Filed: Dec. 17, 2013
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1887 HUI PAN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 19, 2013 Decided: December 17, 2013 Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges. Petition for review denied by published opinion. Chief Judge Traxler wrote the opinion, in which Judge Motz and Judge Keenan joined. ARGUED: Joshua A. Berman
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1887 HUI PAN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 19, 2013 Decided: December 17, 2013 Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges. Petition for review denied by published opinion. Chief Judge Traxler wrote the opinion, in which Judge Motz and Judge Keenan joined. ARGUED: Joshua A. Berman,..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1887
HUI PAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 19, 2013 Decided: December 17, 2013
Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit
Judges.
Petition for review denied by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge Motz and Judge Keenan
joined.
ARGUED: Joshua A. Berman, BLAINE L. GILBERT & ASSOCIATES, PA,
Baltimore, Maryland, for Petitioner. Stephen McCoy Elliott,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Stuart F. Delery, Principal Deputy
Assistant Attorney General, Civil Division, Erica B. Miles,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
TRAXLER, Chief Judge:
Hui Pan, a native and citizen of China’s Fujian Province,
petitions for review of the denial of his application for asylum
and withholding of removal based on his claim that government
officials will sterilize him if he returns to China. See 8
U.S.C. § 1101(a)(42). Pan also seeks review of the denial of
his claim under the Convention Against Torture (“CAT”). We deny
his petition.
I.
In November 2008, Pan left his home in the Jin’an District
of Fuzhou City for the United States. He ended up in Baltimore,
Maryland, where he is living with his uncle while his
application for asylum works its way through the system. Pan
arrived in the United States without valid entry documents, and
the Department of Homeland Security (“DHS”) detained him and
conducted a credible fear interview. During the interview, Pan
claimed that if he returned to China, family planning officials
would forcibly sterilize him for violating China’s one-child
policy. Pan stated that he and his wife, Xiaojuan Chen, already
had a daughter when Chen became pregnant in November 2008.
According to Pan, when local family planning officials
discovered the pregnancy, they forced Chen to have an abortion
and beat Pan for resisting. Pan explained that officials took
steps to sterilize Chen soon after the abortion but decided she
2
was “not suitable” for sterilization and that Pan would have to
be sterilized instead. J.A. 354. When the interviewing officer
asked why Chen was unsuitable, Pan answered that government
officials “did not explain why she was not able” to be
sterilized. J.A. 354. The asylum officer determined that there
was “a significant possibility that the assertions underlying
[Pan’s] claim could be found credible,” J.A. 350, and referred
his case for a full asylum determination by an immigration judge
(“IJ”).
The DHS placed Pan in removal proceedings, charging him as
removable for being present in the United States without having
been admitted. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Pan
conceded removability and applied for asylum, withholding of
removal and relief under the CAT. In support of his asylum
application, Pan submitted a written statement that elaborated
on various statements he made during his credible fear
interview. Pan stated that Chen was three months pregnant when
“Birth Control Bureau” personnel appeared at his home on
November 25, 2008, charging that Chen’s pregnancy violated Birth
Control Regulations and that an abortion was required. When Pan
attempted to stop them, three men “pushed [him], beat [him] and
kicked [him] with their feet.” J.A. 234. According to Pan’s
statement, officials then took Chen away, performed the abortion
and sent her back home the following day. Pan claims, moreover,
3
that government officials returned three days later on November
28 and took her away once again—this time to sterilize her. But
as it so happened, Pan alleged, doctors did not perform “a tubal
ligation because of her health reasons.” J.A. 235. Pan stated
that he was not at home during this second visit by government
officials, and that when he returned later that day, he found a
notice in his mailbox requiring him to report for sterilization
on November 30. After a discussion with his family, Pan decided
to flee to the United States without his family. He claimed
that he left home on the morning of November 30, 2008, and hid
with friends until the middle of December, at which time he left
for Beijing. Pan did not specify the location of his initial
hiding place. According to his application, Pan stayed in
Beijing for two days before flying to Rome. He spent one day in
Rome and then flew to Mexico before arriving in the United
States in January 2009. Pan’s asylum application made no
mention of a smuggler and did not address how, if at all, he
obtained the travel documents necessary to make such a trip.
Pan submitted several corroborating documents with his
application, including a “Fuzhou Surgery Certificate” dated
November 25, 2008, the day of the abortion, indicating that Chen
was pregnant and that “[i]nduced abortion is to be performed,”
J.A. 246; a “Fujian Women and Children Health Center Disease
Explanation Form” dated November 28, 2008, stating that
4
“[b]ecause . . . Chen has [a] serious skin disease (skin
damages) on her skin around the area where she had her
operation, it is not advisable for her to get a tubal ligation,”
J.A. 249; a notice dated November 28, 2008, that was purportedly
issued by the Fuzhou Jin’an District Birth Control Bureau
directing Pan to report for sterilization on November 30; a
marriage certificate for Pan and Chen; and a birth certificate
indicating a daughter was born to Pan and Chen on June 24, 2008.
During his asylum hearing, Pan testified he believed Chen
was two months pregnant at the time she was forced to undergo
the abortion, but admitted he “[could not] remember clearly.”
J.A. 97. Pan recalled that when Chen returned home after the
abortion, she had a bandage “[a]round [her] stomach,” looked
“pale and weak,” and had difficulty walking. J.A. 99-100. Pan
testified that he did not ask Chen for details about the
abortion. In explaining why family planning officials decided
to have him, rather than Chen, sterilized, Pan told the IJ that
Chen could not undergo a sterilization procedure because of a
“skin problem.” J.A. 77.
Pan also testified in greater detail regarding his flight
from China to the United States. According to Pan, on the same
evening he received notice that the government intended to
sterilize him, his parents located and hired a smuggler to get
5
him out of China. Pan, however, professed not to know whether
or to what extent his parents compensated the smuggler.
Pan stated that on the morning of November 30, 2008, he
left for the Mawei District in Fuzhou City where he hid with a
friend for two days. Pan testified that after hiding in Fuzhou
City for two days, he traveled to Beijing, as arranged by the
smuggler, where he stayed for another two days in a house owned
by someone he did not know. Finally, Pan testified that he flew
to Rome using a passport issued in his actual name and obtained
on his behalf from the Chinese government by someone he could
not identify. Pan indicated he no longer had this Chinese
passport because it was “exchanged” at some point for a Japanese
passport. From Rome, Pan flew to Mexico City and then rode in a
truck to the Texas border where he was detained by DHS.
The IJ asked Pan how he obtained his corroborating
documents for the asylum hearing. Pan responded that friends of
his parents brought the documents from China to the United
States “discreetly, secretly” and left them with his aunt and
uncle in Baltimore. J.A. 88. Pan was unable to name these
family friends or provide any contact details for them. When
asked to explain why he did not call his aunt or uncle as
witnesses to verify receipt of the documents, Pan told the IJ
they had to work.
6
The IJ found that neither Pan’s testimony nor his
supporting documentation was credible. The IJ offered several
reasons to support the adverse credibility determination.
First, the IJ found it implausible that Pan’s parents could
locate and hire a smuggler so quickly—on the same day, in fact,
that Pan allegedly learned the government intended to sterilize
him. Second, the IJ concluded Pan’s testimony about where and
with whom he hid in Fuzhou City was vague and inconsistent.
Third, the IJ was troubled by Pan’s inability to provide details
about Chen’s abortion beyond a general description of her
physical appearance and condition following the procedure.
Finally, the IJ expressed “major concern . . . as to the
authenticity of the documents.” J.A. 45. The IJ observed that
“the documents were allegedly provided by an unknown courier to
the uncle whose testimony could have been provided today, but
was not provided.” J.A. 46. Based on Pan’s lack of credibility
and the absence of credible independent evidence supporting his
claim, the IJ denied Pan’s application for relief.
The Board of Immigration Appeals (“BIA”) adopted and
affirmed the IJ’s decision and dismissed Pan’s appeal. In
concluding that the adverse credibility determination was not
clearly erroneous, the BIA reiterated the IJ’s specific reasons
and offered additional reasons to support the adverse
credibility determination. First, the BIA observed that when
7
Pan began his testimony about the events surrounding Chen’s
forced abortion, he did not mention being beaten by officials
even though that allegation was featured in his credible fear
interview and his asylum application. Second, the BIA concluded
that Pan’s testimony regarding how long Chen had been pregnant
at the time of the abortion was inconsistent with the Fuzhou
Surgery Certificate he submitted. Third, the BIA found that
Pan’s explanation that Chen could not be sterilized due to an
unspecified skin condition was vague and unclear. Having
concluded that the IJ “gave specific and cogent reasons for
finding Pan’s testimony incredible, which are supported by the
record,” the BIA examined the “corroborating documentation [Pan]
submitted” and concluded the documents were “inherently
unreliable,” J.A. 3, and that Pan did not authenticate the
documents through any means whatsoever. The BIA therefore
concluded that the corroborating evidence offered by Pan “did
not rehabilitate [his] testimony,” id., and that Pan failed to
establish eligibility for asylum or withholding of removal.
Finally, the BIA stated additionally that the “totality of the
record [did] not establish that [Pan] would more likely than not
be subject to torture upon his return to China” within the
meaning of the CAT,
id.
8
II.
“The scope of our review of a final order of removal
denying asylum [or withholding of removal] is narrow,” Dankam v.
Gonzales, 495 F.3d 113, 119 (4th Cir. 2007), requiring us to
affirm the order as long as it is not “manifestly contrary to
law,” 8 U.S.C. § 1252(b)(4)(C). Federal appellate courts review
factual findings, including adverse credibility determinations,
using the “substantial evidence” standard. See Djadjou v.
Holder,
662 F.3d 265, 273 (4th Cir. 2011);
Dankam, 495 F.3d at
119. Under this deferential standard, “administrative findings
of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B). Therefore, “[w]hen the denial of asylum is based
on the conclusion that the applicant failed to meet his
evidentiary burden for establishing eligibility, . . . then we
review for substantial evidence and must affirm a determination
of statutory ineligibility by the BIA unless the ‘evidence
presented was so compelling that no reasonable factfinder could
fail to find’ eligibility for asylum.”
Dankam, 495 F.3d at 119
(quoting INS v. Elias-Zacarias,
502 U.S. 478, 483-84 (1992)).
This means that when “the record plausibly could support two
results: the one the IJ chose and the one the petitioner
advances, reversal is only appropriate where the court finds
that the evidence not only supports the opposite conclusion, but
9
compels it.” Niang v. Gonzales, 492 F.3d 505, 511 (4th Cir.
2007) (alterations and internal quotation marks omitted).
Finally, “[b]ecause the BIA affirmed the IJ’s order and
supplemented it,” we apply these standards of judicial review to
“the factual findings and reasoning contained in both
decisions.”
Niang, 492 F.3d at 511 n.8.
III.
A.
The Immigration and Nationality Act (the “INA”) authorizes
the Secretary of Homeland Security or the Attorney General to
confer asylum on any alien who establishes refugee status. See
8 U.S.C. § 1158(b)(1)(A). An applicant for asylum bears the
burden of proving that he or she is a refugee, see 8 U.S.C. §
1158(b)(1)(B)(i), meaning that he or she is “unable or unwilling
to return to . . . [his or her] country because of persecution
or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion,” 8 U.S.C. § 1101(A)(42)(A). Applicants
“may satisfy this burden by showing either that they were
subjected to past persecution or that they have a well-founded
fear of future persecution on account of” one of the enumerated
grounds. Djadjou, 662 F.3d at 272 (internal quotation marks and
alterations omitted). The INA specifically permits victims of
China’s population control policy to seek political asylum:
10
[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 a
procedure or for other resistance to a coercive
population control program, shall be deemed to have
been persecuted on account of political opinion, and a
person who has a well founded fear that he or she will
be forced to undergo such a procedure or subject to
persecution for such failure, refusal, or resistance
shall be deemed to have a well founded fear of
persecution on account of political opinion.
8 U.S.C. § 1101(42). Pan attempted to prove his refugee status
by demonstrating a well-founded fear of future persecution.
Although Pan testified about past mistreatment he suffered while
resisting officials as they forcibly removed Chen to terminate
her pregnancy, the clear thrust of Pan’s claim is that he fears
family planning officials will sterilize him if he is removed to
China. 1
1
Because both the IJ and the BIA denied Pan’s claim based
on the adverse credibility determination, neither provided a
considered analysis of the extent to which Pan’s claim was
premised on past persecution or a fear of future persecution.
Regarding the past persecution component, the IJ expressed doubt
that the alleged beating would rise to the level of
“persecution” within the meaning of the statute. Ultimately,
the IJ did not decide the question and rested the denial of
relief on the adverse credibility determination. Although the
BIA adopted the denial of relief based on the adverse
credibility finding, it noted in passing that Pan “has not
asserted that he fears future persecution based on anything
other than his discredited claim of past persecution.” J.A. 4.
Our review of the record leads us to a different conclusion.
Pan’s claim of future persecution is based primarily on events
that occurred after his wife’s forced abortion. Pan’s testimony
regarding Chen’s abortion merely provides context for his well-
founded fear story. We recognize, moreover, that Pan cannot
base his asylum claim on Chen’s forced abortion, see Ni v.
(Continued)
11
The “well-founded fear of persecution” standard consists of
a subjective and objective component. The subjective part
requires the alien to “present[] candid, credible, and sincere
testimony demonstrating a genuine fear of persecution.”
Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004)
(internal quotation marks omitted). “The objective element
requires a showing of specific, concrete facts that would lead a
reasonable person in like circumstances to fear persecution.”
Id. at 187-88.
“The testimony of the applicant may be sufficient to
sustain the applicant’s burden 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 sufficient to demonstrate that the applicant is a
refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). Because “the
subjective element cannot generally be proved other than through
the applicant’s testimony,” however, “a determination that the
applicant’s testimony is not credible will generally defeat the
claim,” Camara v. Ashcroft, 378 F.3d 361, 369-70 (4th Cir.
2004), unless the would-be asylee is able to prove eligibility
Holder,
613 F.3d 415, 425 (4th Cir. 2010), but we see no reason
to think he was asserting such a derivative claim here.
12
with evidence independent of the discredited testimony, see
Tassi v. Holder, 660 F.3d 710, 725-26 (4th Cir. 2011).
B.
Under the REAL ID Act, an IJ, after “[c]onsidering the
totality of the circumstances, and all relevant factors,” may
make an adverse credibility determination based on factors such
as “responsiveness of the applicant . . . , the inherent
plausibility of the applicant’s . . . account, the consistency
between the applicant’s . . . written and oral statements. . . ,
the internal consistency of each such statement, the consistency
of such statements with other evidence of record . . . , or any
other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). A
credibility determination may rest on any relevant factor even
if such factor does not “go[] to the heart of the applicant’s
claim.” Id. The REAL ID Act’s credibility provision affords a
flexible, “commonsense approach” to credibility determinations,
Singh v. Holder,
699 F.3d 321, 329 (4th Cir. 2012) (internal
quotation marks omitted), but also ensures that an IJ does not
“cherry pick solely facts favoring an adverse credibility
determination while ignoring facts that undermine that result,”
Shrestha v. Holder,
590 F.3d 1034, 1040 (9th Cir. 2010); cf.
Shah v. Attorney Gen. of the United States,
446 F.3d 429, 437
(3d Cir. 2006) (“Although we don’t expect an Immigration Judge
to search for ways to sustain an alien’s testimony, neither do
13
we expect the judge to search for ways to undermine and belittle
it. Nor do we expect a judge to selectively consider evidence,
ignoring that evidence that corroborates an alien’s claims and
calls into question the conclusion the judge is attempting to
reach.”) (citation omitted). When an adverse credibility
determination has been made, this court must assess whether the
IJ or BIA identified non-speculative, “specific, cogent
reason[s]” in support of the adverse credibility finding.
Dankam, 495 F.3d at 120-21 (internal quotation marks omitted).
If an adverse credibility finding is based on speculation and
conjecture rather than specific and cogent reasoning, it is not
supported by substantial evidence. See Tewabe v. Gonzales,
446
F.3d 533, 538 (4th Cir. 2006).
C.
We conclude that the adverse credibility finding is
supported by substantial evidence. The IJ and the BIA
identified specific and cogent reasons supporting this finding.
Although not all of the stated grounds necessarily withstand
scrutiny, we conclude that, on balance, substantial evidence
supports the adverse credibility determination.
The BIA concluded that Pan’s testimony regarding why Chen
could not be sterilized—resulting in the government’s decision
to sterilize him instead—was vague and unclear. Although
vagueness and lack of specificity are not factors specifically
14
listed in the REAL ID Act’s credibility determination provision,
they qualify as “other relevant factor[s]” that an IJ may
consider. 8 U.S.C. § 1158(b)(1)(B)(iii); see Shrestha, 590 F.3d
at 1040; cf. Dorosh v. Ashcroft,
398 F.3d 379, 382 (6th Cir.
2004) (“Under BIA rulings, credibility encompasses not just
consistency but also plausibility and sufficient detail.”);
Elzour v. Ashcroft,
378 F.3d 1143, 1152 (10th Cir. 2004) (same).
Pan claims that family planning officials decided to sterilize
him after it was discovered that Chen could not be sterilized by
means of a tubal ligation because of a condition Pan described
as a “skin disease” or “skin problem.” To corroborate his
story, Pan offered a photocopy of a “Fujian Women and Children
Health Center Disease Explanation Form” stating that “[b]ecause
. . . Chen has [a] serious skin disease (skin damages) on her
skin around the area where she had her operation, it is not
advisable for her to get a tubal ligation.” J.A. 249. It bears
a seal and an illegible signature. The document does not
elaborate on Chen’s “skin disease” or explain the “operation”
referenced, and it is unclear whether or if the unspecified
operation caused or exacerbated some preexisting condition.
When asked to provide details about this operation, Chen
speculated that “[i]t should be the abortion” but admitted he
was not certain. J.A. 99. The only details Pan offered
regarding Chen’s post-abortion condition were that she looked
15
pale and weak, was having difficulty walking, and had a bandage
around her stomach. On this record, the BIA could only guess at
Chen’s purported skin disease, how and when she acquired it, and
how it would render her unsuitable for a sterilization
procedure.
Next, the BIA concluded that Pan’s credibility was
undermined by his vague and inconsistent testimony regarding the
circumstances of his flight from China to the United States.
Pan testified that on the same day he received the sterilization
notice, he consulted with his family and decided to flee China.
He testified that his parents were able to immediately arrange
for a smuggler to get him out of China to the United States
where he had family in Baltimore. According to Pan, he left
home and hid in another part of Fuzhou City for two days. The
IJ and Pan then had the following colloquy:
Q. . . . [W]hen did you leave your house?
A. In the morning of November 30, 2008 . . . .
Q. And where did you go?
A. I hid[] in Fuzhou City, Mawei District.
. . .
Q. With whom did you stay?
A. Somebody.
Q. Who?
A. Just myself.
16
Q. How is it you hid yourself? Where did you sleep?
Where did you eat? Where did you go at night?
A. I hid in the small room the entire day.
Q. In whose house was the small room located?
A. My friend helped me to arrange for that room.
Q. And who is your friend?
A. My friend, just my friend.
Q. You don’t have a name?
A. The name is Tao Wang.
Q. . . . You seem to be having difficulty, in my view,
of giving any specifics as to the name of the person
who helped you hide, and I'm wondering why. I want to
give you an opportunity to explain that.
A. Because even if I -- even when I told you this
person you would not know who this person was.
J.A. 81-82. The BIA agreed with the IJ’s conclusion that Pan’s
testimony was uncertain and unclear:
At first, [Pan] testified that he could not remember
the name of the person with whom he stayed while in
hiding. Then, he testified that . . . a friend helped
arrange the room. In his asylum application
statement, he stated that he stayed at a friend’s
house. According to [Pan’s] credible fear worksheet,
he did not mention going into hiding before leaving
China at his interview.
J.A. 9.
In response, Pan offers a plausible explanation for these
inconsistencies, suggesting that his uncertain testimony was
reasonable given the language barrier and that the IJ and BIA
simply misinterpreted his answers. An immigration judge,
17
however, is not required to accept every plausible explanation
offered by an asylum applicant. See Dankam, 495 F.3d at 122.
An applicant “must do more than offer a plausible explanation
for his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled to
credit his testimony.” Majidi v. Gonzales,
430 F.3d 77, 80–81
(2d Cir. 2005) (internal quotation marks omitted). Were we
considering this testimony in the first instance, we may well
have dismissed these minor inconsistencies as simply the result
of the language barrier. Our function, however, is not to re-
weigh the evidence and come to an independent conclusion but to
determine whether the record compels us to find Pan credible.
We conclude it does not. 2
2
By contrast, the BIA’s conclusion that Pan’s testimony was
implausible to the extent he claimed his parents immediately
secured aid from a smuggler is, on this record, based on
speculation. See Jiang v. Gonzales, 485 F.3d 992, 996 (7th Cir.
2007) (reversing an adverse credibility finding “based on [the
IJ’s] own assumptions of how long it should take Chinese
residents to arrange passage to the United States,” noting that
the “Fujian province has a ‘huge’ network of smugglers that work
in concert together” and that the IJ pointed to no evidence
suggesting the applicant was incapable of securing arrangements
to leave in one day). Here, the IJ pointed to nothing in the
record suggesting that a smuggler could not be hired
immediately. This particular basis for doubting Pan’s testimony
therefore does not constitute a cogent reason for the adverse
credibility finding.
18
D.
Finally, the BIA affirmed the IJ’s conclusion that Pan’s
corroborating documentation was unreliable and failed to
rehabilitate Pan’s credibility. “[W]hen a trier of fact is not
fully satisfied with the credibility of an applicant’s testimony
standing alone, the trier of fact may require the applicant to
provide corroborating evidence ‘unless the applicant does not
have the evidence and cannot reasonably obtain the evidence.’”
Singh, 699 F.3d at 329 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).
An adverse credibility finding is generally fatal to an asylum
claim unless the alien proves his refugee status through
evidence independent of his own testimony. See Rusu v. INS,
296
F.3d 316, 323 (4th Cir. 2002).
The agency’s conclusion was based primarily on Pan’s
failure to authenticate the documents. “[A]uthentication
requires nothing more than proof that a document or thing is
what it purports to be and, even though the Federal Rules of
Evidence spell out various options, the rules also stress that
these options are not exclusive and the central condition can be
proved in any way that makes sense in the circumstances.” Yongo
v. INS, 355 F.3d 27, 30–31 (1st Cir. 2004); cf.
Tassi, 660 F.3d
at 720-21 (explaining that the BIA may not reject corroborative
evidence solely because it does not comply with the Federal
Rules of Evidence). Other than his own discredited testimony
19
that he obtained the documents via an unknown courier who
brought the documents from China to his uncle in Baltimore, Pan
did not make any attempt to establish how he acquired the
documents or that the documents were genuine.
Notably, Pan did not avail himself of one obvious source of
corroborating evidence. As the IJ observed, Pan did not call
his uncle, who lived in Baltimore where the asylum hearing took
place, as a witness to verify that he received the documents
from China. Pan explained that his uncle could not testify
because he had to work, but Pan did not even submit an affidavit
from his uncle.
Likewise, there were no affidavits from Pan’s parents
establishing that they dispatched a courier with the documents.
See Chen v. Attorney Gen., 676 F.3d 112, 117 (3d Cir. 2011)
(concluding the BIA “properly observed that the Village
Committee document had not been authenticated by any means at
all, such as an affidavit from [applicant’s] mother as to how
the document was obtained”). Moreover, the BIA concluded some
of the documents were inherently unreliable for reasons other
than Pan’s failure to authenticate them. For example, the BIA
concluded that the sterilization notice had little probative
value because it was a photocopy of an unsigned document
allegedly issued by local officials. See Matter of H–L–H, 25 I.
& N. Dec. 209, 214 (BIA 2010) (according minimal weight to
20
documents purportedly issued by local officials that were
“unsigned and unauthenticated and fail[ed] to even identify the
authors”), abrogated on other grounds by Huang v. Holder, 677
F.3d 130 (2d Cir. 2012). Likewise, the BIA accorded little
probative value to the disease explanation form which did not
legibly identify the doctor who purportedly created the form and
set forth a confusing and “vague[] descri[ption]” of the skin
condition that rendered Pan’s wife unsuitable for sterilization.
J.A. 3. Finally, the BIA discounted the Fuzhou Surgery
Certificate, which purportedly established that an abortion was
performed, because it conflicted with Pan’s testimony regarding
how many months into her pregnancy Chen was when she had the
abortion. These determinations are supported by substantial
evidence, and the record does not compel a contrary conclusion. 3
3
Pan also contends that the BIA engaged in impermissible
fact-finding in violation of 8 C.F.R. § 1003.1(d)(3)(iv) by
identifying additional facts supporting the IJ’s determination
that the corroborating documents were unreliable. This argument
is wholly without merit. As we have previously explained, this
regulation “restricts the BIA’s ability to add new evidence to
the record, but does not prohibit the BIA from making a factual
determination upon de novo review of the record before it.” Lin
v. Mukasey, 517 F.3d 685, 692 n.10 (4th Cir. 2008) (alterations
and internal quotation marks omitted). The additional reasons
offered by the BIA to support its conclusion that Pan’s
documentation was unreliable are “properly characterized as . .
. factual determination[s] made upon de novo review of the
existing record, not as an instance of independent factfinding.”
Id. (internal quotation marks omitted).
21
IV.
For the foregoing reasons, we deny the petition to review
the BIA’s decision affirming the denial of asylum and
withholding of removal. To the extent that Pan petitions for
review of the BIA’s denial of relief under the Convention
Against Torture, we conclude the agency’s decision is supported
by substantial evidence. The BIA reviewed the record and
reasonably found that the totality of the circumstances fails to
establish Pan would “more likely than not . . . be tortured if
removed to the proposed country of removal.” 8 C.F.R. §
1208.16(c)(2).
PETITION FOR REVIEW DENIED
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