Liu v. Atty Gen USA ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-13-2009
Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1902
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1902
___________
CHUI JIAN LIU; LI MEI PAN,
Petitioners
vs.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A73-611-330 and A73-660-891)
Immigration Judge: Honorable Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 5, 2009
Before: FUENTES, WEIS and GARTH, Circuit Judges
Opinion filed February 13, 2009
___________
OPINION
___________
PER CURIAM.
The petitioners, who are citizens of the People’s Republic of China, seek
review of a final order of the Board of Immigration Appeals (“BIA”). For the following
reasons, we will deny the petition.
1
I.
The lead petitioner, Chui Jian Liu, entered the United States in January
1992, at which time he was detained and placed in exclusion proceedings. Soon
thereafter, he filed an application for asylum claiming that he would be persecuted if he
was returned to China because he participated in the 1989 Tiananmen Square
demonstrations. However, he then submitted a second asylum application based on
China’s coercive family planning policies. On June 8, 1992, after an exclusion hearing,
his applications were denied and Liu returned to China.
Liu claims that he married the secondary petitioner, Lei Mei Pan, in China
on January 8, 1993. They both came to the United States on or about February 15, 1994.
On August 26, 1994, Liu submitted a third asylum application under the name Fu Bao Lin
claiming that his wife had died due to a forced late-term abortion in China. After being
interviewed in 2000 regarding the application, Liu was served with a Notice to Appear on
June 19, 2000. Pan, who was alleged to have died, received a notice to appear on the
same day. Liu and Pan conceded removability, but on June 22, 2005, filed additional
applications for asylum, withholding of removal, voluntary departure, and relief under the
Convention Against Torture (“CAT”), claiming that Pan was forced to have a mid-term
abortion in September 1993, and that they would be sterilized if they returned to China
because they have three children who were born in the United States.
2
On August 22, 2006, the Immigration Judge (“IJ”) denied all requested
relief and found Liu to be not credible. In making the credibility determination, the IJ
considered Liu’s previously-filed and admittedly false asylum applications, and his
admittedly false testimony at his 1992 removal proceeding. See 8 U.S.C. §
1158(b)(1)(B)(iii). The IJ also found that Pan’s medical records from the University of
Pennsylvania, which stated that she had never had an abortion, justified an adverse
credibility finding. The IJ then determined that the petitioners did not meet their burden
of proof for establishing past persecution or a well-founded fear of future persecution. As
to the fear of future persecution, the petitioners did not submit any materials refuting the
2004 and 2005 U.S. State Department Country reports, which the IJ determined do not
support the claim that the petitioners would be sterilized upon their return to China.1
Moreover, the IJ concluded that the possible penalties for returning to China with three
U.S.-born children—denial of social benefits for the children and an administrative
fine—do not amount to persecution.
On February 3, 2008, the BIA denied the petitioners’ appeal. The BIA
found that there was no clear error in the IJ’s adverse credibility finding and agreed with
the bases for the IJ’s decision. The BIA then determined that, even if the petitioners were
1
Although the government apparently submitted only the 2004 country
report, the IJ took administrative notice of the 2005 report. As we have stated, these
reports are substantially the same regarding the threat of forced sterilization for Chinese
citizens who return to China with foreign-born children. Yu v. Att’y Gen., 513 F.3d 346,
348 n.1 (3d Cir. 2008).
3
credible, they failed to meet their burden of proof. In particular, the BIA concluded that
Pan’s medical records negated the claim of past persecution, and that the submission of
vague and incomplete “extra birth penalty” documents was insufficient to demonstrate
that Pan had suffered a forced abortion, or that the “extra birth fine” constituted
persecution. Citing to Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007) and Matter of J-
H-S-, 24 I. & N. Dec. 196 (BIA 2007), the BIA also determined that the petitioners did
not establish an objective fear of future persecution based on the potential of forced
sterilization because they failed to present any evidence refuting the 2004 and 2005
country reports.
The petitioners seek review in this Court of the BIA’s denial of their appeal;
the government opposes the petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA
substantially relied upon the IJ’s adverse credibility determination, we review both the
BIA’s and the IJ’s decisions with regard to the credibility determination. See Xie v.
Ashcroft, 359 F.3d 249, 241-42 (3d Cir. 2004). In addition, because the BIA issued a
decision on the merits as to whether the petitioners proved past persecution and a well-
founded fear of future persecution, we review the BIA’s opinion as to those findings. See
Abdulai v. Ashcroft, 239 F.3d 542, 548-49 n.2 (3d Cir. 2001). We review findings of
fact—including adverse credibility findings—under the substantial evidence standard and
4
will uphold the BIA’s determinations “unless the evidence not only supports a contrary
conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 462, 471 (3d Cir. 2003)
(internal citation omitted).
The IJ delineated specific, cogent reasons that bear a legitimate nexus to the
adverse credibility determination, and the finding is thus supported by substantial
evidence. See Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003); Balasubramanrim v.
INS, 143 F.3d 157, 162 (3d Cir. 1998). Despite the petitioners’ argument to the contrary,
the IJ appropriately based her decision on Liu’s fraudulent prior applications, his false
testimony at the 1992 exclusion hearing, and the medical records showing that Pan never
had an abortion.
Substantial evidence also supports the BIA’s finding that the petitioners did
not meet their burden of establishing past persecution or a well-founded fear of future
persecution. See 8 U.S.C. § 1101(a)(42)(B). First, as the BIA recognized, the medical
records directly contradict the petitioners’ claim that Pan was forced to have an abortion
in 1993, and the “extra birth penalty” documents that the petitioners submitted do not
refute the medical records. Nor does an extra-birth fine itself constitute persecution in the
form of a “deliberate imposition of severe economic disadvantage.” Li v. Att’y Gen., 400
F.3d 157, 168 (3d Cir. 2005). Second, although forced sterilization constitutes
persecution under 8 U.S.C. § 1101(a)(42), substantial evidence supports the BIA’s
finding that the petitioners did not meet their burden of proof to support a claim on this
5
ground. The 2004 country report rejects the notion that returning Chinese citizens face
forced sterilization if they have had multiple children outside the country, and “[t]his
Court has repeatedly recognized that State Department reports may constitute substantial
evidence.” Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008). Given that the petitioners
did not submit any evidence disputing the country reports, there is no compelling reason
to reverse the BIA’s decision. Additionally, to the extent that the petitioners did not
waive review of their applications for withholding of removal or CAT relief, the BIA
properly rejected those claims. See id.
Accordingly, after a careful review of the record, we conclude that the BIA
did not abuse its discretion in denying Liu’s and Pan’s appeal, and we will deny their
petition for review.