Li Hua Yuan v. Attorney General of US

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-1082

_____________

LI HUA YUAN, A/K/A SHU CHEN HSU

ZHOUGUI NI,

Petitioners,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_______________

On Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA 1:A077-997-645 and BIA 1:A088-777-224)

Immigration Judge: Honorable Frederic Leeds

_______________

Submitted Under Third Circuit LAR 34.1(a)

April 14, 2011

Before: FISHER, JORDAN and COWEN, Circuit Judges.

(Filed: April 22, 2011 )

_______________

Gary J. Yerman, Esq.

Yerman & Associates

401 Broadway - #1210

New York, NY 10013

Counsel for Petitioners

Dalin R. Holyoak, Esq.

Kevin J. Conway, Esq.

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, DC 10044

Counsel for Respondent

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Li Hua Yuan petitions for review of an order of the

Board of Immigration Appeals (“BIA”) denying her

application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).

Her husband, Zhuo Gui Ni, joins her petition on a derivative

basis. For the following reasons, we will deny the petition.

2

I. Background

Yuan, a native and citizen of China, arrived in the

United States in February 2002 and attempted to gain entry

using a non-immigrant visa issued to her under a false name.

Shortly thereafter, in a secondary inspection, Yuan told an

immigration officer that she was single, from Nantang Wan

Li Village, Lian Jiang District, Fuzhou City, Fujian Province,

China, and that she had fled China because her impoverished

parents were forcing her to marry a man in exchange for

money. The next month, in March 2002, the Department of

Homeland Security (“DHS”) issued Yuan a Notice to Appear

(“NTA”), charging her with being inadmissible for lack of

proper documentation in violation of the Immigration and

Nationality Act (“INA”) § 212(a)(7)(A)(i)(I), 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), and for fraudulently or willfully

misrepresenting a material fact – namely her identity – to gain

entry to the United States in violation of INA

§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i).

In July 2002, Yuan filed an application for asylum and

withholding of removal. 1 She identified two bases for

asylum: the impending forced marriage in China and the

punishment she would receive from the Chinese government

for being a practitioner of Falun Gong. In October 2003, after

hearing Yuan’s testimony, an Immigration Judge (“IJ”)

sustained DHS’s charge of inadmissibility for lack of proper

documentation and denied Yuan’s application, finding that

1

Yuan’s application does not clearly indicate that she

was seeking relief under the CAT. She was nevertheless

treated as having sought CAT relief.

3

she was not credible and, in any case, had not shown that she

satisfied the requirements for asylum, withholding of

removal, or protection under the CAT. 2 In April 2005, the

BIA denied Yuan’s appeal without opinion.

Yuan timely moved to reopen her removal proceedings

in July 2005 and attached a new asylum application. In her

new application, Yuan claimed that she and Ni had given

birth to a daughter in December 2004, that they were planning

to have additional children, and that she “fear[ed] that if she

is sent back to China, she [would] lose the chance to have as

many children as she likes” due to Fujian Province’s birth

control policy, which, in Yuan’s case, would permit no more

than two children. 3 (See App. 2 at 1066.) In September

2005, the BIA denied the motion to reopen, concluding that,

since Yuan’s one child did not put her in contravention of the

policy and Yuan had presented no evidence that China

sterilizes its citizens for having foreign-born children, Yuan

had failed to show a well-founded fear of persecution in

China.

Yuan again moved to reopen in May 2007. She also

attached to her motion an amended version of her July 2005

asylum application, which included documentation indicating

that she had given birth to a second daughter and documents

regarding enforcement of China’s birth control policy. In

September 2007, the BIA granted the motion to reopen. The

2

The IJ did not address the fraud charge under INA

§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i).

3

The policy allegedly permitted a second child, if the

first child was female.

4

BIA explained that, since Yuan was seeking to reapply for

asylum and withholding of removal based on changed

circumstances in China, the motion fell within the timeliness

and numerical limits exception under 8 C.F.R.

§ 1003.2(c)(3)(ii). 4 The BIA further explained that, since the

authenticity of Yuan’s family planning policy documents had

not been resolved, it was appropriate to remand Yuan’s case

to an IJ to “hold additional hearings to address the

authenticity of the evidence presented with the motion, …

[Yuan]’s credibility, and her eligibility for asylum,

withholding of removal, and protection under the CAT.” 5

(App. 2 at 911.)

4

As we have previously explained, the birth of

children in the United States is a change in personal

circumstances, not a change in conditions in China. Liu v.

Att’y Gen. of the U.S., 555 F.3d 145, 148 (3d Cir. 2009).

Thus, the BIA’s analysis should have focused on whether

Yuan had presented evidence that was previously unavailable

or undiscoverable since her last hearing. See id.

(commending the BIA for focusing on availability of

evidence). However, that issue, which would have arisen

from the motion to reopen, is not before us now.

5

At about this time in the chronology of events, May

2008, DHS issued an NTA to Ni, charging him with removal

under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i),

because he was allegedly a native and citizen of China who

had entered the United States without having been admitted

or paroled by an immigration officer. Ni filed his own

asylum application, claiming that he had married Yuan in

January 2008, that they together had two daughters, and that

either he or Yuan would be forcibly sterilized by the Chinese

5

In advance of Yuan’s post-remand hearing, Yuan and

DHS submitted several documents to the IJ, including

information on China’s birth control policies and, from Yuan,

various affidavits, letters, statements, and certificates in

support of her claims. The IJ delayed the proceedings several

times so that Yuan or DHS could satisfy authentication

concerns about Yuan’s documents, but neither party was able

to do so. DHS objected to much of Yuan’s documentary

evidence, noting that several items were copies instead of

originals and lacked appropriate corroboration and

authentication. The IJ ultimately admitted Yuan’s documents

but noted that the “legitimate issues” raised with respect to

their authenticity could affect their evidentiary weight. (Id. at

184-86.)

After dealing with those preliminary questions, the IJ

conducted a hearing in May 2009, at which Yuan testified.

Yuan said that she was born in China’s Fujian Province, met

government if they returned. At a hearing held approximately

two weeks later, Ni admitted the allegations in the NTA and

conceded that he was removable as charged. Shortly

thereafter, the IJ granted Ni and Yuan’s motion to consolidate

their cases. Ni later withdrew his claims for withholding of

removal and CAT protection – his asylum application was not

filed within one year of entering the United States and so was

untimely under INA § 208 (a)(2)(B), 8 U.S.C.

§ 1158(a)(2)(B) – and proceeded on a derivative basis on

Yuan’s application. Accordingly, we address only Yuan’s

claims, even though the determination with respect to Yuan

applies with equal force to Ni.

6

and married Ni after she came to the United States in

February 2002, and gave birth here to two daughters. She

testified that, if returned to China, she would be sterilized or

fined under her home village’s birth control policy because

she had two children and was still a citizen of China. She

claimed that she learned of her home village’s birth control

policy from a letter sent by her father, who, at her request,

had approached the village committee to inquire regarding the

policy. Yuan also submitted documents purportedly

recounting the experiences of persons who had been subject

to enforcement of birth control in China: one was a letter

from someone allegedly named Yang Yun Duan, a neighbor

in Yuan’s village, in which Duan claimed to have been

subject to forced contraception after the birth of her first child

and forced sterilization after the birth of her second child; the

others included statements from Jin Fu Chen, whose wife had

given birth to two children in Japan and who was allegedly

sterilized upon return to China, and Yanyun Wu, who was

allegedly fined and sterilized for fathering a second child in

China after having already fathered a son.

Yuan further testified that she would be fined 30,000

to 50,000 Renminbi (“RMB”), which, under the then-

prevailing exchange rate of 6 RMB to 1 dollar, equated to a

fine ranging from $5,000 to $8,333. She claimed that she

would be unable to pay such a fine if returned to China, since

she would stay at home with the children and Ni would

probably earn an estimated 400 to 500 RMB per month as a

construction worker. Yuan said that, though she was not then

working in the United States, she had earned $10,000 per year

working part-time in a restaurant and that Ni also worked in a

restaurant, giving them a combined annual income of

$25,000. She also said that she had been able to repay the

7

$40,000 she owed to the smugglers who brought her to the

United States only because her wages were higher in the

United States than in China.

Yuan’s claim for relief was undercut, however, by

several evidentiary deficiencies and contradictions. For

instance, she failed to produce her father’s letter explaining

the village family planning policy, including the fine

schedule. The letter from her neighbor Duan gave as the

neighbor’s name “Yunrui Yang” rather than “Yang Yun

Duan,” as Yuan had claimed, and it was not authenticated.

Neither was there authentication for the documentation

concerning others who submitted statements on Yuan’s

behalf. When asked why she made no mention of a fine in

her asylum application after having testified at the hearing

about it being of paramount importance, Yuan testified that

she forgot about it. Yuan could not explain the discrepancy

between her testimony of a 30,000 to 50,000 RMB fine and

the Duan letter, which mentioned only a 15,000 RMB fine.

Yuan produced no tax returns to corroborate her testimony

regarding her and Ni’s household earnings. She testified that

both of her children had traveled with their aunt to China,

where they then lived for a number of years with Ni’s mother

and sister and were temporarily registered as part of Ni’s

mother’s household without any family member being fined

or otherwise disadvantaged. She also testified that she and Ni

would reside in the town of Guantao and be registered as part

of Ni’s household if they returned to China, but she failed to

produce any evidence of a Guantao birth control policy. And

though Yuan testified that she planned to have more children

and had been trying to conceive for the past two years, she

had not consulted with a physician to confirm whether she is

able to have more children.

8

Following Yuan’s testimony, the IJ issued an oral

decision finding Yuan removable and denying her asylum,

withholding of removal, or relief under the CAT. The IJ

analyzed Yuan’s asylum claim under pre-REAL ID Act

standards because Yuan had filed her original claim prior to

the REAL ID Act’s enactment in 2005, though the IJ noted

that his conclusion about the case would be the same under

post-REAL ID Act standards. 6 The IJ credited the State

Department Report and Profile on China, which indicated that

China did not have a policy of forcible sterilization or fines

for Chinese nationals who simply return to China after having

given birth abroad to two or more children. 7 The IJ gave less

6

The REAL ID Act, Pub. L. No. 109-13, 119 Stat.

231, 302 (2005), which became effective on May 11, 2005,

provides that an asylum applicant’s uncorroborated testimony

may alone satisfy his burden of proof “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). In evaluating the testimony, the trier of

fact may weigh it along with other record evidence and may

request that the applicant provide corroborating evidence,

which the applicant must do unless he “does not have the

evidence and cannot reasonably obtain [it].” Id. The REAL

ID Act further provides that the trier of fact may determine an

applicant’s credibility based on a variety of factors. Id.

§ 1158(b)(1)(B)(iii).

7

As the IJ noted, the State Department Report and

Profile did indicate some problems for parents attempting to

obtain free public services for children born abroad, but it

9

weight to Yuan’s evidence and observed that the village

committee documentation and other letters regarding forced

sterilization and fines were neither authenticated nor directly

applicable to someone whose children were born in the

United States and that Yuan knew of no similarly situated

person who had been subject to sterilization or fines. As for

the purported potential fine, the IJ found that Yuan’s claimed

fear was not credible, noting, inter alia, the discrepancy

between Yuan’s testimony and Duan’s letter about the

amount of a fine, Yuan’s failing to corroborate the amount of

the fine or her inability to pay, the children having lived in

China with Ni’s mother without fines or difficulty, and

Yuan’s failing to even mention the fine in her application for

relief. The IJ ultimately concluded that Yuan had not met her

burden of proof with respect to her asylum, withholding of

removal, and CAT protection claims.

Yuan then looked to the BIA, but the BIA dismissed

her appeal. It disagreed with the IJ regarding the applicability

of the REAL ID Act, concluding that the asylum application

attached to Yuan’s 2007 motion to reopen asserted a new

basis for relief and was thus a new application subject to the

REAL ID Act. However, “upon … de novo review,” (App. 2

at 3), the BIA agreed with the IJ that Yuan had failed to prove

that she was entitled to relief. The BIA identified several

deficiencies in Yuan’s evidence, including that much of it

was either stale, unrelated to birth control policies in Fujian

province, or contradicted by background materials and thus

also indicated that parents could avoid those problems by

paying for services and not registering their children with the

government.

10

did not reflect current conditions in Guantao. It noted that

Yuan had established only that fines are sometimes imposed

in Guantao, not that she would be fined 30,000 to 50,000

RMB or that she would be unable to pay such a fine, and it

indicated that her evidence of forced sterilization – i.e., the

materials from Duan, Chen, Wu, and Yuan’s home village –

was not “credible, individualized evidence establishing that

she has reason to fear persecution upon return,” because it

was either inapposite or unauthenticated. Having failed in her

efforts before the BIA, Yuan now petitions us for review.

II. Discussion 8

We “review the administrative record on which the

final removal order is based.” Zhang v. Gonzales, 405 F.3d

150, 155 (3d Cir. 2005). Ordinarily, that means reviewing

only the BIA’s decision. Id. However, where the BIA’s

decision affirms and specifically references the IJ’s decision,

we review the referenced portions of the IJ’s decision also.

Sandie v. Att’y Gen. of the U.S., 562 F.3d 246, 250 (3d Cir.

2009); Lin v. Att’y Gen. of the U.S., 543 F.3d 114, 119 (3d

Cir. 2008). Since the BIA’s decision here references the IJ’s

determinations with respect to Yuan’s failures to establish

eligibility for CAT protection and to corroborate her

testimony regarding fine amounts, we review those portions

of the IJ’s decision along with the BIA’s decision. Our

review of factual findings, including findings of persecution

and fear of persecution, is for substantial evidence, which

8

The BIA had jurisdiction pursuant to 8 C.F.R.

§§ 1003.1(b)(3) and 1240.15. We have jurisdiction pursuant

to 8 U.S.C. § 1252.

11

means we must uphold findings of fact unless the record

evidence compels a contrary finding. Sandie, 562 F.3d at

251. We review legal conclusions de novo. Id.

In her petition, Yuan argues that the BIA erred in

assessing the sufficiency of her evidence and in engaging in

de novo review of the IJ’s factual findings. We address those

issues in turn. 9

9

Yuan also takes issue with the BIA’s conclusion that

her current asylum application is a new application filed after

May 2005 and so is subject to the REAL ID Act. Whether

the REAL ID Act applies can be significant because it

imposes certain conditions upon asylum applicants regarding

credibility and corroborating evidence. See supra note 6

(outlining 8 U.S.C. § 1158(b)(1)(B)(ii)-(iii)). Yuan argues

that the REAL ID Act should not apply because the current

application is merely a continuation of her initial application

filed in July 2002 and so predates the REAL ID Act. We

disagree and instead, for the reasons the BIA set forth,

conclude that Yuan’s application raises a new basis for

asylum following a motion to reopen and so is a new

application rather than a continuation of the initial one, which

had raised different bases for asylum and had been dismissed.

In any event, Yuan’s concern is of no moment. First,

the BIA expressly declined to address Yuan’s credibility.

Thus, even if Yuan could have been subject to the REAL ID

Act’s credibility provision, as a practical matter, she was not.

Second, to the extent that Yuan was subject to the REAL ID

Act’s corroboration provision, it was effectively

indistinguishable from what she would have been subject to

under pre-REAL ID Act law, since under both regimes the

12

A. The Sufficiency of Yuan’s Evidence

“To qualify for asylum or withholding of removal, an

applicant must establish that he has a well-founded fear that

he will be persecuted if removed to his home country on

account of [, among other things,] … political opinion.”

Zheng v. Att’y Gen. of the U.S., 549 F.3d 260, 266 (3d Cir.

2008). “[A] person who has a well founded fear that he or

she will be forced to [abort a pregnancy or undergo

involuntary sterilization] or [is] subject to persecution for

[failure, refusal, or resistance to undergo such a procedure]

shall be deemed to have a well founded fear of persecution on

account of political opinion.” Id. (quoting 8 U.S.C.

§ 1101(a)(42)) (internal quotation marks omitted). To receive

asylum on account of a fear of forced sterilization, the

applicant must show “a reasonable likelihood” that he or she

will be forcibly sterilized upon repatriation. Id. To receive

withholding of removal on that same basis, the applicant must

make the similar but heightened showing that there is a “clear

probability” of being forcibly sterilized upon return. Id.

(internal quotation marks omitted).

trier of fact could require Yuan to produce reasonable

corroborating evidence and penalize her for failing to produce

such corroboration or failing to adequately explain the

failures. See Abdulai v. Ashcroft, 239 F.3d 542, 552-54 (3d

Cir. 2001) (holding that the BIA’s interpretation of the INA to

permit the trier of fact to “sometimes require otherwise-

credible applicants to supply corroborating evidence in order

to meet their burden of proof” was reasonable).

13

Here, the BIA concluded that Yuan had not met her

burden of showing that she was reasonably likely to be

forcibly sterilized upon return to China. The BIA cited

several evidentiary bases for its conclusion, including that the

evidence proffered on birth control policies was stale or was

irrelevant. Without recounting again all of the BIA’s reasons,

we note that it decided that she had failed to show she would

be unable to pay any potential fine, and that her evidence of

forcible sterilization was either inapposite or unauthenticated.

Substantial evidence supports the BIA’s conclusion and thus

its decision that Yuan is not entitled to asylum.

We also uphold the BIA’s denial of withholding of

removal and CAT protection. An applicant that fails to meet

the eligibility requirements for asylum cannot “meet the more

stringent applicable standard for withholding of removal,”

Mudric v. Att’y Gen. of the U.S., 469 F.3d 94, 102 n.8 (3d Cir.

2006), as was the case here. Likewise, the evidence that is

here insufficient to show eligibility for asylum and

withholding of removal is also insufficient to show eligibility

for CAT protection, since it does not show that Yuan is more

likely than not to be tortured upon return to China. See 8

C.F.R. § 1208.16(c)(2) (an alien must show that it is more

likely than not that he would be tortured, with the consent or

acquiescence of the government, if repatriated).

14

B. The BIA’s De Novo Review and Harmless

Error

The BIA affirmed the IJ’s decision “upon … de novo

review.” (App. at 3.) Yuan argues that that was error, since,

pursuant to 8 C.F.R. § 1003.1(d)(3)(i), the BIA is “not to

engage in de novo review” of the IJ’s factual findings. 10 The

government effectively concedes the error but counters that

such error was harmless, since the denial of relief was still

supported by substantial evidence. 11

10

“Facts determined by the immigration judge,

including findings as to the credibility of testimony, shall be

reviewed only to determine whether the findings … are

clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i).

11

In stating that it affirmed the IJ’s decision “upon …

de novo review,” (App. 2 at 3), the BIA did not clearly

indicate that it specifically reviewed de novo the IJ’s factual

findings. That is potentially significant, since the BIA is

permitted to review de novo “questions of law, discretion, and

judgment and all other issues in appeals from decisions of

immigration judges,” 8 C.F.R. § 1003.1(d)(3)(ii), and the BIA

could be understood as referring to those aspects of its

review, which would not make its review erroneous.

However, it appears likely that the BIA did review de novo

the IJ’s factual findings, given that it found additional,

alternative bases upon which to discount Yuan’s evidence.

Alternative findings are incongruent with clear error review,

in which we would expect the BIA to limit its discussion to

whether the IJ clearly erred in its factual findings.

Accordingly, we take it as a given, as do the parties, that the

15

We have not applied the harmless error analysis in

reviewing an immigration decision. Generally, “an

administrative order cannot be upheld unless the grounds

upon which the agency acted in exercising its powers were

those upon which its action can be sustained.” SEC v.

Chenery Corp., 318 U.S. 80, 95 (1943). However, the

Supreme Court has explained that “Chenery does not require

that [the Court] convert judicial review of agency action into

a ping-pong game” and that remand to the agency is not

required when it “would be an idle and useless formality.”

NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969);

see also Mass. Trustees of E. Gas & Fuel Assocs. v. United

States, 377 U.S. 235, 246-48 (1964) (holding remand

unnecessary when the agency’s purported error “had no

bearing on … the substance of the decision”).

Consistent with those principles, many of our sister

circuits have applied a harmless error analysis in the

immigration context. See, e.g., Nadal-Ginard v. Holder, 558

F.3d 61, 69 n.7 (1st Cir. 2009) (noting that it need not reach

the BIA’s alternative rationale for its decision, since, even if

erroneous, it did not result in prejudice and so was effectively

harmless error); Kadia v. Gonzales, 501 F.3d 817, 821 (7th

Cir. 2007) (acknowledging that “the doctrine of harmless

error is applicable to judicial review of immigration

decisions”); Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

391, 401 (2d Cir. 2005) (citing Wyman-Gordon and

Massachusetts Trustees and holding that remand to the BIA

was not required “where there [was] no realistic possibility

BIA reviewed de novo the IJ’s factual findings.

16

that, absent the errors, the IJ or BIA would have reached a

different conclusion”); Ngarurih v. Ashcroft, 371 F.3d 182,

191 n.8 (4th Cir. 2004) (“Harmless-error analysis applies in

immigration cases.”); Nazaraghaie v. INS, 102 F.3d 460, 465

(10th Cir. 1996) (characterizing the BIA’s alleged failure to

consider certain record evidence as harmless error since “the

result in [the] case would be no different” if the case were

remanded).

We too are persuaded that harmless error analysis

should apply in immigration cases. Accordingly, we will

view an error as harmless and not necessitating a remand to

the BIA when it is highly probable that the error did not affect

the outcome of the case. Cf. Forrest v. Beloit Corp., 424 F.3d

344, 349 (3d Cir. 2005) (stating in the civil context that “[a]n

error will be deemed harmless only if it is ‘highly probable’

that the error did not affect the outcome of the case”); Cao He

Lin, 428 F.3d at 402 (stating that remand is not required

“where the IJ or BIA’s reliance on an erroneous aspect of its

reasoning is so tangential that there is no realistic possibility

that the outcome would be different on remand” or “where –

notwithstanding admitted errors – overwhelming evidence

supporting the administrative adjudicator’s findings makes it

clear that the same decision would have been reached in the

absence of the errors”).

Applying that test here, we have no hesitation in

saying that the BIA’s erroneous de novo review of the IJ’s

factual findings was harmless. As an initial matter, because

the IJ had made factual findings adverse to Yuan, de novo

review, which paid no deference to those adverse findings,

was, if anything, favorable for Yuan. Indeed, the BIA’s

decision to deny Yuan relief is a product of the most

17

favorable standard of review Yuan could have received under

the circumstances. Moreover, nothing in the BIA’s decision

manifests a disagreement with the IJ’s factual findings. On

the contrary, the BIA echoed and adopted several of them.

Accordingly, it is highly probable that the outcome of Yuan’s

case would not have been different had the BIA applied the

proper standard of review and paid deference to the IJ’s

adverse findings. The BIA’s error in conducting a de novo

review thus does not necessitate remand.

III. Conclusion

For the foregoing reasons, we will deny the petition for

review.

18