, and failed
    to provide any explanation of why no attempt was made to authenticate the document.
    The IJ noted that the abortion certificate was cast into doubt by the State Department’s
    Profile of Asylum Claims and Country Conditions Report for China from 1998 and 2004
    (“Country Reports”), which confirms the existence of widespread document fabrication in
    China and indicates that the United States is unaware of abortion certificates being issued
    for involuntary abortions. The IJ also found that Li failed to prove that she gave birth to a
    daughter in the United States. Accordingly, the IJ found that Li had failed to provide a
    credible claim upon which relief could be granted.
    Upon her second appeal to the BIA, the BIA affirmed the decision of the IJ,
    finding that the record provided a basis to question the official abortion certificate and
    birth of Li’s child.
    We have jurisdiction to review a final order of removal under 
    8 U.S.C. § 1252
    .
    See Briseno-Flores v. Att’y Gen., 
    492 F.3d 226
    , 228 (3d Cir. 2007). Li’s removal
    3
    proceedings occurred in Philadelphia, Pennsylvania so venue is proper in the Third
    Circuit under 
    8 U.S.C. § 1252
    (b)(2).
    Where, 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. Li v. Att’y Gen., 
    400 F.3d 157
    ,
    162 (3d Cir. 2005). The BIA is bound by the IJ’s factual determinations “including
    findings as to the credibility of testimony” and reviews these findings only to determine
    whether they are clearly erroneous. 
    8 C.F.R. § 1003.1
    (d)(3)(i). “The BIA’s conclusions
    regarding evidence of past persecution and the well-founded fear of persecution are
    findings of fact,” which we review under the deferential substantial evidence standard.
    Chavarria v. Gonzalez, 
    446 F.3d 508
    , 515 (3d Cir. 2006). Under the deferential
    substantial evidence standard, the BIA’s findings “must be upheld unless the evidence not
    only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 
    242 F.3d 477
    ,
    484 (3d Cir. 2001) (citation omitted).
    On appeal before us, Li asserts that the “birth of Li’s child is irrelevant to Li’s
    asylum claim.” (Pet’r Br. 9.) We agree. The basis for Li’s claim for relief is that she
    suffered past persecution in China, and any pregnancy in the United States has no bearing
    on that claim.1 However, Li cannot prevail on her claim based on past persecution. As
    noted by the IJ, Li failed, despite being represented by counsel, to get her official abortion
    certificate authenticated, and, this document is further cast into doubt because the Country
    1
    To the extent that Li is seeking relief based on a fear of future persecution because of
    the birth of a child in the United States, she has not adequately supported that claim.
    4
    Reports explain that the U.S. Embassy and Consulates General are not aware of abortion
    certificates being issued for involuntary abortions. Accordingly, we conclude that the
    BIA’s decision is supported by substantial evidence, and, we will deny the petition.
    5