Huang, Guo H. v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1711
GUO H. HUANG,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A95-577-259
____________
ARGUED APRIL 19, 2006—DECIDED JULY 14, 2006
____________
Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.
MANION, Circuit Judge. Guo Huang applied for asylum
alleging that Chinese family planning cadres forced his wife
to have an involuntary abortion. An immigration judge
denied the application, finding that Huang was not credible
and had not demonstrated either past persecution or a
reasonable fear of future persecution. Because the IJ’s
adverse credibility finding was based on substantial
evidence, including Huang’s submission of a certificate
purportedly documenting his wife’s forcible abortion, we
deny the petition for review.
2 No. 05-1711
I.
At his asylum hearing before an Immigration Judge, Guo
Huang testified that he, his wife, and their son are from
Lianjiang County in Fujian Province. After his son’s birth,
his wife had an IUD implanted according to mandatory
birth control practices. But in 1999 the Huangs paid a
private doctor to remove the IUD, and in March 2000 she
learned that she was pregnant. The pregnancy was in its
very early stages at that point, and the Huangs moved to a
nearby town, purportedly to prevent family planning
authorities from discovering her condition. She subse-
quently missed her mandatory physical examination,
given every three months.
Huang alleged that his wife’s failure to appear for the
physical alerted the family planning authorities that she
might be pregnant, and that on May 15, 2000, the “family
planning cadres found her.” Huang testified that when he
came home and found his wife missing, someone told
him that she had been seized by family planning cadres as
she was taking out the trash. He asserted that he went to the
local clinic to find her, but by the time he arrived she had
already had an abortion. Huang specifically testified that
the abortion was involuntary. He also offered a certificate,
signed by a physician and bearing an official seal from the
Lianjiang County Hospital, which states that Jin Fang
Huang underwent an “artificial abortion” on May 15, 2000.
The certificate does not specify whether the procedure was
voluntary or involuntary. Huang testified that she was
given the certificate after he asked the hospital for “proof in
case later on my wife suffer any complication afterwards
they can help.” Finally, he testified that if he were returned
to China he feared imprisonment because of his wife’s
pregnancy. Also, he was concerned about his “illegal exit,”
No. 05-1711 3
a reference to his once having a valid passport that he
relinquished to the snakeheads who helped smuggle him to
the United States.1
After Huang testified, the IJ read aloud portions of a
background report prepared in March 2000 by the Canadian
Embassy in Beijing describing conditions in Lianjiang
County. The IJ noted that according to the report, forced
abortion and forced sterilization were no longer accepted
methods for enforcing birth control, even though local
government officials acknowledged problems with this in
the past. The IJ also referred to the State Department’s
1998 Profile of Asylum Claims and Country Conditions,
which states that the U.S. embassy was “unaware of any so-
called ‘abortion certificates,’ which are often presented as
part of asylum applications as evidence of a forced abor-
tion.” That report says that “the only document that might
resemble such a certificate and result in confusion is a
document issued by hospitals upon a patient’s request after
a voluntary abortion.”
The IJ then issued his decision, ruling that Huang failed to
establish his claim for asylum because he was not credible.
1
Huang’s wife did not come to America with him, and remains
in China. Her absence in these proceedings is, in itself, no bar
to Huang’s claim. “[T]he spouse of a woman who has been forced
to undergo an abortion or sterilization procedure can thereby
establish past persecution.” In re C-Y-Z, 21 I. & N. Dec. 915, 918
(B.I.A.1997); see also Zhang v. Gonzales, 434 F.3d 993, 1001 (7th Cir.
2006) (citing In re C-Y-Z); Lin v. Ashcroft, 385 F.3d 748, 753 (7th
Cir. 2004). At oral argument, Huang asserted that his intention
was to bring his family over from China after he had obtained
asylum. See 8 U.S.C. § 1158(b)(3)(A) (allowing the spouse or child
of an asylee “be granted the same status as the alien if accompa-
nying, or following to join, such alien”).
4 No. 05-1711
Specifically, the IJ stated that he “did not believe [Huang’s]
story and believes that [Huang’s] wife either never went for
an abortion, or perhaps agreed to have a voluntary abortion
on May 15, 2000.” The IJ based this finding on several
perceived inconsistencies in Huang’s story. First, the IJ
noted that Huang failed to explain how the authorities
located the family after their move to Guantou Town less
than two months earlier, or why they would be searching
for her so early in the pregnancy. The IJ also doubted
Huang’s testimony that his wife’s missed physical examina-
tion accounted for her being seized by family planning
cadres and forced to undergo an abortion. Moreover, the IJ
noted that Huang testified that his family was not threat-
ened with fines or pressured in any other way before the
alleged abortion. The IJ also emphasized that forcible
abortions were not being performed at the time in Fujian
Province and that certificates are given not to women who
have involuntary abortions, but rather to women who
undergo voluntary abortions and want proof of the proce-
dure to qualify for medical leave from work. Having found
him incredible, the IJ ruled that Huang had not shown that
he or his wife had suffered past persecution or that he had
a well-founded fear of future persecution if returned to
China. The Board of Immigration Appeals adopted and
affirmed the IJ’s ruling.
II.
Credibility determinations must be supported by cogent
and specific reasons and bear a legitimate nexus to the
finding. Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006);
Mansour v. I.N.S., 230 F.3d 902, 906 (7th Cir. 2000). This
court affords substantial deference to an IJ’s stated reasons,
and will overturn a credibility finding only in “extraordi-
No. 05-1711 5
nary circumstances.” Giday v. Gonzales, 434 F.3d 543, 550
(7th Cir. 2006). No such deference is due, however, to
credibility findings that are “drawn from insufficient or
incomplete evidence.” Georgis v. Ashcroft, 328 F.3d 962, 969
(7th Cir. 2003). The credibility analysis in this case is not
affected by the REAL ID Act of 2005, Pub.L. No. 109-13, 119
Stat. 231, because Huang filed his asylum petition before the
passage of that statute. See Diallo v. Gonzales, 439 F.3d 764,
766 n.1 (7th Cir. 2006).
Huang correctly argues that some of the IJ’s bases for his
credibility finding were not founded in cogent and
specific reasoning. For instance, the IJ merely speculated,
without support in the record, that family planning cadres
could not or would not take action so quickly after dis-
covering that Huang’s wife was pregnant. Nor does the
record support the IJ’s conclusion that Huang’s testimony
was “simply too weak to establish a credible or plausible
claim” because he failed to testify that he had been threat-
ened with fines or lesser sanctions. The IJ had no basis in the
record to find that the family planning authorities would
resort to lesser sanctions in a case where the family had
already fled. If the IJ had based his credibility determination
on this reasoning alone, the credibility finding would be
unsupportable; we “cannot uphold credibility assessments
unmoored from the record, based on nothing but the IJ’s
personal speculation or conjecture.” Tabaku v. Gonzales, 425
F.3d 417, 421 (7th Cir. 2005); see also Lin v. Ashcroft, 385 F.3d
748, 755-56 (7th Cir. 2004).
But the IJ did base his finding on one ground that is
sufficient to support the determination. The IJ specifically
alluded to the State Department asylum profile to suggest
that the Chinese government does not issue certificates of
involuntary abortions, and found that Huang’s testimony
6 No. 05-1711
and his characterization of the abortion certificate were
inconsistent with the report. The IJ relied on the State
Department’s 1998 Profile of Asylum Claims and Country
Conditions Report, which disclaimed any knowledge of
involuntary abortion certificates:
The U.S. Embassy and Consulate General are unaware
of any so-called ‘abortion certificates,’ which often are
presented as part of asylum applications as evidence of
a forced abortion. According to Embassy officials, the
only document that might resemble such a certificate
and result in confusion is a document issued by hospi-
tals upon a patient’s request after a voluntary abortion.
This certificate is used by patients as evidence to request
2 weeks of sick leave after an abortion has been per-
formed, a right provided by the law.
The IJ held that when viewed in light of the profile, Huang’s
“explanation as to the issuance of an abortion certificate in
May of 2000 suggests that his wife agreed to have the
abortion, it was not forced.”
We have not yet directly addressed whether an official
certificate offered as proof of a forced abortion constitutes
evidence of such persecution despite a contrary State
Department profile, but we have twice relied on the profile
to hold that IJs may not demand such certificates as corrobo-
ration of claims of a forcible abortion. See Zhang v. Gonzales,
434 F.3d 993, 999-1000 (7th Cir. 2006); Lin v. Ashcroft, 385
F.3d at 753-54. In both cases, we cited the same passage
from the State Department profile relied upon in this case
and held that the petitioners’ failure to present documentary
evidence of an involuntary abortion was excusable because
any such documentation “would imply that the procedure
was voluntary as opposed to forced.” Lin v. Ashcroft, 385
F.3d at 753. “According to Embassy officials, the only
No. 05-1711 7
document of that nature is one provided only in cases of
voluntary abortions, in which certificates are provided to
allow the patient to obtain time off work. The absence of a
hospital certificate . . . is entirely consistent with [allegations
of an involuntary abortion].” Zhang, 434 F.3d at 1000
(citation omitted).
Other circuits have similarly relied on the State Depart-
ment’s characterization of the certificates as documenta-
tion of voluntary procedures and required corroboration
from applicants offering them as evidence of an involuntary
abortion. The Eighth Circuit recently upheld an adverse
credibility finding in a case where the petitioner presented
a certificate as proof of an involuntary abortion: “These
inconsistencies are of a substantive nature and go to the key
issues in [the petitioner’s] asylum claim. [Petitioner] has
offered no concrete evidence in support of his testimony
regarding the forced enforcement of China’s family plan-
ning policy in the Fujian Province. Without such evidence,
there was reason for the IJ to question the credibility of
[petitioner’s] testimony about the issue.” Cao v. Gonzales, 442
F.3d 657, 661 (8th Cir. 2006). Other circuits have also treated
the attempt to use the certificates as proof of an involuntary
abortion as an inconsistency that the petitioner must
affirmatively address. In Chen v. Gonzales, 434 F.3d 212, 219
(3d Cir. 2005), the Third Circuit held that an IJ was justified
in requiring a petitioner to provide further corroborating
evidence of an involuntary abortion where the petitioner
offered an “abortion certificate, a document whose authen-
ticity [the IJ] questioned and a document which on its face
is silent as to whether the abortion referred to was procured
without consent.” Most recently, the Second Circuit held
that the State Department’s profile was compelling, and
“constituted a basis for the IJ to have found implausible
[petitioner’s] testimony that his wife’s abortion—as evi-
8 No. 05-1711
denced by the certificate—was involuntary.” Lin v. Gonzales,
446 F.3d 395, 400 (2d Cir. 2006).
As shown in the case law from this and other circuits, the
State Department’s vague and inconclusive determina-
tion as to the validity of these abortion certificates is at odds
with the testimony of many asylum applicants from China.
But even though the State Department’s characterization is
not as well-researched or informative as we might wish, it
constitutes evidence that such a certificate shows only a
voluntary abortion, and that conflict supported the IJ’s
adverse credibility determination. Although we held in
Dong v. Gonzales, 421 F.3d 573, 578 (7th Cir. 2005), that “an
IJ should not rely on generalized Profiles or Country
Reports to refute an applicant’s personal experience,” the IJ
here did not apply “generalized Profiles or Country
Reports.” See also Chen v. Ashcroft, 376 F.3d 215, 225-26 (3d
Cir. 2004) (IJ may not reject “the validity of the abortion
certificates based on nothing more than the country re-
port”). Rather, the IJ narrowly applied specific information
provided in the profile and contrasted it with the peti-
tioner’s testimony. Moreover, in Dong the IJ’s application of
the country report was flawed because “[n]either the Profile
nor the Country Report rule out the” petitioner’s version of
events. Dong, 421 F.3d at 578. The information in the State
Department’s profile here regarding the certificates explic-
itly contradicts Huang’s testimony. We conclude, as the
Eighth Circuit did in Cao v. Gonzalez, that the inconsistency
was substantive and that without additional corroborating
evidence, the IJ was entitled to find Huang’s testimony
implausible. Cao, 442 F.3d at 661.
We acknowledge that our holding may place applicants in
a difficult position, especially since the line between a
voluntary and a coerced abortion may sometimes be
No. 05-1711 9
blurred.2 But the contradiction between Huang’s character-
ization of the certificate and the analysis of the State Depart-
ment casts serious doubts on either the authenticity of the
document or its provenance. While this case predated the
REAL ID Act and Huang was not required to supply
corroborating evidence, see Diallo v. Gonzales, 439 F.3d at n.1,
the government at argument indicated that an affidavit from
Huang’s wife would have made his case for asylum much
stronger and more sustainable. We concur, and note that the
Third Circuit has held that even “using the pre-REAL ID
Act standard for reviewing IJ determinations concerning the
availability of corroboration,” it was reasonable for an IJ to
expect some corroborating evidence where an abortion
certificate is offered as proof of an involuntary abortion.
Chen, 434 F.3d at 220. We need not reach the issue of
corroboration here; the IJ did not demand any corroborating
evidence from Huang, but simply made an adequate
credibility determination on the basis of the available
evidence.
2
It is undisputed in this and many other cases that China
vigorously enforces its “one child” policy. (If the first child is a
girl, with some bureaucratic approval the parents may be allowed
to have a second child.) However, a mother of a first-born son
who is again pregnant may feel compelled to submit to a
“voluntary” abortion to avoid being captured later by the cadres
and forced to have an abortion. That may be what it takes to
obtain a certificate, but to label such an abortion “voluntary” is
questionable to say the least. The certificate should at least prove
she was pregnant; if she already has a son, one could assume she
had no choice but to abort the second baby. Perhaps the affidavit
that is missing in this case could set forth a scenario to corrobo-
rate what seems to be a Hobson’s choice inflicted upon Chinese
families.
10 No. 05-1711
Huang also argues that the IJ failed to give his case a
“particularized review” because it arbitrarily disregarded
sections of the State Department and Canadian reports
suggesting that forced abortions, while uncommon and
prohibited by government policy, do occur. See Toptchev v.
I.N.S., 295 F.3d 714, 723 (7th Cir. 2002) (appropriate to take
notice of State Department country report as long as Board
undertook a particularized review of the case). The BIA
must “consider the issues raised, and announce its deci-
sion in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely
reacted.” Mansour, 230 F.3d at 908, quoting Becerra-Jimenez v.
I.N.S., 829 F.2d 996, 1000 (10th Cir. 1987). Huang cites
Chitay-Pirir v. I.N.S., 169 F.3d 1079, 1081 (7th Cir. 1999), for
the additional proposition that the IJ’s “interpretation of the
evidence should be fully inclusive for an accurate review to
result,” and contends that this means that the IJ was re-
quired to specifically consider and discuss the parts of the
reports compatible with his allegations. He asserts that the
IJ ignored congruities between his testimony and the
reports, and that therefore he did not receive the “particu-
larized review” required by Toptchev, 295 F.3d at 723. But in
Chitay-Pirir, the IJ’s serious misunderstanding of the facts
and the lack of current information in the record precluded
a “discerning judgment” by this court. Chitay-Pirir, 169 F.3d
at 1081-82. Here, Huang has failed to show that the IJ made
any factual errors. He merely asserts that the IJ gave
insufficient weight to those parts of the report that are
arguably consistent with his testimony. Nor has he shown
that the IJ failed to make a “particularized review” of his
case. Toptchev, 295 F.3d at 723. Here, the IJ’s analysis, as
adopted by the BIA, shows that it did consider the issues
Huang raised, and found cogent and specific reasons, rooted
No. 05-1711 11
in the available country reports, to find that his testimony
was not credible.
III.
We hold that the IJ’s credibility determination, while
partially founded on mere speculation, was ultimately
based on substantial evidence in the form of Huang’s
submission of the abortion certificate. In denying Huang’s
petition for review, we note that it is not clear what will
become of him. Homeland Security Secretary Michael
Chertoff recently commented that China’s delay in taking
back emigrants has created a backlog of some 39,000
Chinese citizens in the United States. See Lara Jakes Jordan,
Chertoff: China won’t take back deportees, Associated Press,
March 14, 2006; US says China refuses deportees, BBC News,
March 16, 2006. It is unclear how many Chinese citizens
are currently detained in the United States awaiting repatri-
ation. The government was unfortunately unable to clarify
matters at oral argument, either as to the size of the backlog
or the extent to which it is the result of China’s inability or
refusal to process such returns. In any event, despite our
concerns, there are no “extraordinary circumstances”
present in this case that warrant granting Huang’s petition
for review. Giday, 434 F.3d at 550. The petition is therefore
DENIED.
12 No. 05-1711
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-14-06