Filed: Jun. 24, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 6-24-2004 Liu v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 02-4334 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Liu v. Atty Gen USA" (2004). 2004 Decisions. Paper 539. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/539 This decision is brought to you for free and open access by the Opinions of the Unite
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 6-24-2004 Liu v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 02-4334 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Liu v. Atty Gen USA" (2004). 2004 Decisions. Paper 539. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/539 This decision is brought to you for free and open access by the Opinions of the United..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-24-2004
Liu v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 02-4334
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Liu v. Atty Gen USA" (2004). 2004 Decisions. Paper 539.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/539
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PRECEDENTIAL (Opinion Filed: June 24, 2004)
UNITED STATES COURT OF JOSEPH C. HOHENSTEIN (Argued)
APPEALS Nationalities Service Center
FOR THE THIRD CIRCUIT 1300 Spruce St.
Philadelphia, PA 19107
____________
Counsel for Petitioner
No. 02-4334
____________ ROBERT D. McCALLUM, JR.
TERRI J. SCADRON
GUI CUN LIU; XIU DING LIU, ANTHONY W. NORWOOD (Argued)
Office of Immigration Litigation
Petitioners Civil Division
U.S. Department of Justice
v. P.O. Box 878, Ben Franklin Station
Washington, DC 20044
John Ashcroft, ATTORNEY GENERAL
OF UNITED STATES OF AMERICA,
Counsel for Respondent
Respondent
____________________
____________________
OPINION OF THE COURT
ON PETITION FOR REVIEW OF AN ____________________
ORDER OF THE BOARD OF
IMMIGRATION APPEALS
ALITO, Circuit Judge:
(No. A73 168 631) Mr. Gui Cun Liu and M rs. Xiu
____________________ Ding Liu (“the Lius”) petition for review
of an order of the Board of Immigration
Argued: December 4, 2003 Appeals (BIA) affirming the denial of their
application for asylum and withholding of
Before: SLOVITER and ALITO, Circuit deportation. Specifically, the Lius allege
Judges, and OBERDORFER, District that the BIA erred in (1) affirming the
Judge* opinion of the Immigration Judge (IJ)
without opinion, in violation of their Due
Process rights, (2) improperly finding that
the Lius’ testimony was not credible, (3)
*
The Honorable Louis F. Oberdorfer, rejecting documentary evidence for failure
Senior District Judge for the District of to comply with the authentication
Columbia, sitting by designation. procedures detailed in 8 C.F.R. § 287.6,
and (4) ignoring favorable new evidence faith.
suggesting increased likelihood of
The Lius presented to the IJ
persecution in their home country.
documentary evidence supporting their
We agree that the IJ’s improper claims, including a pair of certificates
application of § 287.6 caused him to purportedly confirming that the two
disregard evidence that, if duly considered abortions had in fact been performed in
in the first instance, might have resulted in China on the dates specified. See A.R.
a favorable determination regarding 272-73, 445-46. The Lius’ counsel
credibility for the Lius. Because the explained, upon submission of this
adverse credibility finding was the crux of evidence, that it had proved impossible to
the order denying relief, we will grant the comply with the regulatory authentication
petition for review, vacate the order of the procedure set forth in § 287.6; he had
BIA, and remand. “attempted to comply with this procedure,
but [was] told by the Chinese officials at
I.
the provincial level that no such
The Lius, both citizens of the authentication was performed at that
People’s Republic of China, seek asylum level.” A.R. 268; see also A.R. 289 (letter
on the ground that they are unable to return from U.S. Consulate in China to Lius’
to their native country “because of counsel, explaining that no authentication
persecution or a well-founded fear of can be performed until documents have
persecution on account of race, religion, been signed and notarized by a local
nationality, membership in a particular Chinese foreign affairs official). The IJ
social group, or political opinion.” 8 nevertheless refused to accept this
U.S.C. § 1101(a)(42). In particular, the explanation:
Lius claim that Mrs. Liu was twice forced
The regulations are specific,
by the Chinese government to undergo an
Mr. Hohenstein. It says they
abortion,1 and that both face government
shall be certified. There’s
persecution on account of their Christian
little or no weight that I can
give a document that’s in
1 violation of the regulations,
8 U.S.C. 1101(a)(42) provides: “[A]
whether it be your client’s
person who has been forced to abort a
inability to obtain proper
pregnancy . . . shall be deemed to have
certification of a document
been persecuted on account of political
or wh atev er. The
opinion . . . .” See also In Re Matter of
regulations say the
C-Y-Z, 21 I. & N. Dec. 915, 918 (BIA
documents shall be. There
1997) (holding that past persecution of one
is no wiggle room there.
spouse can be established by coerced
So, what you’ll have to do
abortion or sterilization of the other
is, I’ll allow it to remain in
spouse).
2
evidence but there’s not changing your testimony.
much weight or any weight You just told me the nurse
that I can give a noncertified told you it was a baby girl
document. and it was dead, then you
say it was a baby boy and it
A.R. 184-85.
was dead.
After hearing and considering
A. No, I meant that the
testimony from both Mr. and Mrs. Liu, the
nurse was a girl.
IJ rejected their claims for asylum and
withholding of deportation. In so Q. Ma’am, just look this
deciding, the IJ relied on findings of way. You see the word
several internal inconsistencies in the stupid written across my
testimonies which rendere d them forehead?
“incredible.” See A.R. 79 (noting
A. No.
“contradictions between the respondents’
written applications and their testimony Q. You think I’m going to
b e f o r e t h e C o u r t ” a s we ll as believe you when you
“contradictions in the testimony given by change your testimony like
the respondents themselves”). In that and give me such a half
particular, the IJ noted one “dramatic” baked reason for changing
inconsistency (see A.R. 76) in Mrs. Liu’s the testimony?
testimony regarding her second abortion,
A. No, I did not change.
as reproduced in part here:
A.R. 214-15; cf. A.R. 306 (affidavit of
Q. Do you know if the baby
Mrs. Liu, stating that second aborted fetus
was born alive or if it was
was male). The IJ did not make reference
born dead?
to the abortion certificates in analyzing this
A. They, the nurse told me or any other perceived inconsistency cited
that it was a baby girl but in the final decision, although he did state
dead. at the opening of his opinion that he had
considered “all of the documentation that
Q. What did the nurse tell
has been submitted thus far by both sides
you again?
in this matter.” A.R. 66.
A. No, she told me it was a
On appeal to the BIA, a single
boy and it’s, it’s dead.
member of the BIA elected to affirm the
IJ’s decision without opinion, pursuant to
8 C.F.R. § 3.1(e)(4). This appeal
JUDGE TO MRS. LIU
Q. Wait, why do you keep
3
followed.2 must be because the IJ took her confusion
as evidence that the inconsistently-
II.
described fetus never actually existed.4 To
We begin our analysis by evaluating the extent that there exists competent
the IJ’s interpretation and application of documentary evidence to the contrary (that
§ 287.6 in effectively excluding the is, that the abortion was performed as
abortion certificates.3 We focus first on described by Mrs. Liu), the credibility
this evidentiary issue because we believe it determination of the IJ must accordingly
follows from the IJ’s reliance on Mrs. be called into question.
Liu’s testimony regarding the gender of
The authentication regulation of 8
the fetus that the IJ was under the
C.F.R. § 287.6 provides, in pertinent part:
impression that the second abortion had, in
fact, never occurred. In other words, if In any proceeding under this
Mrs. Liu’s confusion on this point is to be chapter, an official record or
understood as impugning her credibility, it entry therein, when
admissible for any purpose,
2
shall be evidenced by an
Because the BIA affirmed without official publication thereof,
opinion, it is the reasoning and decision of or by a copy attested by an
the IJ that we review on appeal. See Dia officer so authorized. . . .
v. Ashcroft, 353 F.3d 228, 243 (3d Cir. The attested copy, with the
2003) (en banc). additional foreign
3 certificates if any, must be
We speak of “exclusion” even though
certified by an officer in the
we recognize that the IJ technically
Foreign Service of the
admitted the certificates into evidence.
United States, stationed in
See A.R. 185. While the IJ’s evidentiary
the foreign country where
rulings are ambiguous as to whether he
the record is kept.
intended to give the certificates “little
weight” or “no weight,” see id., the fact
Id. (emphasis added). As noted earlier, the
that the IJ never referred to the certificates IJ focused on the word “shall” in applying
in his final decision suggests that they the regulation, emphasizing that it left him
were not given any weight in making the with “no wiggle room,” and that the
ultimate decision. That the opinion abortion certificates could hence be
contained boilerplate to the effect that “all
of the documentation” had been
4
considered seems to us irrelevant. See For example, it makes little sense to
A.R. 66. Of course, if a document is think that the IJ could have taken the
admitted into evidence with the caveat that inconsistency regarding g ender as
it will be given “no weight,” that is evidence that Mrs. Liu did indeed have the
tantamount to an exclusion from evidence. abortion, but did so voluntarily.
4
accorded only little or no evidentiary Moreover, we fully agree, as the
weight. A.R. 185. government states in its supplemental
brief, that “asylum applicants can not
Our precedent states that “[a]n
always reasonably be expected to have an
agency’s interpretation of its own
authenticated document from an alleged
regulation is ‘controlling . . . unless it is
persecutor.” Letter Brief at 3; cf.
plainly erroneous or inconsistent with the
Senathirajah v. INS, 157 F.3d 210, 215-16
regulation.’” Abdulai v. Ashcroft, 239
(3d Cir. 1998) (“It is obvious that one who
F.3d 542, 552 (3d Cir 2001), quoting
escapes persecution in his or her own land
Bowles v. Seminole Rock & Sand Co.,
will rarely be in a position to bring
325 U.S. 410, 414 (1945). At oral
documentary evidence or other kinds of
argument, we specifically requested
corroboration to support a subsequent
further guidance from the government as
claim for asylum. . . . Common sense
to its official interpretation of the
establishes that it is escape and flight, not
regulation. In its supplemental brief
litigation and corroboration, that is
submitted in response, the government
foremost in the mind of an alien who
contended that “8 C.F.R. § 287.6 is not an
comes to these shores fleeing detention,
absolute rule of exclusion, and is not the
torture and persecution.”). We believe that
exclusive means of authenticating records
the Lius should have been allowed to
before an immigration judge.” Letter Brief
attempt to prove the authenticity of the
at 4. In so doing, it cited with approval
abortion certificates through other means,
Khan v. INS, 237 F.3d 1143 (9th Cir.
especially where (as here) attempts to
2001), and Georgis v. Ashcroft, 328 F.3d
abide by the requirements of § 287.6 failed
962 (7th Cir. 2003), which held that “[i]t
due to lack of cooperation from
was error to exclude . . . official records
government officials in the country of
based solely on the lack of consular
alleged persecution.
certification.” Khan, 237 F.3d at 1144.5
The government contends that, in
While the government’s reading of
any event, the improper application of
§ 287.6 may not be the most obvious one,
§ 287.6 was not prejudicial here since
we cannot say that it is plainly erroneous
there was evidence in the record indicating
or inconsistent with the regulation.6
that official documents from Fujian (such
as the abortion certificates here) are
5
At least one additional court of appeals commonly forged and thus are “virtually
has recently adopted the holding in Kahn. useless” as cred ible co rrobo rating
See Yongo v. INS, 355 F.3d 27, 31 (1st evidence. Letter Brief at 4; see A.R. 379
Cir. 2004). (State Department Country Report for
6
Cf. Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 434 (1995) (“Though ‘shall’ sometimes use, or misuse, ‘shall’ to mean
generally means ‘must,’ legal writers ‘should,’ ‘will,’ or even ‘may.’”).
5
China). However, the government’s Specifically, we do not believe that
suggestion that the IJ relied (at least, in the other inconsistencies cited by the IJ,
part) on the Country Report in his rejection even when viewed together as a whole,
of the abortion certificates is simply amount to substantial evidence that the
inaccurate. It is perfectly clear that the IJ Lius were not credible. For example:
based his decision on § 287.6 alone. See
• The IJ found a “diametrical
A.R. 184-85; cf. A.R. 95-96 (rejecting
contradiction” in the fact
other evidence under § 287.6). We may
that Mr. Liu had listed only
not affirm the exclusion of evidence on
one child in his original I-
grounds entirely different from those relied
589 application, but later
upon by the agency. See SEC v. Chenery
testified that he had two
Corp., 332 U.S. 194, 196 (1947) (“[A]
children. A.R. 69. A
reviewing court, in dealing with a
cursory examination of the
determination or judgment which an
record reveals that, at the
administrative agency alone is authorized
time that the original I-589
to make, must judge the propriety of such
was filled out (November
action solely by the grounds invoked by
21, 1993), his second child
the agency.”).
had not even been born yet.7
We conclude that 8 C.F.R. § 287.6
is not an absolute rule of exclusion, and is
• The IJ found a discrepancy
not the exclusive means of authenticating
in the fact that Mrs. Liu
records before an immigration judge.
testified that she was (1)
Accordingly, it was legal error for the IJ to
required to check in with the
reject the abortion certificates on that
authorities every three
ground alone.
months following her first
III. abortion and (2) required to
check in with the authorities
Against the background of this
every three m onth s
erroneous evidentiary ruling, we now
f o l l o wing her s e c o nd
evaluate the IJ’s finding that the Lius were
abortion. A.R. 78-79. Of
not credible. Because the abortion
course, as a logical matter,
certificates, if found to be genuine, would
there is simply no conflict or
corroborate Mrs. Liu’s testimony that she
had two abortions performed on
her—whether or not she misspoke or got
7
confused (or lied) on the point of the In fact, the second child was added to
second fetus’s gender—we believe that the form when it was later corrected by
remand to the BIA to reconsider the Mr. Liu. Compare A.R. 398, 402 (original
credibility issue is appropriate. I-589) with A.R. 393, 397 (amended I-
589).
6
inconsistency between those accepted Christianity (by
two statements. “kneel[ing] down an d
accept[ing] [his] sin”),
which occurred immediately
• The IJ found that Mr. Liu before leaving China in
contradicted himself with November 1991. A.R. 131,
respect to the date and 134; cf. A.R. 396. Mr. Liu
location of his baptism. expressly distinguished this
A.R. 70. Mr. Liu repeatedly confession of faith from the
testified that he had been actual baptism which was
baptized in the United States performed later. A.R. 131.
in 1996, see A.R. at 131, There is no basis for a
137, which is consistent finding of a discrepancy
with the documentary here.
evidence presented, see
• Likewise, the finding of a
A.R. at 313. It is true that
discrepancy where Mrs. Liu
Mr. Liu once responded
alternately testified that she
with the date November 25,
was (1) four months and (2)
1991, when asked when he
five months along with the
had been baptized. A.R.
pregnancy at the time of the
130. This confusion almost
second abortion is trivial,
certainly resulted from the
and does little or nothing to
apparent difficulty the
contribute to substantial
translator had in expressing
evidence of falsehood on the
the concept of baptism. See
part of the Lius. A.R. 78;
A.R. 131-32.8 Mr. Liu’s
see Gao v. Ashcroft, 299
subsequent answers made
F.3d 266, 272 (3d Cir. 2002)
clear that what he had been
(minor inconsistencies not a
referring to in connection
proper f oundation for
with that date was the day
adverse credib ility
on which he form ally
determination).
• The IJ relied heavily upon
8 M r . L i u ’ s s ta t e m e n t
It is evident that translation difficulties
originally filed with his
seriously plagued the entire hearing. See,
signed I-589 form (and later
e.g., A.R. 103-104 (inconsistent testimony
retracted by him), in which
due to confusion regarding translation of
it was claimed that he had
“Catholic” and “Baptist”); A.R. 67-69
been jailed and fined for
(repeated questions yielding absurdly
failure to comply with the
nonresponsive answers).
7
one-child policy. A.R. 71- decision is based. We are obliged to
72. The IJ noted that, under remand to the agency to reconsider and
8 C.F.R. § 208.3, Mr. Liu’s reweigh the facts, rather than attempting to
signature on the form gave undertake that task ourselves. INS v.
rise to a presumption that he Ventura, 537 U.S. 12 (2002).9
was aware of the contents of
IV.
that application. But the IJ
did not explain why this We grant the Lius’ petition for
presumption had not been review, vacate the order of the BIA, and
successfully rebutted by remand to the BIA for further proceedings
o t h e r e v i d e n c e (m o s t consistent with this opinion.10
notably, the fact that the
form is filled out in English, 9
which Mr. Liu does not Specifically, our decision should in no
speak, without listing the way be read as requiring the BIA to find
name of a third-party that the abortion certificates are genuine.
preparer, as well as M r. Rather, the BIA may proceed on remand as
Liu’s testimony regarding it does with respect to any evidentiary
the explanation of the question, evaluating issues of materiality,
statement before the asylum relevance, probity, and the general
officer: “I said I didn’t requirements of due process. See 8 C.F.R.
know what it is”). A.R. at § 1240.7(a); Bustos-Torres v. INS, 898
162. F.2d 1053, 1055 (5th Cir. 1990). For
example, the BIA may (or may not) choose
The other inconsistencies cited by to order forensic testing of the original
the IJ as evidence of incredibility are certificates (as proposed by the Lius), take
similarly ill-foun ded, tr ivial , o r additional testimony, seek guidance from
nonexistent. Absent the one glaring State Department reports, or evaluate the
inconsistency regarding the baby’s gender efforts the Lius took in attempting to avail
(which may or may not be rendered less themselves of the regulatory certification
relevant in light of the consideration of procedure.
documentary evidence on remand), we do
10
not think that substantial evidence supports Our disposition of this case renders
the finding that the Lius were not credible. unnecessary any inquiry into the other two
arguments raised by the Lius on appeal.
Finally, we note that remand is
However, we note that the due process
appropriate where, as here, we have made
attack on the affirmance without opinion
a legal determination (e.g., regarding
procedures has essentially been foreclosed
a d m i s s i b i l i t y o f e v i d e n ce ) t h at
by our en banc decision in Dia v. Ashcroft,
fundamentally upsets the balancing of
353 F.3d 228 (3d Cir. 2003). We also
facts and evidence upon which an agency’s
note, with respect to the claim that the BIA
8
failed to consider new evidence regarding
“changed circumstances” in China, that
while generally the “only vehicle for
introducing new evidence post-decision is
a motion to reopen,” Walters v. Ashcroft,
2003 U.S. Dist. LEXIS 19715 (S.D.N.Y.
November 3, 2003), the BIA may choose
to consider this evidence on remand, if it
deems such action appropriate.
9
10
