Filed: Jan. 30, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 1-30-2009 Liu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-3294 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Liu v. Atty Gen USA" (2009). 2009 Decisions. Paper 1967. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1967 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 1-30-2009 Liu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-3294 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Liu v. Atty Gen USA" (2009). 2009 Decisions. Paper 1967. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1967 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-30-2009
Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3294
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Liu v. Atty Gen USA" (2009). 2009 Decisions. Paper 1967.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1967
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3294
YONG WEI LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A96-009-449
Immigration Judge: Hon. Charles Honeyman
Submitted Under Third Circuit LAR 34.1(a)
January 15, 2009
Before: SLOVITER, BARRY, and SILER, JR.,* Circuit Judges
(Opinion Filed: January 30, 2009)
OPINION
*
The Honorable Eugene E. Siler, Jr., Senior Circuit Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
PER CURIAM
Yong Wei Liu is a native and citizen of the People’s Republic of China. He
entered the United States from Mexico in August 2002. In December 2002, the
Government charged him as removable as an alien not admitted or paroled into the United
States. Liu conceded removability but sought asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
In his application and in his testimony before the Immigration Judge (“IJ”), Liu
claimed persecution on the basis of his participation in an underground church in China
and his evasion of arrest for church activities. The IJ denied Liu’s application. Although
the IJ believed Liu’s explanation of how and when he arrived in the United States, the IJ
otherwise made an adverse credibility finding based on a birth certificate issued when Liu
was in hiding in China, a minor inconsistency about the date of the underground church
incident (although the IJ acknowledged that the inconsistency could be a translation
error), and the implausibility of Liu’s escape from police. Allowing that “a reviewer of
[the] record could conceivably conclude, unlike [the IJ], that [the credibility concerns] are
not sufficiently substantial to justify an adverse credibility finding,” R. 36, the IJ went on
to state that the credibility concerns at least raised the question of whether Liu had
adequately corroborated his claim.
The IJ was not troubled by the absence of corroboration as to when Liu arrived in
the United States, finding his testimony credible on that point. However, the IJ concluded
2
that Liu’s wife should have testified to corroborate his claim because she knew what
happened to him in China and visited him while he was in hiding there. The IJ did not
accept Liu’s explanation that it would be too emotionally trying for her to testify because
she was five months pregnant. The IJ concluded that even if all credibility doubts were
resolved in Liu’s favor, Liu had not met his burden to show past persecution because he
failed to corroborate the “core of his claim” (and “not just [his] religious affiliation”). R.
39. The IJ acknowledged that Liu had produced letters from his parents, his cousin, and
his pastor, and noted that in many cases it would be unreasonable to expect additional
corroboration, but believed it was reasonable to expect Liu’s wife to testify. The IJ
concluded that without her testimony, Liu had not met his burden to qualify for asylum.
The IJ likewise concluded that Liu did not meet the higher standard for withholding. The
IJ separately rejected the CAT claim, concluding that there was insufficient evidence that
Liu would face torture on his return to China because of how he left the country. Liu
appealed to the Board of Immigration Appeals (“BIA”). In a short order, the BIA
adopted and affirmed the IJ’s decision.
Liu petitions for review. He argues that the IJ and the BIA erred in finding that he
failed to demonstrate a well-founded fear of persecution based on his religious beliefs and
the altercation with the police officers. He contends, as well, that the IJ substituted his
personal beliefs for evidence and claims not only that there was no basis for an adverse
credibility finding, but that the absence of his wife should not have been used as a basis
3
for a negative credibility finding. He asks that this matter be remanded for further
proceedings on his asylum, withholding, and CAT claims.1
Because the BIA relied on the IJ’s reasoning, the decisions of the BIA and the IJ
both must be considered. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We
review questions of law de novo, see Gerbier v. Holmes,
280 F.3d 297, 302 n.2 (3d Cir.
1
In opposing Liu’s petition, the Government argues we do not have jurisdiction to
review the agency decisions on Liu’s withholding and CAT claims because Liu did not
present arguments about them to the BIA. In his brief to the BIA, Liu largely challenged
the IJ’s credibility determination, R. 6-11, which underpinned the asylum and withholding
decisions, if not the rejection of the CAT claim. In any event, the BIA considered and
rejected all three species of claims (concluding that Liu did not show a “well-founded
fear of future persecution” or that “he will more likely than not face persecution or torture
upon return to the People’s Republic of China.”) R. 2. Accordingly, we have jurisdiction
to review the decision on the asylum, withholding, and CAT claims. See Lin v. Attorney
Gen. of the United States, 543 F.3d 114, 126 (3d Cir. 2008).
In the alternative, the Government argues that Liu waived his claims relating to
withholding and CAT relief because he did not raise them in his opening brief except to
mention that he would like his case remanded for “further prosecution of [his] prayer for
relief of asylum, withholding of removal, and protection from removal under the CAT”
Appellant’s Brief 12. Although Liu’s arguments relating to the credibility determination
remain equally applicable to the decision on the withholding claim, he focused on the
analysis of a well-founded fear of persecution and did not specifically extend his
arguments to the withholding claim in his brief (save for the brief mention already
discussed). Accordingly, Liu waived his claims relating to withholding and CAT relief.
See Voci v. Gonzales, 409 F.3d 607, 610 n.1 (3d Cir. 2005).
The Government also notes that Liu does not cite to the administrative record in
compliance with our Local Rule and provides a reference to cases in which courts
sanctioned parties for failure to comply with federal rules. While we will not penalize
Liu for his counsel’s failure to cite the administrative record in this case, we advise
counsel to more carefully support his factual assertions with references to the relevant
record in the future. See L.A.R. 28.3(c).
4
2002), and we review factual findings for substantial evidence, see Butt v. Gonzales, 429
F.3d 430, 433 (3d Cir. 2005).
The IJ first rejected Liu’s claim as to the adverse credibility determination. Like
other factual findings, an adverse credibility determination must be afforded substantial
deference, so long as it is supported by sufficient, cogent reasons. See Butt, 429 F.3d at
434. We must evaluate whether the credibility determination was “appropriately based on
inconsistent statements, contradictory evidences, and inherently improbable testimony . . .
in view of the background evidence on country conditions.”
Chen, 376 F.3d at 223.
In part, the credibility determination is built on uncertain fundament. Liu’s
recitation of the police attack for underground church activities remained the same
throughout the immigration proceedings. There is the minor factual inconsistency
identified by the IJ in the record – the May 6, 2002 date cited by Liu’s cousin in a letter
(which, as the IJ noted, could be a translation error).2 Such a minor inconsistency alone
would not merit the adverse credibility determination. And the other basis for the IJ’s
conclusion – the implausibility of Liu’s escape – does not provide much support because
it may have been based on an error and otherwise borders on speculation. The IJ
mischaracterized Liu’s testimony when he reported that Liu stated that he escaped by the
front door, R. 24; Liu maintained that he left by the back door. The IJ also wondered how
2
There is a second that went undiscussed – the date Liu cited at one point in his
testimony as the day before he left China (August 25, 2006, instead of August 5, 2006).
5
Liu managed to escape arrest after hitting a police officer in a scuffle, but Liu’s testimony
about his escape was not inherently improbable. According to Liu, his father interfered
with efforts to capture him, and the police were outnumbered by the church members, all
of whom were involved in the argument. As the IJ noted, Liu also got away from the
officers despite falling twice, but, from his testimony, he appeared to have at least a small
lead on the officers on leaving his house, and he was a young man familiar with the
landscape.
The third basis for the credibility finding raises some doubts about Liu’s account.
The date of issuance of the birth certificate is curious. Liu could not explain why it had
been issued when he was in hiding. R. 150-53. Why would Liu risk obtaining a
notarized birth certificate from the Chinese government while he was in hiding? Was Liu
trying to hide from the IJ his own efforts to get his birth certificate in advance of his
departure from China? Or was Liu dissembling when he stated that someone else
obtained it and a young boy brought it to the country because Liu wanted to hide the fact
that he had submitted a fraudulent document, as the IJ suggested? The notarization date
on the birth certificate appears to be contradictory evidence in support of the IJ’s finding.
However, the date of issuance does not go to the heart of Liu’s claim, which is his claim
of past persecution based on underground church activities.3 (It may nonetheless
3
The REAL ID Act changed the standard for credibility determinations, allowing an IJ
to make an adverse credibility determination “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim.” See 8 U.S.C. §
6
undermine a claim of future persecution, as it suggests the possibility that Liu was not in
hiding.)
Considered together, the current bases for the credibility finding fall short of being
sufficient, cogent reasons. The IJ suspected as much, R. 36, so he tried to fortify his
decision by concluding that even if Liu had been a credible witness, he had not properly
corroborated his claim. However, the IJ’s request for corroboration was not reasonable
under the circumstances.
“In general, it is reasonable to expect an applicant to corroborate facts which are
central to his or her claim and easily subject to verification.” Kayembe v. Ashcroft, 334
F.3d 231, 238 (3d Cir. 2003) (citations omitted). Liu provided corroboration of the facts
central to his claim (the letter from his parents, for example). The IJ, however, wanted
Liu’s wife to testify. The IJ explicitly decided not to “comment on what the wife might
have testified to,” but based his alternative conclusion that Liu could not meet his burden
to show eligibility for asylum based on the “evidentiary gap” caused by the absence of
Liu’s wife’s testimony. R. 40. However, although his wife was admittedly close to the
hearing site and could have appeared (albeit pregnant), she was not privy to facts central
to Liu’s claim of past persecution. Although she knew Liu had been in hiding, she was
not present when the police arrived at the underground church service. Perhaps she could
1158(b)(1)(B)(iii). However, the changes relating to credibility determinations became
effective prospectively on May 11, 2005, so they do not apply to Liu’s earlier filed case.
See 8 U.S.C. § 1158 note (Effective and Applicability Provisions, 2005 Act).
7
provide information about the possibility of future persecution, but she could not provide
details about any past persecution, which seemed to be the focus of the IJ’s analysis.
Without those details, it is difficult to see how she could have been “a star witness,” as
the IJ concluded. R. 39.
We do not comment on whether Liu should ultimately succeed on his claim for
asylum. However, because of the infirmities in the credibility and corroboration analysis,
we will grant the petition for review. We will vacate the BIA’s order and remand this
matter to the BIA for further proceedings consistent with this opinion.
8
