Filed: Oct. 14, 2005
Latest Update: Feb. 21, 2020
Summary: Cao emigrated to the United States in February 1992. This form of marriage is not legally recognized in, China and, thus, lacks valid documentation.persecution.5, Both Wang's 1999 asylum application statements and her, testimony at the evidentiary hearing are unhelpful in clarifying, this point.
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1531
WEN CAO AND ZHI FANG WANG,
Petitioners,
v.
ALBERTO R. GONZALES,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Gary J. Yerman on brief for petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Linda S. Wernery, Senior Litigation Counsel, Office of Immigration
Litigation, and Sarah Maloney, Attorney, United States Department
of Justice, on brief for respondent.
October 14, 2005
__________
*Alberto R. Gonzales was sworn in as United States Attorney General
on February 3, 2005. We have therefore substituted Attorney
General Gonzales for his predecessor in office as respondent in
this matter. See Fed. R. App. P. 43(c)(2).
SELYA, Circuit Judge. The petitioners, Wen Cao and Zhi
Fang Wang, are citizens of the People's Republic of China. They
seek judicial review of a final order of the Board of Immigration
Appeals (BIA) denying their applications for asylum and withholding
of removal. The petitioners assert that the BIA erred in affirming
a decision of an Immigration Judge (IJ) holding that they had
failed to carry their burden of showing a well-founded fear of
persecution should they return to China. Concluding, as we do,
that substantial evidence supports the IJ's adverse credibility
determination and, hence, the decision, we deny the petition.
The petitioners hail from Fujian province. They claim to
have been married under "customary law" in 1990.1 They resorted to
this form of marriage, they explain, because they were both
underage and local officials had denied their application to marry
legally.
Cao emigrated to the United States in February 1992. He
used a fake passport, but the authorities discovered the artifice
during his attempt to enter. The Immigration and Naturalization
Service (INS) questioned him under oath. He told the INS inspector
that he was unmarried and that he had come to the United States in
search of freedom and a better life.
1
By marriage under "customary law," the petitioners apparently
mean that they were united in a wedding ceremony witnessed by the
community. This form of marriage is not legally recognized in
China and, thus, lacks valid documentation.
-2-
Cao filed a request for asylum and withholding of
deportation on February 14, 1992. In his application, he
reiterated that he was not married. This time, however, he claimed
that his opposition to the Chinese government's policy relating to
individually owned businesses would result in persecution should he
return to his native land. He also asserted that he had been
arrested in 1991 for trying to escape from China and that both of
his sisters had been forcibly sterilized due to their opposition
to, and violation of, China's family planning policy.
The INS paroled Cao into the United States pending
disposition of his application. In September 1995, he asked for
permission to return to China, stating that he wanted to visit his
ailing mother. The INS found his supporting documentation
fraudulent and denied his request.
Wang entered the United States illegally in December
1995. She married Cao in a civil ceremony in April 1997. The next
month Cao submitted a second asylum application and Wang submitted
a parallel application. These applications stated that Cao and
Wang were seeking asylum because the Chinese government had
repeatedly refused their requests for permission to marry, brutally
forced Cao's sisters to undergo sterilization and abortion
procedures, and harassed Cao in his business pursuits when he
refused to pay bribes to government hierarchs.
-3-
Unimpressed, the INS instituted removal proceedings
against both Cao and Wang. Their removal proceedings and
applications for relief were consolidated. In June 1999, Cao and
Wang each filed statements in support of their applications. They
noted that Wang was pregnant and expressed fear that one or both of
them would be forcibly sterilized if they returned to China.2
The IJ held an evidentiary hearing on October 31, 2001.
Cao testified that he left China because he opposed that country's
family planning policy. He claimed that on September 10, 1991,
several family planning officials arrived at his house looking for
his eldest sister, Qui Jin Cao, who had been hiding from them.
When Cao blocked the door and tried to alert his sister, the
officials punched him in the nose and knocked him down.
Once they had subdued Cao, the intruders seized Qui Jin
and took her away. Because they threatened to return to "take
care" of him, Cao went to his grandmother's house to hide. Shortly
thereafter he paid a snakehead $30,000 to fabricate exit
documentation and smuggle him out of China.3
Wang testified more briefly. She said that her fear of
living in China began in 1990 when the government refused to allow
2
In contrast to her 1999 asylum statement, Wang did not allege
any connection between her pregnancy and her fear of returning to
China when she testified before the IJ. See text infra.
3
The snakeheads are a notorious group whose forte is smuggling
persons out of China in return for handsome fees.
-4-
her and her new husband (Cao) to register their marriage. She also
testified that both her older sister and her neighbor had been
subjected to coercive birth control measures. In 1995, her family
took out a high-interest loan and paid a snakehead $45,000 to
smuggle her out of the country.
The IJ found that both petitioners lacked credibility
and, therefore, had not established a well-founded fear of
persecution. Consequently, the IJ denied their applications for
relief and ordered the petitioners removed to China. The BIA
affirmed without opinion. This timely petition for judicial review
followed.
When the BIA affirms an IJ's decision without opinion,
this court reviews the IJ's decision directly, as if it were the
decision of the BIA. Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st
Cir. 2005). Thus, we focus on the IJ's findings, reviewing them in
accordance with the highly deferential substantial evidence
standard. Under that standard, the IJ's findings will be upheld as
long as they are "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." INS v.
Elias-Zacarias,
502 U.S. 478, 481 (1992). Put another way, the
findings must stand "unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
The focal point of this petition is the IJ's adverse
credibility determination. The petitioners assert that the IJ
-5-
improperly based this determination on minor inconsistencies and
understandable omissions. Relatedly, they assert that the IJ erred
in concluding that the petitioners' testimony failed to make out a
case for asylum.4
To be eligible for asylum, an alien bears the burden of
establishing his or her status as a refugee. See id. § 1158(b)(1).
The basic definition of a "refugee" is a person who is unwilling or
unable to return to their country of nationality due to
"persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion."
Id. § 1101(a)(42)(A). In 1996,
however, Congress expanded this basic definition so that "a person
who has been forced [by government action] to abort a pregnancy or
to undergo involuntary sterilization, or who has been persecuted
for failure or refusal to undergo such a procedure or for other
resistance to a coercive population control program, shall be
deemed to have been persecuted on account of political opinion . .
. ."
Id. The same amendment also provided that "a person who has
a well founded fear that he or she will be forced to undergo such
a procedure or subjected to persecution for such failure, refusal,
or resistance shall be deemed to have a well founded fear of
4
The law is well established that if a claim for asylum fails,
a counterpart claim for withholding of removal also must fail. See
Negeya v. Gonzales, 417 F.3d 78, 85 (1st Cir. 2005). Consequently,
we discuss here only the petitioners' claims for asylum.
-6-
persecution on account of political opinion." Id. The petitioners
seek to bring themselves within the confines of these amendments.
To establish refugee status, an alien must support his or
her claim through credible testimony. Settenda v. Ashcroft, 377
F.3d 89, 93 (1st Cir. 2004). Credible testimony, standing alone,
may be adequate to sustain the alien's burden of proof. See
id.
If the proffered testimony is not credible, however, it may be
either disregarded or sharply discounted, depending on the
circumstances. See, e.g., Laurent v. Ashcroft,
359 F.3d 59, 64
(1st Cir. 2004); see also Aquilar-Solis v. INS,
168 F.3d 565, 570-
71 (1st Cir. 1999).
Commensurate with the importance of credibility
determinations in immigration cases, an IJ cannot pull such
determinations out of thin air. Rather, the IJ must offer a
specific and cogent rationale for disbelieving the alien. El
Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003); Gailius v.
INS,
147 F.3d 34, 47 (1st Cir. 1998).
In this instance, the IJ found neither petitioner
credible. Moreover, she noted several inconsistencies in the
petitioners' testimony over the course of the proceedings. These
included (i) Cao's repeated assertions, in his initial application
and interview, that he was single as contrasted with his later
claim of a customary marriage to Wang in 1990; (ii) Cao's statement
on his initial application that he had been arrested and threatened
-7-
in 1991 as contrasted with his subsequent repudiation of those
statements during the evidentiary hearing; and (iii) Cao's use of
fraudulent documentation in his effort to obtain permission to
visit his ailing mother two months before Wang succeeded in having
herself smuggled into the United States (timing that the IJ
supportably termed "more than coincidental"). The IJ also found
that Cao's use of bogus documentation at multiple points in the
immigration process (e.g., his use of a fake passport at the time
of his entry and the fictitious "support" that he provided to show
his mother's supposed illness) implicated the petitioners'
credibility. Finally, the IJ drew a negative inference from the
absence of Cao's brother-in-law (Qui Jin's husband); even though
the brother-in-law lived in New York at the time of the hearing, he
did not testify — and Cao gave no indication as to why.
The petitioners only attempt to resolve one of the above-
mentioned inconsistencies. They argue that the discrepancy between
their customary marriage in 1990 and Cao's failure to reveal that
marriage in 1992 is not only unimportant but also easily explained
by Cao's confusion over the legality of the marriage. The first
part of this argument is wishful thinking; given what the
petitioners now say was their main reason for leaving China, we do
not think that Cao's misrepresentation of his marital status
sensibly can be viewed as unimportant. The second part of the
argument — that Cao was confused — is possible, but that
-8-
explanation was, within wide limits, for the IJ to assess. See
Laurent, 359 F.3d at 64 (explaining that evaluation of a witness's
veracity is a central part of the IJ's job). The IJ evidently
rejected the explanation and we are not at liberty to second-guess
her finding.
In all events, the petitioners do not challenge the other
specific instances of less-than-forthright testimony cited by the
IJ. Nor do they satisfactorily explain the shifting bases offered
by Cao in support of his multiple asylum applications.5 To cinch
matters, the veracity of both Cao's and Wang's testimony is clouded
by the United States Department of State's report entitled China:
Profile of Asylum Claims and Country Conditions (1998) (the Country
Conditions Report). The Country Conditions Report indicates that
most emigrants from Fujian province are motivated by economic
concerns as opposed to persecution. Cao, by his own admission, was
having trouble keeping his jewelry processing business afloat and
both he and Wang paid exorbitant fees to snakeheads to be smuggled
into the United States.6 Against this backdrop, the IJ's finding
5
Both Wang's 1999 asylum application statements and her
testimony at the evidentiary hearing are unhelpful in clarifying
this point. Basically, they reiterate Cao's statements. The two
new details that Wang adds to the story — the supposed
sterilization of her sister and her neighbor — were entirely
uncorroborated.
6
Not coincidentally, the Country Conditions Report reveals
that Cao's tale regarding his struggle with family planning
officials to protect his sister is commonly used by unmarried
couples from Fujian province who apply for asylum.
-9-
that the couple had — and yielded to — a strong economic incentive
to invent a narrative that might allow them to remain in this
country, seems unimpugnable.
On this record, we find the IJ's reasons in support of
her adverse credibility determination to be both specific and
cogent. We therefore uphold the adverse credibility determination.
That determination disposes of the petitioners' second
argument: that their testimony compels a finding of a well-founded
fear of future persecution. The only evidence in the record that
might support a well-founded fear of future persecution is the
petitioners' testimony. That can be disregarded because, as we
have explained, the IJ supportably determined that the petitioners
lacked credibility. Accordingly, the petitioners have failed to
establish a well-founded fear of future persecution.
We need go no further. For the reasons elucidated above,
the petition for review must be denied.
So Ordered.
-10-
