Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit
6-12-2008
Liu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3449
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation "Liu v. Atty Gen USA" (2008). 2008 Decisions. Paper 1028. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1028
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 2008 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 NOT PRECEDENTIAL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
No. 07-3449
YONG FU LIU, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A95 467 041) Immigration Judge: Honorable Charles M. Honeyman
Submitted Pursuant to Third Circuit LAR 34.1(a) June 12, 2008
Before: FUENTES, ALDISERT and GARTH, Circuit Judges
(Opinion filed: June 12, 2008)
OPINION
PER CURIAM
Yong Fu Liu has filed a petition for review of the final order by the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”’s) order of
removal and denial of Liu’s requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons that follow, we will
deny the petition for review.
The parties are familiar with the background of this case, and so we provide only a
summary of the proceedings. Liu is a native and citizen of the People’s Republic of
China and is from Fujian Province. In October 2001, he arrived in the United States as a
non-immigrant, but he overstayed his visa. He was placed in removal proceedings and
conceded removability. In 2002, Liu applied for asylum, withholding of removal, and
CAT relief. The IJ held an evidentiary hearing on Liu’s claims on January 18, 2006.
Liu was the only testimonial witness at the hearing. Liu stated that his wife was
forced to have an IUD inserted after the birth of their son in 1993. She kept the IUD for
about seven years, but she experienced pelvic inflammation from wearing the device.
After having it removed, she became pregnant in 2001. Because the pregnancy was not
authorized, she went into hiding with relatives and did not appear for her mandatory
periodic pregnancy checkups. Officials came to the house several times looking for her.
Ultimately, they detained Liu for three days in August 2001, informing him that someone
from their village had discovered his wife’s hiding place (in a larger village about 100
kilometers away) and reported her to the authorities. During that arrest, Liu stated that
the officials struck blows, leaving Liu with residual intermittent shoulder and back pain.
Meanwhile, the officials found his wife, forced her to have an abortion, and imposed a
10,000 yuan fine on the couple. Later, intending to compel sterilization on one spouse,
the authorities came for Liu because his wife could not be sterilized due to her ill health
2 following the abortion. Liu stated that he went into hiding, obtained a visa, and departed
China for the United States. Liu stated that after he left, the authorities came to the house
and harassed his wife, looking for Liu and asking where he was. Thus, due to threats and
harassment from officials, Liu’s wife moved to a new apartment. Liu testified that if he
were to return to China, he would be fined, beaten, arrested, and jailed for being illegally
smuggled out of China and for revealing the “national secret” regarding forced abortions
and forced sterilizations.
In support of his claims, Liu presented documentation, including an abortion
certificate from a hospital and a notice of the fine issued by his hometown Villager’s
Committee. However, the government submitted an investigation report from the
Department of State-American Consulate General in Guangzhou, China, indicating that
those two documents were fabricated. Liu did not contest the findings of the report.
Instead, he testified that the findings in the report constituted evidence of the Chinese
government’s plan to cloak its human rights abuses toward him. To bolster this rebuttal,
Liu submitted a letter from his wife. In her letter, she stated that the officials’ threats to
her at home resulted from the inquiry into the authenticity of the documents, and that the
officials accused her and Liu of revealing national secrets to the United States. Liu
testified that the threats to his wife occurred in February 2002. He later testified that his
wife was contacted by officials in June 2002, prompting her relocation to an apartment.
Yet when confronted with the information that the document verification request was not
made until later, in October 2002, Liu stated that he had made a mistake, and the officials
3 came to threaten his wife at their home in June 2003.
The IJ denied relief and ordered Liu’s removal from the United States. The IJ
found that Liu lacked credibility, relying on a number of inconsistencies within Liu’s
testimony along with the use of fabricated supporting documentation. On July 24, 2007,
in a separate opinion, the BIA dismissed the appeal, finding that the IJ’s adverse
credibility determination was not clearly erroneous. While the BIA adjudged some of the
inconsistencies cited by the IJ to be minor, the BIA agreed that the fabricated
documentation to support the claim of forced abortion and imposition of a fine “fatally
contradict” Liu’s claimed history. The BIA also noted its agreement that there was
insufficient evidence to support a CAT claim. This petition for review followed.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C.
§ 1252(a). Our review is for substantial evidence, that is, “[w]e will defer to and uphold
the IJ’s adverse credibility determinations if they are ‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole,’ but such
findings must be based on inconsistencies and improbabilities that ‘go to the heart of the
asylum claim.’” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal citation omitted). We must affirm
“unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v.
Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (citations omitted).1
1 Liu applied for asylum before May 11, 2005, and therefore the REAL ID Act’s new standard for credibility determinations does not apply to him. Chukwu v. Attorney
4 Liu challenges the agency’s determination that he was not credible. In particular,
he assails the reliability of the State Department’s investigative report concluding that his
supporting documents were fabricated.
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Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit
6-12-2008
Liu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3449
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation "Liu v. Atty Gen USA" (2008). 2008 Decisions. Paper 1028. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1028
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 2008 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
No. 07-3449
YONG FU LIU, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A95 467 041) Immigration Judge: Honorable Charles M. Honeyman
Submitted Pursuant to Third Circuit LAR 34.1(a) June 12, 2008
Before: FUENTES, ALDISERT and GARTH, Circuit Judges
(Opinion filed: June 12, 2008)
OPINION
PER CURIAM
Yong Fu Liu has filed a petition for review of the final order by the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”’s) order of
removal and denial of Liu’s requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons that follow, we will
deny the petition for review.
The parties are familiar with the background of this case, and so we provide only a
summary of the proceedings. Liu is a native and citizen of the People’s Republic of
China and is from Fujian Province. In October 2001, he arrived in the United States as a
non-immigrant, but he overstayed his visa. He was placed in removal proceedings and
conceded removability. In 2002, Liu applied for asylum, withholding of removal, and
CAT relief. The IJ held an evidentiary hearing on Liu’s claims on January 18, 2006.
Liu was the only testimonial witness at the hearing. Liu stated that his wife was
forced to have an IUD inserted after the birth of their son in 1993. She kept the IUD for
about seven years, but she experienced pelvic inflammation from wearing the device.
After having it removed, she became pregnant in 2001. Because the pregnancy was not
authorized, she went into hiding with relatives and did not appear for her mandatory
periodic pregnancy checkups. Officials came to the house several times looking for her.
Ultimately, they detained Liu for three days in August 2001, informing him that someone
from their village had discovered his wife’s hiding place (in a larger village about 100
kilometers away) and reported her to the authorities. During that arrest, Liu stated that
the officials struck blows, leaving Liu with residual intermittent shoulder and back pain.
Meanwhile, the officials found his wife, forced her to have an abortion, and imposed a
10,000 yuan fine on the couple. Later, intending to compel sterilization on one spouse,
the authorities came for Liu because his wife could not be sterilized due to her ill health
2 following the abortion. Liu stated that he went into hiding, obtained a visa, and departed
China for the United States. Liu stated that after he left, the authorities came to the house
and harassed his wife, looking for Liu and asking where he was. Thus, due to threats and
harassment from officials, Liu’s wife moved to a new apartment. Liu testified that if he
were to return to China, he would be fined, beaten, arrested, and jailed for being illegally
smuggled out of China and for revealing the “national secret” regarding forced abortions
and forced sterilizations.
In support of his claims, Liu presented documentation, including an abortion
certificate from a hospital and a notice of the fine issued by his hometown Villager’s
Committee. However, the government submitted an investigation report from the
Department of State-American Consulate General in Guangzhou, China, indicating that
those two documents were fabricated. Liu did not contest the findings of the report.
Instead, he testified that the findings in the report constituted evidence of the Chinese
government’s plan to cloak its human rights abuses toward him. To bolster this rebuttal,
Liu submitted a letter from his wife. In her letter, she stated that the officials’ threats to
her at home resulted from the inquiry into the authenticity of the documents, and that the
officials accused her and Liu of revealing national secrets to the United States. Liu
testified that the threats to his wife occurred in February 2002. He later testified that his
wife was contacted by officials in June 2002, prompting her relocation to an apartment.
Yet when confronted with the information that the document verification request was not
made until later, in October 2002, Liu stated that he had made a mistake, and the officials
3 came to threaten his wife at their home in June 2003.
The IJ denied relief and ordered Liu’s removal from the United States. The IJ
found that Liu lacked credibility, relying on a number of inconsistencies within Liu’s
testimony along with the use of fabricated supporting documentation. On July 24, 2007,
in a separate opinion, the BIA dismissed the appeal, finding that the IJ’s adverse
credibility determination was not clearly erroneous. While the BIA adjudged some of the
inconsistencies cited by the IJ to be minor, the BIA agreed that the fabricated
documentation to support the claim of forced abortion and imposition of a fine “fatally
contradict” Liu’s claimed history. The BIA also noted its agreement that there was
insufficient evidence to support a CAT claim. This petition for review followed.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C.
§ 1252(a). Our review is for substantial evidence, that is, “[w]e will defer to and uphold
the IJ’s adverse credibility determinations if they are ‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole,’ but such
findings must be based on inconsistencies and improbabilities that ‘go to the heart of the
asylum claim.’” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal citation omitted). We must affirm
“unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v.
Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (citations omitted).1
1 Liu applied for asylum before May 11, 2005, and therefore the REAL ID Act’s new standard for credibility determinations does not apply to him. Chukwu v. Attorney
4 Liu challenges the agency’s determination that he was not credible. In particular,
he assails the reliability of the State Department’s investigative report concluding that his
supporting documents were fabricated. He argues that the report was based upon the
opinions of Chinese government officials who had incentive to be less than forthright,
given that an accusation of human rights violations were at issue. Liu contends that the
BIA’s reliance on the investigative report, which was based on verification by the claimed
perpetrators of the human rights abuses, was fundamentally unfair and violated his due
process rights.
We are not persuaded by Liu’s arguments. First, his assertion that the Chinese
verifying authorities were not candid in their assessments is based on his own speculation.
Second, he relies on this Court’s decision in Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d
Cir. 2003), in support of his due process argument, but Ezeagwuna is distinguishable
from the case here. Ezeagwuna involved a State Department letter that repeated
statements made in an previous declarant’s summary of an investigation regarding
document authenticity; that earlier summary did not contain an investigative report or any
information about the investigation or the investigator. Unlike in Ezeagwuna, the State
Department investigative report in Liu’s case contains a statement prepared directly by
the investigator, setting forth how the inquiries were made and the substance of the
replies received from the Chinese authorities, and attaching copies of the replies
General of the United States, 484 F.3d 185, 189 (3d Cir. 2007).
5 themselves. We conclude that the IJ’s adverse credibility finding was based on specific
reasonable and substantial evidence supported by the record.2
Regarding his claim under the CAT, Liu contends that forced sterilization amounts
to torture, and that it is more likely than not that he will be subject to this type of
punishment for seeking asylum in the United States. However, as noted by the BIA, the
record contains evidence that family planning violations by Chinese citizens are typically
subject to civil and administrative penalties, such as fines, loss of employment or
demotion. Further, the record contains evidence that returnees from the United States
face detention until relatives can make travel arrangements to their homes, as well as
fines, but there were no confirmed cases of abuse. We conclude that the BIA’s
conclusion that Liu failed to meet his burden of showing that it is more likely than not
that he would be tortured if removed to China, see 8 C.F.R. § 1208.16(c)(2), is supported
by substantial evidence.
We will deny the petition for review.
2 Liu disputes the adverse credibility finding regarding his claim of detention and beating in August 2001. Liu testified that he did not seek medical treatment for his injuries because he could not afford it, and the BIA found that testimony lacking in credibility in light of the ample gynecological treatment records for his wife. Liu argues that this finding is based on impermissible speculation regarding the types of medical services readily available to Liu in China. Even if we were to credit Liu’s argument, this point does not nullify the substantial evidence supporting the adverse credibility finding.