Xiu Yun Jiang v. U.S. Attorney General

394 F. App'x 617
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 26, 2010
Docket09-15816
StatusUnpublished

This text of 394 F. App'x 617 (Xiu Yun Jiang v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Xiu Yun Jiang v. U.S. Attorney General, 394 F. App'x 617 (11th Cir. 2010).

Opinion

PER CURIAM:

Xiu Yun Jiang, a Chinese citizen from the Fujian Province, petitions this Court for review of the Board of Immigration Appeals’ (“BIA”) denial of her application for asylum, withholding of removal, and relief under the United Nations Conven *618 tion Against Torture (“CAT”). 1 That decision upheld an Immigration Judge’s (“U”) finding that Jiang failed to present a credible claim of persecution based on China’s family planning policies. Jiang also seeks review of the BIA’s denial of her motion to remand her case to the IJ to consider her application in light of new evidence. After thorough review, we deny her petition and affirm the BIA’s denial of her motion to remand.

I.

According to Jiang, from May 2003 until August 2005, she had been “hiding” in Fuzhou, China because of dealings she describes having with Chinese family planning officials, including two forced abortions and an escape from a hospital to avoid forced sterilization. On August 29, 2005, Jiang, purportedly with the help of a paid smuggler, attempted entry into the United States at Hartsfield Jackson International Airport in Atlanta but was stopped by the Department of Homeland Security. A week later, she was deemed to be subject to removal under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for failing to have proper documentation upon entry.

To avoid removal, Jiang sought permanent refuge in the United States by filing a Form 1-589, Application for Asylum and for Withholding of Removal. In her application, she claimed that the persecution against her began in 1992 following her marriage to Hui Lin. She testified that although the couple was married according to rural countryside traditions, they could not obtain a formal marriage certificate because Lin was too young. When family planning officials discovered this, they took Jiang from her home, discovered she was pregnant, and forced her to have an abortion. Irate at the government’s actions, Lin got into a bloody altercation with the officials and thereafter fled to the United States to avoid retaliation. After an unsuccessful attempt to obtain asylum, 2 Lin was deported back to China in early 1994 where he was allegedly detained, fined, and tortured for illegal departure.

In 1994, Jiang and Lin had a civil marriage ceremony and received a formal marriage certifícate. According to her testimony, they had their first child in 1996 and remained eligible to have a second despite China’s one-child policy because they lived in the countryside and their first born was a girl. In 2001, Jiang became pregnant again but suffered a miscarriage. The government, however, believed either that she had given birth and was hiding the baby or that she underwent an abortion because the child would be a girl. When the government could not uncover any evidence to support its beliefs, it inserted an intrauterine device (“IUD”) in Jiang rather than force sterilization. Both Jiang’s sister and brother-in-law had been forcibly sterilized and both were able to obtain asylum in the United States.

Jiang claims that when she went for her quarterly checkup with the family planning officials in May 2003, 3 they discovered that the IUD was missing and that she was three-months pregnant. Officials then forced Jiang to undergo a second abortion *619 and scheduled her for immediate sterilization. Given her weakened condition following the abortion, Jiang persuaded the officials to postpone the sterilization for two days. This gave her time to escape from the hospital before the procedure could be performed. Following her escape, Jiang was afraid to live with her husband and consequently spent time living with her cousins. Later that year or in early 2004, her husband returned to the United States illegally, and in August 2005, Jiang came to the United States to join him. While Jiang’s application for asylum was pending before the IJ, the couple gave birth to their second child. After the IJ’s denial of her application but before the BIA’s decision, the couple gave birth to their third child and Jiang converted to Christianity.

II.

Jiang has applied for asylum, withholding of removal, and CAT relief. An applicant who cannot meet the evidentiary burden to establish she is entitled to asylum generally cannot meet the heavier evidentiary burdens associated with withholding of removal or CAT relief. 4 See Najjar v. Ashcroft, 257 F.3d 1262, 1292-93, 1303 (11th Cir.2001). We thus address Jiang’s claim for asylum first.

Under 8 U.S.C. § 1158(b)(1)(A), the Secretary of Homeland Security or the Attorney General has the discretion to grant asylum to a “refugee,” defined as an individual who is unwilling or unable to. return to her country of residence “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). Persecution on account of “political opinion” includes being subjected to forced abortions, involuntary sterilization, and other coercive population control measures. Id.

The BIA denied Jiang’s application for asylum. Our review of that decision is limited to the BIA’s decision itself and those portions of the IJ’s decision expressly adopted by the BIA. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344 (11th Cir.2008). In its opinion, the BIA agreed with the IJ’s adverse credibility determination, which was the sole basis for upholding the denial of Jiang’s application. We therefore review only the credibility determination of the IJ and do not consider Jiang’s challenges to the IJ’s findings regarding corroborating evidence and past and present conditions in Fujian Province, none of which were explicitly adopted by the BIA.

The denial of asylum relief may be based solely on an adverse credibility determination. Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304-05 (11th Cir.2009). An adverse credibility determination is a finding of fact that we review under the substantial evidence test. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir.2004). Under that test, the “burden is on the applicant ... to show that the IJ’s credibility decision was not supported by ‘specific, cogent reasons’ or was not based on substantial evidence.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.2005). The test is “highly deferential” and requires us to “view the record in the light most favorable to the *620

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394 F. App'x 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xiu-yun-jiang-v-us-attorney-general-ca11-2010.