Qin Ru Fan v. Ashcroft

9 F. App'x 689

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2001
• Docket: No. 00-70613; I & NS No. A76-280-412
• Status: Published

Opinion

MEMORANDUM

**

We find sufficient evidence in the record to support the Board of Immigration Appeal’s (“BIA’s”) decision and therefore affirm its denial of Qin Ru Fan’s application for asylum. As the parties are familiar with the factual and procedural history of this case, we do not recount them here except as necessary to explain our decision.

1. “To deny asylum on credibility grounds, the BIA must have a ‘legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.’ ” Abovian v. INS, 219 F.3d 972, 978 (9th Cir.2000) (quoting Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994)). “Any reasons put forth in support of an adverse credibility finding must be substantial and bear a legitimate nexus to the [credibility] finding.” Id. at 978 (citations and internal quotation marks omitted).

2. The BIA articulated reasons for its adverse credibility finding that were sufficient to satisfy this standard. The basis for Mr. Fan’s persecution claim was his testimony that his wife was forced to undergo an abortion in 1996. The BIA did not question that an abortion took place at that time, but articulated a cogent reason for rejecting Mr. Fan’s testimony that the abortion was involuntary. Specifically, the BIA noted that the abortion took place when Mr. Fan’s wife was just two months pregnant, long before her pregnancy would have been evident to a casual observer, and that Mr. Fan offered no credible explanation of how family planning officials could have learned that she was pregnant. The BIA found implausible Mr. Fan’s testimony that family planning officials became suspicious that his wife might be pregnant, and took her away for testing, simply because they saw her standing outside holding their 16 month old child. The implausibility of Mr. Fan’s story was a substantial and legitimate reason for the BIA’s rejection of his claim that he had been persecuted.¹ We are unable to conclude that “a reasonable factfinder would have to” accept Mr. Fan’s story despite its implausibility. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

Mr. Fan’s testimony at his hearing before the IJ was essential to establishing his eligibility for asylum. Because the BIA justifiably found him not credible, we must conclude that Mr. Fan has not demonstrated his eligibility for asylum. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). Consequently, his petition is DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1 . The government conceded at oral argument that the existence of an “abortion certificate,” which the State Department Country Profile indicates is typically issued in cases of voluntaiy abortion, is not itself probative of whether any particular abortion was or was not voluntary.