Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit
6-11-2007
Liu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1953
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation "Liu v. Atty Gen USA" (2007). 2007 Decisions. Paper 965. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/965
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 University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Case No: 06-1953
YOUGZHAO LIU, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent
On Petition for Review of Final Decision of the Board of Immigration Appeals BIA No. A95-872-608 Immigration Judge: Hon. Charles M. Honeyman
Submitted under Third Circuit LAR 34.1(a) June 7, 2007
BEFORE: SMITH and GREENBERG, Circuit Judges, and POLLAK,* District Judge
(Filed: June 11, 2007)
OPINION OF THE COURT
SMITH, Circuit Judge.
* Honorable Louis H. Pollak, Senior Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation. Petitioner Yougzhao Liu, a citizen of the People’s Republic of China, 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 (“CAT”).* For the following reasons,
the Petition will be denied.
Liu entered the United States in April 2002 without possessing or presenting any
valid entry document. In December 2002, Liu applied for political asylum, withholding
of removal, and withholding under the CAT. In January 2003, an Asylum Officer
interviewed Liu, who claimed that he feared persecution because of the enforcement of
China’s one-child family planning policy. Liu alleged that his wife underwent multiple
forced abortions, and that both he and his wife faced the possibility of sterilization upon
his return to China. The Asylum Office referred the case to an IJ in New York. Also in
January 2003, the Government initiated removal proceedings against Liu through a
Notice to Appear, which was served on Liu at the end of the month. Liu appeared before
the IJ in February 2003, where he conceded removabilty. The IJ in New York granted
Liu’s motion to change venue, transferring the removal proceeding to Philadelphia. On
* The IJ had jurisdiction pursuant to 8 C.F.R. § 1208.2(b). The BIA exercised jurisdiction under 8 C.F.R. § 1003.1(b). It appears that Liu appealed to the BIA only the denial of his asylum application, and that his brief on this appeal is limited to that issue. Our review, then, is limited to that issue only. See In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003); 8 U.S.C. § 1252(d). We do note that, because Liu does not satisfy the standards for asylum eligibility, he cannot satisfy the more stringent standard for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47-48 (3d Cir. 1991). 2 September 23, 2004, Liu’s hearing on his application was held in Philadelphia before a
new IJ. The IJ admitted several pieces of evidence, including the Notice of Removal,
Liu’s application, several documents Liu submitted, the Department of Homeland
Security’s Consular Investigation Report, and a State Department report. The IJ issued
his oral decision on September 23, 2004, denying Liu’s application for asylum,
withholding of removal, and relief under the CAT. The IJ ordered Liu’s removal to
China. The IJ concluded that Liu had failed to meet his burdens of proof and persuasion
of establishing asylum, withholding of removal, or past or future persecution in China.
On February 22, 2006, the BIA summarily affirmed the IJ’s decision, and ordered Liu
removed.
This Court has jurisdiction to review the BIA’s final removal order pursuant to 8
U.S.C. § 1252(a) and (d). This Court reviews final decisions of the BIA that are based on
factual findings to determine whether they are supported by substantial evidence. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992); Lusingo v. Gonzales, 420 F.3d 193, 199 (3d
Cir. 2005). Because the BIA summarily affirmed the IJ’s decision, we review the IJ’s
findings of fact as conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B); Wang v. Gonzales, 405 F.3d 134,
138 (3d Cir. 2005).
The IJ’s September 23, 2004 oral opinion sets forth the reasons why Liu’s petition
must be denied. Liu stated that he has a wife and one child, both of whom are still in
China. Liu said that his wife was forced to have an intrauterine device (“IUD”) implanted
3 after the birth of their child, but eventually became pregnant again. Liu asserted that his
wife was forced to undergo an abortion and had another IUD implanted. Liu’s family
paid a private doctor to have this IUD removed, and his wife became pregnant again.
After this second allegedly coerced abortion, Liu stated that officials told both of them
that they faced sterilization if she became pregnant again. He alleged that his family was
fined by the local village committee for violating China’s family planning policy. Liu
testified that the first abortion certificate from the hospital is missing, but he did produce
a certificate for the second abortion. However, the Consular Report, prepared specifically
for Liu’s case, investigated the validity of this certificate by contacting the hospital that
allegedly produced it. The Lianjiang County Hospital stated that the certification seal on
Liu’s document did not match the shape of the seal actually used by the hospital.
The DHS Consular Report also noted that only county-level officials in Fujian
Province had the authority to fine policy violators, while Liu’s fine receipts stated that
these fines were issued by the local village committee. The IJ stated that “[i]f the fine
receipts are not genuine, then it undermines the credibility of the claim overall.” The IJ
noted that “[t]here is evidence from the Government in this case as to defined law of
China, but there is no rebuttal evidence leading to a contrary conclusion in this Court’s
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Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit
6-11-2007
Liu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1953
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation "Liu v. Atty Gen USA" (2007). 2007 Decisions. Paper 965. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/965
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 University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Case No: 06-1953
YOUGZHAO LIU, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent
On Petition for Review of Final Decision of the Board of Immigration Appeals BIA No. A95-872-608 Immigration Judge: Hon. Charles M. Honeyman
Submitted under Third Circuit LAR 34.1(a) June 7, 2007
BEFORE: SMITH and GREENBERG, Circuit Judges, and POLLAK,* District Judge
(Filed: June 11, 2007)
OPINION OF THE COURT
SMITH, Circuit Judge.
* Honorable Louis H. Pollak, Senior Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation. Petitioner Yougzhao Liu, a citizen of the People’s Republic of China, 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 (“CAT”).* For the following reasons,
the Petition will be denied.
Liu entered the United States in April 2002 without possessing or presenting any
valid entry document. In December 2002, Liu applied for political asylum, withholding
of removal, and withholding under the CAT. In January 2003, an Asylum Officer
interviewed Liu, who claimed that he feared persecution because of the enforcement of
China’s one-child family planning policy. Liu alleged that his wife underwent multiple
forced abortions, and that both he and his wife faced the possibility of sterilization upon
his return to China. The Asylum Office referred the case to an IJ in New York. Also in
January 2003, the Government initiated removal proceedings against Liu through a
Notice to Appear, which was served on Liu at the end of the month. Liu appeared before
the IJ in February 2003, where he conceded removabilty. The IJ in New York granted
Liu’s motion to change venue, transferring the removal proceeding to Philadelphia. On
* The IJ had jurisdiction pursuant to 8 C.F.R. § 1208.2(b). The BIA exercised jurisdiction under 8 C.F.R. § 1003.1(b). It appears that Liu appealed to the BIA only the denial of his asylum application, and that his brief on this appeal is limited to that issue. Our review, then, is limited to that issue only. See In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003); 8 U.S.C. § 1252(d). We do note that, because Liu does not satisfy the standards for asylum eligibility, he cannot satisfy the more stringent standard for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47-48 (3d Cir. 1991). 2 September 23, 2004, Liu’s hearing on his application was held in Philadelphia before a
new IJ. The IJ admitted several pieces of evidence, including the Notice of Removal,
Liu’s application, several documents Liu submitted, the Department of Homeland
Security’s Consular Investigation Report, and a State Department report. The IJ issued
his oral decision on September 23, 2004, denying Liu’s application for asylum,
withholding of removal, and relief under the CAT. The IJ ordered Liu’s removal to
China. The IJ concluded that Liu had failed to meet his burdens of proof and persuasion
of establishing asylum, withholding of removal, or past or future persecution in China.
On February 22, 2006, the BIA summarily affirmed the IJ’s decision, and ordered Liu
removed.
This Court has jurisdiction to review the BIA’s final removal order pursuant to 8
U.S.C. § 1252(a) and (d). This Court reviews final decisions of the BIA that are based on
factual findings to determine whether they are supported by substantial evidence. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992); Lusingo v. Gonzales, 420 F.3d 193, 199 (3d
Cir. 2005). Because the BIA summarily affirmed the IJ’s decision, we review the IJ’s
findings of fact as conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B); Wang v. Gonzales, 405 F.3d 134,
138 (3d Cir. 2005).
The IJ’s September 23, 2004 oral opinion sets forth the reasons why Liu’s petition
must be denied. Liu stated that he has a wife and one child, both of whom are still in
China. Liu said that his wife was forced to have an intrauterine device (“IUD”) implanted
3 after the birth of their child, but eventually became pregnant again. Liu asserted that his
wife was forced to undergo an abortion and had another IUD implanted. Liu’s family
paid a private doctor to have this IUD removed, and his wife became pregnant again.
After this second allegedly coerced abortion, Liu stated that officials told both of them
that they faced sterilization if she became pregnant again. He alleged that his family was
fined by the local village committee for violating China’s family planning policy. Liu
testified that the first abortion certificate from the hospital is missing, but he did produce
a certificate for the second abortion. However, the Consular Report, prepared specifically
for Liu’s case, investigated the validity of this certificate by contacting the hospital that
allegedly produced it. The Lianjiang County Hospital stated that the certification seal on
Liu’s document did not match the shape of the seal actually used by the hospital.
The DHS Consular Report also noted that only county-level officials in Fujian
Province had the authority to fine policy violators, while Liu’s fine receipts stated that
these fines were issued by the local village committee. The IJ stated that “[i]f the fine
receipts are not genuine, then it undermines the credibility of the claim overall.” The IJ
noted that “[t]here is evidence from the Government in this case as to defined law of
China, but there is no rebuttal evidence leading to a contrary conclusion in this Court’s
view that would be sufficient to rebut the adverse inferences triggered by the overseas
report [regarding the fines].”
4 Liu has not presented any evidence or argument that would compel us to
reasonably conclude that the IJ’s factual determinations were incorrect. The Consular
Report analyzed family planning regulations in Fujian province and concluded that
village committees have no authority to issue fines that would have led to the production
of the fine receipts Liu entered in the record. The IJ went so far as to state that “[i]f there
were objective evidence presented that village committees could indeed, and indeed do
issue a fine either on their own or in cooperation with high Government officials, or in
violation of formal Government policies, but, nevertheless, decisions have been made at
the local level, then it is very possible that this decision and the doubts that the Court has
about the respondent’s testimony, and ability to meet his burden of proof overall could
possibly have even been resolved in his favor.” The absence of such evidence, the
contrary evidence in the Consular Report, and the questionable abortion certificate
prevent this Court from concluding that the IJ erred in its factual determinations. We will
therefore deny, based on the record before us, 8 U.S.C. § 1252(b)(4)(A), Liu’s petition for
review.