Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4574




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-4574


                                     RONG YI NI,

                                            Petitioner,

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                            Respondent.



              On Petition for Review of the Board of Immigration Appeals
                                (BIA No. A73 583 589)


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 12, 2006

       Before: SMITH, ROTH, Circuit Judges, and IRENAS,* Senior District Judge.

                              (Filed: December 21, 2006)




                                       OPINION




   *
   Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
IRENAS, Senior United States District Judge.

        Petitioner, Rong Yi Ni, seeks review of the decision of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision that Petitioner was

ineligible for asylum , withholding of removal and relief under the Convention Against

Torture.1 For the following reasons, the Petition will be denied, except that it will be

granted as to the finding of fraudulent filing.



                                                   I.

        Petitioner is a woman presently in her late forties. She is a native and citizen of

the People’s Republic of China. She asserts that she left China on October 20, 1996, for

fear of forced sterilization by the government after the birth of her second child. She

applied for political asylum in the United States in 1997.

        Petitioner’s interactions with family planning officials in China began in 1987.

Officials came to Petitioner’s home and informed her that because she already had a

daughter, she must submit to having an intrauterine device (“IUD”) inserted in her body

to prevent her from having another child within the next four years. Petitioner states she

was taken to a hospital and an IUD was inserted.

        In the year following the insertion, Petitioner attended two examinations to

monitor the status of her IUD. Petitioner asserts that the IUD caused pain in her

   1
     Petitioner did not challenge the denial of her application for relief under the Convention Against
Torture before this Court. Accordingly, we deem the issue waived. Lie v. Ashcroft, 

, 532 n.1
(3d Cir. 2005).

                                                   2
abdomen, which led her to seek out a private doctor to remove the IUD. She explains

that she avoided at least one subsequent IUD examination by staying at an unnamed

uncle’s house in Fuzhou, where family planning officials could not find her.

        Petitioner learned that she was pregnant with her second child in February, 1989.

Shortly thereafter, she went to live with her sister in Fenchen Town to avoid family

planning officials. Petitioner reports that while she was away, family planning officials

visited her home and spoke to her husband. The officials told her husband that Petitioner

was required to submit to an IUD examination. The officials allegedly threatened her

husband with sterilization if Petitioner failed to report for the examination and added that

if she was pregnant, family planning officials would abort the pregnancy.

        Petitioner gave birth on October 20, 1989, in her sister’s home with the assistance

of a midwife.2 Petitioner says she avoided giving birth in a hospital for fear of the family

planning officials. In that same month, just before giving birth and still purportedly

hiding from Chinese officials, Petitioner returned to her native village to report to a

government office to collect registration paperwork in connection with her marriage.3

        A month after delivering the baby, Petitioner returned home, where, she reports,

the family planning officials soon visited her. By this time, Petitioner’s husband had




   2
      At the asylum hearing, Petitioner did not indicate whether she gave birth to a son or daughter or the
child’s name.
   3
     Petitioner testified at the removal hearing that she married her husband in 1982 but did not register
the marriage until January, 1989.

                                                     3
already left China.4 The officials told Petitioner that she had violated the family planning

policy and that consequently she was required to pay a fine and undergo sterilization.

Petitioner testified that the officials “dragged” her out of her house because she refused to

go to the hospital with them.

          Petitioner further testified that she was taken to an operating room in Guntou

Hospital where a doctor concluded that Petitioner could not safely undergo sterilization

surgery because of her low blood pressure. As an alternative, the doctor inserted an IUD.

          On September 11, 1996, almost seven years after her husband’s departure from

China and the birth of her second child, Petitioner states she received5 the following

notice:

          You couple have got two children. You should get sterilized at the
          county service office of birth control within ten days after you receive
          the notice. You will accept disciplinary penalty if you delay.

(App., P.A. 2 at 57 (English translation)). Petitioner stated that she left her home the

same day to hide again at her sister’s house. Just over a month later, Petitioner left

China.6 She testified that she believes she will be sterilized, fined, and imprisoned if she

returns to China. As discussed infra, almost all of Petitioner’s testimony is


   4
       Petitioner testified that her husband left China one month before she gave birth to their second
child. Presently, Petitioner and her husband live together in the United States. She stated that her
husband’s application for asylum was previously denied.
   5
     Petitioner testified that the notice, addressed to her and her husband, was delivered to her home
when she was not there. According to Petitioner, her father-in-law actually received the notice, who then
informed Petitioner.
   6
       Petitioner’s two children remain in China, living with her sister.

                                                       4
uncorroborated, there being no independent evidence in the record to support it.



                                                   II.

        This Court has jurisdiction to review the BIA’s final removal order pursuant to 8

U.S.C. § 1252(a). The BIA’s three paragraph opinion did not summarily affirm the IJ’s

oral opinion but relied heavily on and adopted portions of the IJ’s opinion. Therefore, we

review the BIA’s opinion and also the IJ’s opinion to the extent it was relied upon by the

Board. Xie v. Ashcroft, 

, 242 (3d Cir. 2004). Factual determinations about

past persecution or fear of future persecution, as well as credibility determinations, are

reviewed under the substantial evidence standard. Chen v. Gonzales, 

, 216

(3d Cir. 2005). Thus, factual findings must be upheld “unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 

U.S.C.

§ 1252(b)(4)(B)).

         Adverse credibility determinations should be based on “inconsistent statements,

contradictory evidences and inherently improbable testimony,” regarding matters going

to “the heart of the asylum claim.” 

.7



                                                   A.



   7
      The REAL ID Act of 2005 changed the standard for credibility determinations. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). However, the change was prospective, and does not apply to Petitioner’s case, as
her asylum application was filed in 1997.

                                                    5
        In dismissing Petitioner’s appeal, the BIA explained, “the Immigration Judge

made a specific credibility finding supported by observations of the respondent’s

demeanor and problems within the respondent’s testimony and between the testimony

and the application for asylum.” (App., P.A. 1 at 4). Specifically, the “important”

inconsistencies the BIA and the IJ found “inadequately explained” were: (1) the fact that

Petitioner submitted the sterilization notice to the Department of Homeland Security in

connection with her asylum application but did not mention the notice during her asylum

interview; (2) the asylum officer’s “assessment / referral memo” (hereafter “referral

memo”) from the asylum interview indicated that Petitioner “‘voluntarily’” (voluntarily

in quotation marks in the memo) submitted to having an IUD inserted; (3) the asylum

officer’s summary recorded Petitioner’s statement that she suffered “no harassment or

intimidation” from the Chinese government from 1989 and 1996; (4) the fact that

Petitioner swore to the asylum officer that her asylum application (Form I-589) was true

and correct but later amended and supplemented her application by way of affidavit; and

(5) Petitioner’s testimony that she went to a government office to obtain her marriage

certificate when she was nine months pregnant. The BIA concluded that these

inconsistencies sufficiently discredited Petitioner’s testimony that she had suffered past

persecution or feared future persecution.8 The BIA also held, without much explanation,

   8
      Whether Petitioner’s testimony, if believed and sufficiently corroborated, would establish
persecution, is not an issue raised by this Petition. See 8 U.S.C. § 1101(a)(42) (“[A] person who has been
forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure
or refusal to undergo such procedure or for other resistance to a coercive population control program,
shall be deemed to have been persecuted on account of political opinion.”).

                                                    6
that Petitioner’s evidence was insufficient to support her asylum claim.

       This case presents familiar issues of credibility and corroboration. As this Court

has observed before, though “intuitively related . . . corroboration and credibility are

distinct concepts that should be analyzed independently.” Obale v. Attorney General, 

, 163 (3d Cir. 2006). A separate analysis is necessary because “even a credible

asylum applicant may be required to supply corroborating evidence in order to meet her

burden of proof.” 

. In many cases then, credibility is only half of

the equation. Corroboration of even entirely credible testimony may often be required to

meet an applicant’s burden of proof. Cf. 

(“If we assume that the IJ did not

make a valid [adverse] credibility determination, it does not affect the result in this case. .

. . both the Country Report’s conclusion that forced abortion is not government policy in

China, coupled with the almost total lack of corroboration of Chen’s story, constitutes

substantial evidence sufficient to deny the petition for review.”).

       Indeed, in the immigration context, the fundamental inquiry should focus more

clearly on corroboration, and less on credibility determinations.

       In an adversarial system of adjudication, it is typical that each side to
       the dispute has access to facts which might support its position or
       contradict the assertions of the other side. Notwithstanding the
       immense resources of the United States, asylum hearings, which
       sometimes depend on narrow and specific factual findings, often put
       the government at a substantial disadvantage. In a forced abortion
       case the Petitioner testifies to events which support her claim, events
       which have often taken place in a remote part of the world. The
       United States cannot, as a practical matter, send investigators to
       interview doctors, neighbors, or family members, inspect medical
       records, or use any other discovery techniques which would be

                                               7
        routine in domestic litigation.

.

        Immigration hearings qualitatively differ from the typical American model of civil

adjudication which is so heavily dependent on liberal pre-trial discovery of evidence. It is

asking a great deal of an IJ, much less a reviewing appellate court, to make informed and

reliable credibility determinations, particularly in light of cultural differences and

language barriers which may compound the problem. It is for this reason that “the need

for corroboration is particularly important.” 

. Refocusing the

analysis on when and what type of corroboration may be rightfully expected from an

asylum applicant in order to satisfy her burden of proof avoids the inherent problems in

relying almost exclusively on credibility determinations.9

        With this understanding, we turn to the present Petition. The BIA’s determinations

with respect to both corroboration and credibility are supported by substantial evidence.

(See App., P.A. 1 at 5) (“we agree with the Immigration Judge that the respondent’s

testimony is simply too inconsistent to be worthy of belief and the evidence insufficient to

support her claim to relief.”). The corroboration analysis requires: (1) an identification of

   9
      The relatively recent changes to the immigration laws recognize that the crux of asylum decisions is
corroboration, not credibility. With respect to sustaining an applicant’s burden of proof in asylum cases,
the INA instructs that “The testimony of the applicant may be sufficient without corroboration, but only if
the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to
specific facts.” 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added). Thus, pursuant to the statute,
corroboration will normally be required and its absence can only be remedied by specific credible
testimony. Further, the judicial review provisions of the INA provide that “No court shall reverse a
determination made by a trier of fact with respect to the availability of corroborating evidence, as
described in section 1158(b)(1)(B) . . . unless the court finds . . . that a reasonable trier of fact would be
compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).

                                                        8
facts for which it is reasonable to expect corroboration; (2) the presence or absence of

such corroboration in the record; and (3) the adequacy of applicant’s explanation for its

absence. 

; 

(citing Abdulai v. Ashcroft, 

, 554 (3d Cir. 2001)).

        The IJ’s opinion explained that he required corroboration of Petitioner’s assertion

that it is China’s policy to forcibly sterilize women with two children. Particularly in

light of the fact that Chinese law prohibits involuntary sterilization and abortion, the IJ

reasoned, Petitioner should be expected to put forth some other evidence, in addition to

her own testimony, which would demonstrate that Chinese law “is not followed by the

local government.” (App., P.A. 1 at 14).

        The Petitioner submitted an English translation of a purported sterilization notice.

The original Chinese version of this document was not available to the IJ. Petitoner’s

counsel has advised this Court that the original was submitted in connection with

Petitioner’s husband’s failed application. Neither the IJ nor the BIA considered the

sterilization notice sufficient corroboration of Petitioner’s assertion in this regard.

This Court does not disagree with that determination. The notice was not authenticated in

any manner. While Liu v. Ashcroft holds that not every asylum applicant must

authenticate documents in the manner prescribed by 8 C.F.R. § 287.6, it is clear that some

sort of authentication is required.10 

, 533 (3d Cir. 2004) (explaining that §


   10
      As noted in 

n.9, Fujian Province (Petitioner’s province) has “a major
problem with false documents.”

                                                   9
287.6 is not the “exclusive means” for proving a document’s authenticity and stating that

the applicant “should have been allowed to attempt to prove the authenticity of the

abortion certificates through other means.”).

        Moreover, almost every factual assertion of Petitioner’s testimony, including the

fundamental assertion that she gave birth to two children,11 is completely without

corroboration, even though some amount of corroboration could have been easily

presented. At the very least, it was reasonable to expect Petitioner to corroborate her

own testimony with her husband’s testimony. Yet, when the IJ questioned why her

husband was not present to testify at the asylum hearing, Petitioner stated, “He’s working

today.” (App., P.A. 2 at 37). After several more questions about Petitioner’s explanation

for her husband’s absence, to which Petitioner gave no responsive answer, the IJ

suggested that her husband did not come to the hearing because “he’s not supposed to be

present in the United States anymore. . . . He’s evading law enforcement.” (App., P.A. 2

at 38). Petitioner answered, “Yes, yes, yes, I’ve - - yes, I, I fear that, that he will be- - he

would be sent to China and, and he would be sterilized and fined and imprisoned, and,

and also his boss told him that he has to work . . . the boss wouldn’t let him get take [sic]

off . . . he asked.” (App., P.A. 2 at 38).

        Thus, Petitioner’s explanation for the lack of corroboration was internally




   11
       For example, there is no evidence in the record demonstrating that Petitioner communicates with
her children (whose names she did not identify), or her sister in China, who purportedly is raising
Petitioner’s children.

                                                  10
inconsistent and improbable.12 Petitioner first explained that her husband was working.

Her second explanation was that he feared deportation and his boss told him he must

come to work. Then she said that her husband asked for time off and was denied. As the

IJ observed, not only are the statements inconsistent with each other,13 it is improbable

that Petitioner’s husband would choose going to work over testifying at the asylum

hearing. (App., P.A. 2 at 37) (IJ: “what’s more important, . . . going to work today, or

you getting asylum?”). Accordingly, we conclude that substantial evidence supports the

BIA’s and IJ’s decision that Petitioner’s testimony was not sufficiently corroborated.

        Likewise, substantial evidence supports the adverse credibility finding. As stated

previously, adverse credibility determinations should be based on “inconsistent

statements, contradictory evidences and inherently improbable testimony,” regarding

matters going to “the heart of the asylum claim.” 

. At least two of

the five inconsistencies found by the IJ are substantial and go to the heart of Petitioner’s

asylum claim.14 First, when Petitioner was interviewed by the asylum officer, she did not

make any mention of the sterilization notice which she now asserts was the immediate



   12
       Issues of corroboration and credibility sometimes intersect at this last step of the three-step
corroboration analysis. An applicant’s explanation for the absence of corroboration can be inadequate if
the explanation is found to be not credible.
   13
       One would not ask an employer for time off to attend the hearing if there was no intention to attend
the hearing for fear of arrest and deportation.
   14
       Because we find the two inconsistencies discussed infra sufficient to support the BIA’s decision,
and in light of our independent conclusion regarding lack of corroboration, the Court expresses no
opinion regarding the other inconsistencies relied upon by the BIA.

                                                   11
cause of her flight from China to the United States. While it is undisputed that Petitioner

submitted the sterilization notice with her original application, Petitioner has put forth no

adequate explanation for her failure to talk about the notice in her interview.

       Petitioner asserts that the notice caused her to abruptly leave her home the very

day on which she received it, never to return. In this context, it is both inconsistent and

inherently improbable that Petitioner would completely fail to discuss the notice in her

asylum interview (the whole purpose of which was to determine her reasons for fleeing

her home country), if she did in fact receive such a notice and fear that she would be

sterilized. Accordingly, the IJ reasoned, “[i]nasmuch as this would have been a very

traumatic event in the respondent’s life in China and formulate one of the foundation

blocks of her application for asylum, [if true] it . . . doubtless would not have been

omitted from her interview with the asylum officer in 1997.” (App. P.A. 1 at 17). This

conclusion is supported by substantial evidence.

       Second, Petitioner stated in her asylum interview that she was not harassed or

intimidated by the family planning officials for seven years after Petitioner claims she

narrowly escaped sterilization in 1989. Then, inexplicably, in 1996, Petitioner states she

received a notice of sterilization, even though she had not become pregnant in the

intervening years and the government authorities knew her husband had left China over

seven years prior. Such inconsistencies constitute substantial evidence supporting the IJ’s

and BIA’s conclusions that Petitioner’s testimony was not credible.

       Because substantial evidence supports both the corroboration and credibility

                                             12
findings, the Petition for review with respect to asylum will be denied.15



                                                   B.

        Petitioner also requests that her Petition be granted on the ground that her due

process rights were violated at the removal hearing and by the BIA’s decision. Petitioner

asserts that her due process rights were violated when the IJ admitted the asylum officer’s

memorandum report into evidence without the officer’s own testimony and without

admitting the officer’s handwritten notes (taken during the asylum interview) from which

the formal memorandum report was created.

        “Because the Federal Rules of Evidence do not apply in asylum proceedings, the

test for admissibility of evidence is whether the evidence is probative and whether its use

is fundamentally fair so as not to deprive the alien of due process of law.” Ezeagwuna v.

Ashcroft, 

, 405 (3d Cir. 2003). Petitioner asserts that Ezeagwuna supports

the conclusion that her due process rights were violated. However, we find Ezeagwuna

readily distinguishable.

        This Court held that Ezeagwuna’s due process rights were violated when the BIA

heavily relied upon a letter drafted by a State Department official which forwarded results

of an investigation by a Foreign Service post. 

. We

concluded that the letter lacked reliability and trustworthiness for several reasons,

   15
       Accordingly, the Petition is also denied with respect to withholding of removal. See 

(“An applicant who does not qualify for asylum necessarily does not qualify for withholding
of removal.”).

                                                  13
including that the letter contained “multiple hearsay of the most troubling kind;” the

record contained no information about the investigator or investigation upon which the

letter was based; and the letter was only produced to the applicant a few days before the

final asylum hearing. 

        This case, however, involves a routine memorandum report from an asylum officer

interviewing the Petitioner. Thus, there is little basis to question its reliability and

trustworthiness. The memorandum report does not contain the type of hearsay statements

that were contained in the Ezeagwuna letter.16 Nor is the source of the information

contained in the report unknown. Therefore, it was fundamentally fair to admit the

memorandum report.

        Likewise, it was fundamentally fair both to exclude the asylum officer’s

handwritten notes, and to conduct the hearing without the testimony of the asylum officer.

Neither omission raises serious questions about the reliability or trustworthiness of the

fact finding process given that the report, which was drafted with the intention that it

would be used at the asylum hearing, was admitted into evidence.

        Petitioner also asserts that the BIA violated her due process rights by failing to

remand the case to the IJ to consider the sterilization notice, when it appeared that the IJ

may have overlooked it. “The fundamental requirement of due process is the opportunity


   16
       Even under the Federal Rules of Evidence, the asylum officer’s report would likely be a business
record admissible under Fed. R. Evid. 803(6) (“Records of regularly conducted activity”). To the extent
that the report itself contained statements of Petitioner, she was available to testify about those statements,
and these statements might not even be defined as hearsay. Fed. R. Evid. 801(d)(1) and (2)(A).

                                                     14
to be heard at a meaningful time and in a meaningful manner. In adjudicative contexts

such as this one, due process requires three things. An alien: (1) is entitled to fact finding

based on a record produced before the decision maker and disclosed to him or her; (2)

must be allowed to make arguments on his or her own behalf; and (3) has the right to an

individualized determination of his [or her] interests.” Abdulai v. Ashcroft, 

,

549 (3d Cir. 2001) (internal citations and quotations omitted).

       As the BIA noted in its opinion, the sterilization notice was part of the record

before the IJ. The evidence in support of her asylum claim was submitted, Petitioner was

given ample opportunity at the asylum hearing to make arguments on her behalf, and an

individualized determination of her interests was made. Thus, Petitioner had a

meaningful opportunity to be heard in the first instance and remand was not required.

       Accordingly, the Petition will be denied as to the due process claims.



                                              C.

       Lastly, we do not agree with the IJ’s and BIA’s conclusion, based solely on the

adverse credibility determination, that Petitioner’s application was frivolous. In

Muhanna v. Gonzales, this Court explained that “frivolousness does not flow

automatically from an adverse credibility determination . . . Inconsistencies between

testimony and an asylum application, while certainly relevant to a credibility

determination that may result in the denial of an applicant’s asylum claim, do not equate

to a frivolousness finding under Section 1158(d)(6), which carries with it much greater

                                              15
consequences.” 

, 589 (3d Cir. 2005). A conclusion of frivolousness

requires “a finding of deliberate fabrication of a ‘material element’ of an application, plus

an opportunity for the alien to account for the inconsistencies.” Id.; 8 C.F.R.

§ 208.20. No such finding was made in this case, and the record does not support such a

conclusion. Accordingly, we will grant the Petition with regard to the frivolousness

determination.




                                           16