Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2008

Hu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1981




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"Hu v. Atty Gen USA" (2008). 2008 Decisions. Paper 1206.
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                                                                  NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 07-1981
                                      __________

                                    SHAN QIN HU,
                                            Petitioner,

                                           vs.

                              ATTORNEY GENERAL OF
                               THE UNITED STATES,
                                           Respondent.
                                   __________

                         On Petition for Review of Order of the
                             Board of Immigration Appeals
                                 BIA No. A96-390-242
                          Immigration Judge: Annie S. Garcy
                                      ___________

                               Submitted on May 16, 2008
                                     ___________

          Before: MCKEE, GARTH, Circuit Judges, and IRENAS,* District Judge.
                           (Opinion Filed: May 19, 2008)


                                      ___________

                                       OPINION
                                      ___________



      *
       Hon. Joseph E. Irenas, Judge, United States District Court for the District of
New Jersey, sitting by designation.
GARTH, Circuit Judge:

       Shan Qin Hu (“Hu”) petitions this Court for review of the Board of Immigration

Appeals (“BIA”) order of January 10, 2007, affirming and adopting the Immigration

Judge’s (“IJ”) decision rendered on July 14, 2005, which denied Hu’s applications for

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”) based on adverse credibility findings. Because the IJ’s adverse credibility

determinations are supported by substantial evidence in the record, we deny the petition

for review.




                                             I.

       A native and citizen of China and born April 3, 1963, Hu arrived illegally in the

United States on April 3, 2004. On April 21, 2004, the Department of Homeland Security

charged Hu with removal pursuant to INA § 212(a)(7)(A)(i)(I) and INA §

212(a)(6)(C)(I). Having failed to appear at a hearing before the Immigration Judge on

July 1, 2004, Hu was ordered removed to China, in absentia. Hu’s counsel moved to

reopen, blaming himself for Hu’s failure to appear, and the motion was granted.

       Hu conceded the charges of removability, but sought asylum based on China’s

coercive population control policy. He alleged that his spouse was forced to undergo a

sterilization procedure on February 6, 1987 after the birth of their second son. He also

alleged that he feared arrest, detention, and torture, if deported to China, because he


                                             -2-
violated that country’s population control policy. In support of his claims, Hu submitted,

among other things, an x-ray showing that his spouse was sterilized, a medical report

verifying the x-ray, a letter from his spouse stating that she was sterilized, and a

certificate from the Huawu Village Committee confirming that his spouse was sterilized.

Hu also testified that he was beaten six months after the sterilization and threatened with

arrest if he complained about the population control policy, and that he and his family

were forced into hiding until Hu’s departure in 2004. Thus, he sought asylum under 8

U.S.C. §§ 1101(a)(42)(A)-(B).

       The Immigration Judge held that Hu lacked credibility on the issues of whether

his spouse was sterilized against her will and whether he was persecuted for opposition

to the population control policy. The IJ found problems with Hu’s demeanor during his

testimony and significant inconsistencies between the facts alleged in Hu’s asylum

application and his testimony. Moreover, the IJ noted that it was difficult to believe how

the same institution that allegedly persecuted Hu’s spouse would issue her a certificate

confirming her sterilization after she had been in hiding for seventeen years. Because

Hu’s testimony and supporting documentary evidence were not credible or believable,

the Immigration Judge found that Hu had not established that his spouse was sterilized

against her will or that he suffered persecution or had a well-founded fear of persecution.

Furthermore, the IJ denied Hu’s application for withholding of removal and protection

under the Convention Against Torture.


                                             -3-
       In his appeal to the Board of Immigration Appeals, Hu argued that the IJ’s

credibility findings were not supported by the record and that any inconsistencies

between his asylum application and testimony were either insignificant or explainable.

On January 10, 2007, the BIA dismissed the appeal on the grounds that the IJ’s

credibility findings were not clearly erroneous. Hu filed a timely petition for review,

arguing that the IJ’s adverse credibility findings are not supported by substantial

evidence and that therefore he is eligible for asylum. He does not raise any arguments

with respect to the IJ’s denial of withholding of removal or protection under the CAT.



                                             II.

       8 U.S.C. § 1252(a)(1) provides for judicial review of final orders of removal. See

Romanishyn v. Atty. Gen., 

, 180 (3d Cir. 2006). Where, as here, the Board

adopts the immigration judge’s decision and adds its own reasons, this Court reviews

both decisions. Fadiga v. Atty. Gen., 

, 153, n. 16 (3d Cir. 2007). The

standard of review for questions of law is de novo . 

Findings of fact are

reviewed for substantial evidence and, therefore, may not be set aside unless a reasonable

fact-finder would be compelled to find to the contrary. Gabuniya v. Atty. Gen., 

, 321 (3d Cir. 2006).




                                            -4-
                                           III.

       Based on a comprehensive review of the record, we find that there is substantial

evidence in support of the IJ’s adverse credibility determinations with respect to Hu’s

testimony and documentary evidence. Particularly damaging to Hu’s asylum claim is his

omission from his asylum application that he was beaten for his opposition to China’s

coercive population control policy and went into hiding with his family for seventeen

years. Such allegations, if indeed true, would be central to any asylum application.

Moreover, we find it hard to fathom that a village committee – which allegedly

implements a coercive policy through beatings, detentions, and forced sterilizations –

would then issue a certificate confirming its acts of persecution to a victim who had been

in hiding for seventeen years. Therefore, we deny the petition for review.




                                            -5-