Filed: Feb. 24, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-24-2004 Xie v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 02-3615 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Xie v. Atty Gen USA" (2004). 2004 Decisions. Paper 943. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/943 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the United 2004 Decisions States Court of Appeals for the Third Circuit 2-24-2004 Xie v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 02-3615 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Xie v. Atty Gen USA" (2004). 2004 Decisions. Paper 943. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/943 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
2-24-2004
Xie v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 02-3615
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Xie v. Atty Gen USA" (2004). 2004 Decisions. Paper 943.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/943
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PRECEDENTIAL Assistant Director
Anthony W. Norwood
UNITED STATES COURT OF Ethan B. Kanter
APPEALS FOR THE THIRD CIRCUIT John M . McAdams, Jr.
Jennifer A. Parker (Argued)
United States Department of Justice
No. 02-3615 Office of Immigration Litigation
Washington, D.C. 20044
XIN JIE XIE, Attorneys for Respondent
Petitioner
v. OPINION OF THE COURT
JOHN ASHCROFT, Attorney General
of the United States, SLOVITER, Circuit Judge.
Respondent
Petitioner Xin-Jie Xie (“Xie”) has
filed the pending Petition for Review of
the decision of the Bureau of Immigration
Petition for Review of an Order of Appeals (“BIA”) dismissing Xie’s
the Board of Immigration Appeals application for asylum and withholding of
(A-70-907-033) deportation under 8 U.S.C. §§ 1158,
1231(b)(3). In so ruling, the BIA
explicitly adopted the adverse credibility
Argued October 16, 2003 finding of the Immigration Judge (“IJ”).
Before: SLOVITER, ROTH, and I.
STAPLETON, Circuit Judges
Xie arrived in the United States on
(Filed: February 24, 2004) May 27, 1993 as a nonimmigrant visitor
for business. He testified his company
sent him to the United States “for a certain
Marco Pignone, III (Argued) kind of product and merchandise research
Wilson & Pignone team.” A.R. at 108.1 He was authorized to
Philadelphia, PA 19103
1
Attorney for Petitioner There is both an Administrative
Record, cited here as A.R., and an
Robert D. McCallum, Jr. Appendix, a portion of which is attached
Assistant Attorney General to the petitioner’s brief and the remainder
Civil Division in a second volume, which we cite as
Terri J. Scadron, App. The opinions of the IJ and the BIA
stay in this country for thirty days. He did 1974, 1977, and 1979 respectively. In his
not leave when his visa expired and on application for asylum, Xie alleged that he
January 7, 1997, the Immigration and seeks asylum because he fathered three
Naturalization Service (“INS”) charged children, which violated Chinese national
him with deportability under 8 U.S.C. § policy of family planning. Xie alleged that
1251(a)(1)(B). He conceded deportability, he was detained in 1976 after the birth of
but requested relief in the form of asylum his second child and was released after his
and withholding of deportation or, in the wife had an IUD loop inserted. In his
alternative, voluntary departure. Xie sworn statement supplementing his asylum
claims that he “has a reasonable fear of application, Xie notes that when his wife
future persecution if he is removed to became pregnant again in 1979 despite the
[China].” Petitioner’s Br. at 8.2 The IJ IUD, she went into hiding at a relative’s
found that Xie was not credible. The BIA home in another village and Xie went into
considered Xie’s appeal, which it hiding in yet another village, leaving his
dismissed with an opinion holding that the children in the care of his parents. Unable
IJ’s adverse credibility finding was to locate either Xie or his wife in their
supported by the record. home, the local authorities became angry,
broke his door and took some of the
Xie timely filed this Petition for furniture; he and his wife lost their jobs
Review and we have jurisdiction under 8 and were asked to pay a fine of 5,000
U.S.C. § 1252. When the BIA has RMB. 3 They did not have the money to
rendered its own opinion, we review the pay the fine and “We decided to leave this
decision of the BIA and not the IJ. Gao v. country. This is why I came to America to
Ashcroft, 299 F.3d 266, 271 (3d Cir. seek a better life.” A.R. at 308.
2002). In this case, however, for reasons
explained hereafter, we also have In his testimony at the hearing, Xie
jurisdiction to review the IJ’s decision. stated that after his wife had given birth to
their daughter in 1979, government birth
II. control officials took her to the Province
Hospital where she was forcibly sterilized.
Xie was married in 1973, and he
and his wife have three children, born in
3
Xie’s asylum petition states that
he and his wife were fined 5,000 RMB at
appear in both the Administrative Record the birth of their third child. Because
and the Appendix. We have chosen to there is nothing in the record to indicate
cite to them in the Appendix. that two separate fines were imposed and
the alleged 5,000 RMB fine is never
2
The brief actually states, “if he is again referred to, we will assume he
removed to Serbia” but we assume that referred to the 9,300 RMB fine discussed
was a typographical error. infra.
2
Xie claimed that thirteen years later, In 1996, Congress amended the
toward the end of 1992, birth control definition of refugee as follows:
officials came to his home and ordered
him to pay a penalty of 9,300 RMB. 4 Xie a person who has been
testified that after he learned of the fine, he forced to abort a pregnancy
argued with the birth control officials and or to undergo involuntary
told them he had no more money; they sterilization, or who has
beat him up, detained him for about a been persecuted for failure
week, and released him because of his or refusal to undergo such a
wife’s connections but told him he had to procedure or for other
pay the balance of the penalty due within resistance to a coercive
three weeks. Xie left China in February population control program,
1993. His wife and children remain in shall be deemed to have
China. been persecuted on account
of political opinion, and a
III. person who has a well
founded fear that he or she
In his brief Xie states that he will be forced to undergo
“established a well-founded fear of such a procedure or subject
persecution on account of his political to persecution for such
opinion as his wife was forcibly failure, refusal, or resistance
sterilized.” Petitioner’s Br. at 6. He shall be deemed to have a
argues that he is entitled to asylum as a we ll founded fea r of
“refugee,” defined in the statute as: “any persecution on account of
person . . . unable or unwilling to return to political opinion.
. . . [his or her] country because of
persecution or a well-founded fear of 8 U.S.C. § 1101(a)(42). The BIA
persecution on account of race, religion, extended this provision to apply to spouses
nationality, membership in a particular of persons who have undergone coercive
social group, or political opinion . . . .” 8 birth control procedures. In re C-Y-Z, 21
U.S.C. § 1101(a)(42). I. & N. Dec. 915 (BIA 1997).
Neither the BIA nor the IJ reached
the merits of Xie’s argument that he
4
We find nothing in the record to qualifies for asylum under the statutory
support the statement in Xie’s brief that definition of refugee. As th e
the penalty was $9,000. Petitioner’s Br. Government’s brief states, the IJ “denied
at 5. Instead, the IJ stated that after Xie’s Xie’s claim on the basis of an adverse
wife paid the officials 1,300 RMB the credibility determination and did not make
balance of 8,000 RMB was equivalent to an alternative finding as to whether Xie’s
approximately $1,000. evidence, if deemed credible, was
3
sufficient to meet his burden of proof.” The BIA failed to find past
Govt’s Br. at 3 n.2. Xie apparently agrees, persecution because it found Xie to be
as his counsel stated at the oral argument incredible. Our precedent is clear that
before us that the “only issue here is when the BIA defers to an IJ, we must
credibility.” review the IJ’s decision as the final agency
decision. See Abdulai, 239 F.3d at 549
In its opinion dismissing Xie’s n.2. In this case, the BIA both adopted the
appeal, the BIA held that the IJ’s adverse IJ’s adverse credibility determination and
credibility finding is supported by the discussed some, but not all, of the
record. It further stated, “[a] persecution underlying bases for the IJ’s adverse
claim that lacks credibility cannot satisfy credibility determination. As to the
the burdens of proof and persuasion remaining bases, the BIA also stated that
necessary to establish eligibility for “the Immigration Judge found several
asylum or withholding of deportation. See other inconsistencies and discrepancies
Matter of M-S-, 21 I. & N. Dec. 125 (BIA between the respon dent’s asylum
1995); see generally Abdulai v. Ashcroft, application and his testimony.” App. at 6.
239 F.3d 542 (3d Cir. 2001).” App. at 6-7.
We will therefore limit ourselves to the In Senathirajah v. INS, 157 F.3d
first issue as presented by the Government: 210 (3d Cir. 1998), which also involved an
“Whether the Board’s finding that Xie adverse credibility finding based, in part,
failed to meet his burden of proof is on an asylum application, we discussed
supported by substantial evidence where both the IJ and the BIA’s decisions. W e
Xie’s testimony and evidence contained did not consider the propriety of reviewing
several material inconsistencies, crucial both decisions, but we noted that “the
omissions, implausibilities, and was BIA’s ruling result[ed] in substantial part
refuted by the State Department Report from the deference it gave the immigration
and Comments?” Govt’s Br. at 3.5 judge’s decision,” and that the BIA
“appear[ed] to have substantially relied
upon the adverse credibility ruling of the
5
We therefore will not reach the immigration judge.” Id. at 216. Similarly,
provocative issues of statutory
interpretation touched upon at the oral
argument. One of the issues was whether establish an irrebuttable presumption.
the statutory language that a person who Another issue alluded to at the oral
has undergone an involuntary argument which we do not reach is the
sterilization and a person who has a fear effect of a time gap of more than 15
that she/he will be forced to undergo years between the spouse’s sterilization
such a procedure “shall be deemed” to and the application for asylum. We
have been persecuted on account of express no opinion on these issues and
political opinion or “shall be deemed to the Government’s brief does not discuss
have a well founded fear of persecution” them.
4
in Miah v. Ashcroft, 346 F.3d 434 (3d Cir. discrepancies and omissions
2003), we examined the decisions of both provide specific and cogent
the IJ and the BIA because the “BIA reasons for the Immigration
adopted the IJ's analysis on corroboration Judge’s credibility
while rejecting the IJ's conclusion determination; and (3) the
regarding credibility, a conclusion which alien has not supplied a
influenced the IJ's corroboration analysis.” convincing explanation for
Id. at 439. Likewise, the BIA in the such discrepancies and
instant case did briefly discuss many of the omissions. Matter of A-S-,
inconsistencies troubling the IJ and
stated supra, at 1109.
that “[it] believe[s] that the inconsistencies
and omissions mentioned by the App. at 6.
Immigration Judge actually exist in the
record.” App. at 6. Although it gave only Adverse credibility determinations
some examples of those inconsistencies, are reviewed under the substantial
the BIA also appears to have substantially evidence standard.
Gao, 299 F.3d at 272
relied upon the adverse credibility finding (citing Balasubramanrim v. INS, 143 F.3d
of the IJ. Accordingly, we have 157, 161 (3d Cir. 1998)). Under this
jurisdiction to review both the BIA’s and standard, the Board's adverse credibility
IJ’s opinions. determination must be upheld on review
unless “any reasonable adjudicator would
In its decision, the BIA stated: be compelled to conclude to the contrary.”
Id. (citing INA § 242(b)(4)(B), 8 U.S.C. §
We give significant weight 1252(b )(4)(B)) (internal quotation
to an Immigration Judge’s omitted). “[M]inor inconsistencies” do not
adverse credibility finding. provide an adequate basis for an adverse
See Matter of A-S-, 21 I&N credibility finding. Id. Because we
Dec. 1106, 1109 (BIA conclude that there is no reason to compel
1998); Matter of Burbano, a contrary conclusion, we uphold the
20 I&N Dec. 872, 874 (BIA BIA’s finding.
1994). Specifically, we
have stated that we accord One of the principal inconsistencies
deference to an adverse and omissions discussed by the BIA as
credibility finding based supporting the IJ’s finding of lack of
upon the inconsistencies and credibility was Xie’s failure to mention in
omissions regarding events his written asylum application that his wife
central to an alien’s asylum had been sterilized. App. at 6. The IJ
claim where a review of the stated, “If indeed his wife had been
record reveals that (1) such sterilized, this would be such a traumatic
discrepancies and omissions event in both his and his wife’s life that I
actually exist; (2) the find it implausible and incredible that this
5
would have been not mentioned to the application because he responded to
Immigration officer and would not have question 22 that he was not detained but to
been included in the I-589 application.” question 18 that he was detained after the
App. at 17. We have reviewed Xie’s birth of his second child. Finally, both in
asylum application and agree. In that Xie’s supplemental statement and his
application, Xie mentioned that his wife testimony he states that he was detained in
had an “IUD loop” inserted and that he 1992 following the fight he had with
was asked to undergo sterilization (which officials regarding his payment of the fine,
he apparently declined). A.R. at 308. which the IJ noted differed from the
There was no reference to his wife’s response given in his asylum application.
supposed forced sterilization. Given Xie’s App. at 18. Moreover, Xie’s asylum
appreciation of the relevance of compelled application did not mention any fight with
birth control, the BIA’s concern about officials. Inasmuch as Xie further testified
Xie’s failure to mention his wife’s forced that he was only detained once, these
sterilization in his original written asylum inconsistencies cannot be reconciled.
application is well taken. This is indeed a
significant event that one is not likely to We believe the inconsistency
forget. regarding Xie’s detention is material. He
purported to be able to tie the date of his
The BIA also noted the detention to a particular event. The IJ
inconsistency with respect to Xie’s found that this inconsistency “severely
claimed detention. In his asylum weakened” Xie’s credibility. App. at 18.
application, Xie stated that he was
detained in 1976 after the birth of his The BIA also concluded that Xie’s
second child 6 and was released only after testimony was not consistent with the
his wife had an IUD loop inserted. The implementation of the one-child policy.
BIA pointed out that the IJ noted that Xie App. at 6. Xie claims that his wife was
testified that he was detained after the birth forcibly sterilized in October of 1979 but
of his third child (which was in 1979). the BIA noted the date because “the ‘one-
App. at 6. The IJ noted an inconsistency child’ policy was not promulgated until
regarding Xie’s detention within the same 1979 or 1980,” (citing Bureau of
Democracy, Human Rights & Labor,
China–Country Conditions and Comments
6
We note parenthetically that it on Asylum Applications (Dec. 11, 1995)),
appears that his second child was born and “the birth control policy was not
July 13, 1977, A.R. at 88, 145, but this is implemented at the grass roots level until
not the relevant inconsistency as failure the early 1980s.” App. at 6. Xie criticizes
to remember the precise year of a the BIA’s interpretation of the China
detention 15 years earlier may be Country Report as stating when grassroots
explicable. A different inconsistency is implementation of birth control policies
noted in the text. began. The Government retorts that the
6
China Report Comments do indeed state 1980s in connection with the Chinese
that the family planning policy was not government’s population control policies,
promulgated until 1979. that Rep ort constitutes substantial
evidence in support of the BIA’s
We have previously stated, conclusion that Xie’s testimony was not
“Country reports . . . are the most consistent with the date of the
appropriate and perhaps the best resource implementation of the one-child policy.
for information on political situations in
foreign nations.” Zubeda v. Ashcroft, 333 The BIA also found Xie’s
F.3d 463, 477-78 (3d Cir. 2003) (internal “testimony improbable that several months
quotation and citation omitted). The after his fine was imposed for violations of
relevant part of the China Report states the birth control policies, which he did not
that “[b]y the mid-1970s, China had fully pay, he was issued an official
stepped up efforts to limit population and passport for public affairs on with which
had begun to popularize the two-child he was able to travel to the United States.”
family. In 1979, the PRC promulgated a App. at 6. The IJ also found it not
comprehensive and highly intrusive ‘one- plausible that “the Chinese Government
child’ policy. . . .” A.R. at 285. It issued him a passport, even though he
continues, “H ow family plan ning owed that Government a good portion of
personnel at the grass roots implemented the fine that had been levied against him.”
the policy in the early 1980s has been the App. at 15. At the oral argument before
subject of particular attention, but us, the Government offered some
criticisms of current methods continue.” elucidation of the significance of Xie’s
A.R. at 285. having received the passport on which he
traveled, as the passport for public affairs
Even assuming the Report was is different from the ordinary tourist
vague or ambiguous, so long as the BIA passport. We believe Xie’s attempt during
could have used the Report to conclude his testimony to explain the receipt of the
that Xie’s sterilization claim is untenable, passport “[b]ecause it was through a
the BIA is entitled to do so. In INS v. friend’s connection they gave [him] a list,”
Ventura, 537 U.S. 12, 17 (2002), the A.R. at 114, is sufficiently non-responsive
Supreme Court reversed a decision of the and unconvincing to support the BIA’s
Court of Appeals for the Ninth Circuit that conclusion.
decided an asylum application instead of
remanding to the BIA. The Court noted in Because the BIA referenced with
dictum that the Ninth Circuit’s reliance on approval the IJ’s findings of “other
the relevant State Department report was inconsistencies and discrepancies,” we
in error because the report was sufficiently review those inconsistencies even though
ambiguous to suppo rt the BIA ’s they were not specifically referred to in the
conclusion. Because the Report relevant BIA’s decision. The IJ noted that Xie
to this case expressly refers to the early stated on his asylum application that after
7
the birth of his third child he and his wife pay for a trip back to China. The IJ stated
both lost their jobs, but in his testimony that Xie “could have paid this fine while
Xie stated that he did not lose his job in working and living here in the United
China. Moreover, there was nothing in the States. He opted not to do so.” App. at
record to reflect that his wife had ever 21. It was the IJ’s opinion that Xie “is not
worked in China. paying the fine as a excuse for not
returning to his country.” App. at 21.
The IJ noted Xie’s contradictory
testimony regarding when his belongings Xie’s sole explanation for the
were confiscated. Xie stated that in July inconsistencies is to attempt to lay the
1979, when he returned to his village to responsibility on the travel agent who
see his children, his parents informed him filled out the asylum application. He
that Chinese officials had broken down his testified he had no idea what it was. A.R.
door and taken all of his belongings while at 125. The IJ stated:
he was away. He also testified that his
wife told him that since he has been here the Court will not buy into
in the United States in 1993, the an individual trying to put
government has taken all of his blame on either an attorney
belongings. Although he testified to two or a travel agency or anyone
insta n c e s w h e n t h e g o v e rn m e n t else in the completion of the
confiscated his belongings, both his I-589 as a scapegoat to
asylum application and sworn statement avoid being found incredible
discuss only one such incident. 7 because of contradictions
and a conflict between the
It was also evident that the IJ testimony given and the
disbelieved Xie’s testimony that he left his d o c u m e n t a r y e v i d en c e
wife and children in China and is afraid to presented. On redirect
return home because he would be required examination the respondent
to pay the balance of the fine of about again stated for the record
$1,000. Xie had been working in the that he does not know what
United States for a number of years, and is contained in his affidavit.
sent $300 a month back to China for the
support of his family. App. at 21. He told App. at 19. The IJ viewed this explanation
his attorney that he has enough money to as suspect.
In this connection, we note that Xie
7
Xie’s supplemental statement had a responsible position in China. He
explicitly discusses the 1979 incident; was second in command at a factory that
the reference in his asylum application is manufactured religious incense papers
not dated but it also appears to reference with six or seven employees under him.
the 1979 incident. The IJ stated that he did not believe Xie
8
would “just allow[ ] any travel agent to put not a convincing response to the numerous
anything down on [his] application.” A.R. inconsistencies that the BIA and the IJ
at 141. The differences in Xie’s accounts noted.
of his detention are too specific and too
dissimilar to be attributed to the In a number of opinions this court
incompetency of the preparer. The has declined to give much significance to
strength of these omissions is sufficiently discrepancies in statements made when the
substantial to sustain the BIA’s adverse applicant has arrived at the point of entry.
credibility finding. The BIA’s assessment See, e.g., Balasubramanrim, 143 F.3d at
of Xie’s credibility on the various 162-63 (“[T]he hand written record of the
inconsistencies that it had noted was just airport interview . . . may not be reliable .
as damning, as the BIA stated “[w]e find . . . [T]he airport statement is not an
the respondent’s explanations of his application for asylum. The questions
inconsistencies to be unconvincing.” App. posed were not designed to elicit the
at 6 (citing Matter of A-S, 21 I. & N. Dec. details of an asylum claim, and it appears
1106, 1109 (BIA 1998)). Xie argues, “It is the airport examiner . . . had no interest in
unclear why the B oard and th e developing the details of a potential
Immigration Judge assume that Petitioner asylum claim.”); Senathirajah v. INS, 157
controlled the content of his original F.3d at 218 (holding “the immigration
application. It is apparent that while some judge and the BIA gave far too much
information is correct, other information is weight to the affidavit taken during
wrong.” 8 Petitioner’s Br. at 12. That is Senathirajah’s airport interview”). Those
cases differ from this case. Xie arrived
legally on an official visa on May 27,
8
The Petitioner also argues that the 1993. He did not complete his asylum
IJ and BIA reliance on the asylum application until almost a month later.
application when prepared by an Further, he was not questioned by
unauthorized representative (a travel potentially intimidating immigration
agent) is a violation of due process. officials, but by an agent of a travel
Petitioner brings this argument for the agency. There was no reason for him to
first time on appeal, and therefore there have been beset by the fear and confusion
is no record to review on this issue. that immigrants may experience during an
Section 1252(d)(1) of Title 8 provides airport interview.
that a court of appeals may review final
orders only if the alien has exhausted all We have also noted that
available remedies, and because this “immaterial discrepancies between airport
court has described statutory exhaustion interviews and subsequent testimony
requirements as being jurisdictional, should not be used to make adverse
Massieu v. Reno, 91 F.3d 416, 422 (3d credibility determinations.” Mulanga v.
Cir. 1996), we are without jurisdiction to Ashcroft,
349 F.3d 123, 137 (3d Cir.
decide this issue. 2003). However, as explained throughout
9
this opinion, the discrepancies in the IJ, provided the required “specific, cogent
instant case go to the heart of the claim. reasons” for the adverse credibility
finding.9 Senathirajah, 157 F.3d at 216.
The IJ concluded that based on his Nothing in the record compels a
adverse credibility determination, Xie has contrary conclusion, and accordingly, we
not established a well-founded fear of will deny the petition for review.
persecution if his application for asylum
were denied and he was returned to China.
Again, based on his view that Xie was not
honest, forthright, and credible, the IJ
concluded that Xie was not a person of
good moral character, and denied
voluntary departure. In its decision
dismissing the appeal, the BIA did not
consider the voluntary departure issue, but
inasmuch as it found that the IJ’s findings
of adverse credibility were supported by
the record, there was no need for it to do
so.
IV.
This court has held on more than
one occasion that we must sustain the 9
The IJ also based his adverse
BIA’s adverse credibility determination if credibility finding on Xie’s demeanor.
there is substantial evidence in the record We are aware of the skepticism of one of
to support it. See, e.g., Gao, 299 F.3d at our colleagues on the weight accorded to
272. We discussed the substantial demeanor, i.e. the “squirm” test, which
evidence test in a recent en banc decision he expressed in his separate opinion in
where we stated, “We look at an adverse Dia, 353 F.3d at 273-80 & n.8 (McKee,
credibility determination to ensure that it J., concurring in part and dissenting in
was appropriately based on inconsistent part). In this case, the IJ explained the
statements, contradictory evidences, and basis for his opinion, i.e. that Xie kept
inherently improbable testimony . . . in his hands “firmly placed in his lap” while
view of the background evidence on testifying to rather easy questions but put
country conditions.” Dia v. Ashcroft, 353 his hands in front of his face when asked
F.3d 228, 249 (3d Cir. 2003) (en banc) questions that were difficult to answer.
(internal quotations and citations omitted). App. at 19. The BIA opinion did not
refer to Xie’s demeanor and we therefore
After consideration of the record, do not rely on this aspect of the IJ’s
we conclude that the BIA, and before it the opinion.
10
