Yan Qin Xiao v. Michael Mukasey

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1120

Y AN Q IN X IAO, also known as H UI C HING C HUANG,

and SUN C HENG JIANG,

Petitioners,

v.

M ICHAEL B. M UKASEY, Attorney General

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

Nos. A97-385-000, A79-087-464

A RGUED S EPTEMBER 25, 2008—D ECIDED O CTOBER 27, 2008

Before P OSNER, F LAUM, and E VANS, Circuit Judges.

F LAUM, Circuit Judge. Petitioner Yan Qin Xiao and her

husband Sun Cheng Jiang seek review of a final order of

removal issued by the Board of Immigration Appeals

(“BIA”). The BIA upheld the Immigration Judge’s (IJ)

finding that petitioners’ testimony was not credible

and denied their asylum claim. For the reasons explained

below, we affirm.

2 No. 08-1120

I. Background

Xiao and Jiang are Chinese nationals. They were boy-

friend and girlfriend in China. They were never married

there.

Jiang entered the United States before Xiao. He applied

for asylum in September 2002, after the one year filing

deadline—which requires an applicant to file within one

year of his last entry in the United States—expired. In

his application, Jiang claimed that in 1998, government

family planning officials forced his then-girlfriend Xiao

to undergo an abortion, and he was fined for arguing

with family planning officials about the forced abortion.

Xiao arrived in the United States at Miami International

Airport on June 5, 2003. She stated to the immigration

officer at the airport that she was fleeing China because

the Chinese government sought to arrest her for the

practice of Falun Gong. On June 9, 2003, in a credible

fear interview with an asylum officer, Xiao again main-

tained that she fled China because she feared arrest

because of her Falun Gong practice. Xiao did not

mention a forced abortion on either occasion. Xiao was

placed in removal proceedings. She conceded charges of

removability and filed an application for asylum, with-

holding of removal, and protection under Article III of the

United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”). She later requested removal of her case to

Immigration Court in Chicago, and this request was

granted.

No. 08-1120 3

In 2005, Jiang and Xiao were married in Missouri.

Xiao gave birth to their son during that year. Because he

had not met the one-year deadline, Jiang abandoned

his independent asylum claim and sought derivative

asylum through Xiao’s application.

Xiao had her individual merits hearing, which included

Jiang’s derivative claim, in Immigration Court on

May 24, 2006. Xiao testified that she had met Jiang in

April 1997 when they worked together at a furniture

company, Hua Mei, in Guang Tou town in the Fujian

Province of China. Xiao stated she stopped working at

the furniture store in 1997.

Xiao stated that she became pregnant in January 1998

and that Jiang was the father. In March 1998, because

Xiao was pregnant and unmarried in violation of China’s

family planning policies, she began hiding at the house

of a friend, Zho Song Li, who lived in a different village.

Xiao stated that she was unable to marry Jiang because

they could not obtain a marriage license as Jiang was not

registered locally in Guang Tou town, where he worked,

or in the nearby village of Nan Tian, where he lived with

his parents. He was not registered locally because his

household registration remained in Shanghai where he

attended college, and there was a delay in transferring it.

Xiao testified that while hiding at her friend Li’s home,

on June 28, 1998, five officials from the family planning

office “charged into the house” and dragged her to the

Guang Tou town health clinic where she underwent a

forced abortion. She states that she was released from

the hospital the next day. Xiao stated that she then went

4 No. 08-1120

to her parents’ home in the Yang Qi village. Although

she was not given an abortion certificate at the time of

the abortion, Xiao stated that her parents obtained an

abortion certification on July 8, 1998.

According to Xiao’s testimony, her friend called her

boyfriend Jiang after Xiao had gone to the Guang Tou town

health clinic. Xiao indicated that Jiang was very upset

and went to the family planning office in his own village

and argued with family planning officials. After the

argument, Xiao testified that Jiang received a fine notice

of 10,000 RMB from the family planning office. Xiao stated

that after the argument, the public security bureau was

looking for Jiang, so he fled China.

Xiao testified that after the abortion, feeling sad and

helpless, she turned to Falun Gong. She stated that she

was introduced to Falun Gong by a friend, Qui Hong

Gang. Xiao identified herself as a “beginner” practitioner

and described Falun Gong as “a way to cultivate one’s

body and its part of Buddhism.” Xiao stated that initially

she practiced Falun Gong in her own home, but that she

soon learned that her friend Qui had been arrested for

Falun Gong practice. She testified he was arrested in

September of 2001. She stated that public security officials

later came to her house in an attempt to arrest her, but

she was able to escape because her friend’s mother

called and told her she should hide. Xiao testified that

she feared arrest, so she moved in with her aunt, who

lived an hour and a half away. She testified that she

avoided arrest for almost two years until her departure

to the United States.

No. 08-1120 5

In 2003, Xiao testified, her mother and friends arranged

for her transport to the United States by payment of a

sum to a smuggler. Xiao admitted that her sister, Yan

Duan Xiao, had obtained asylum in the United States

in 2004 on a forced abortion claim, but that she did not

know her sister had applied for asylum before her

own arrival in the United States in June 2003.

Xiao admitted that she did not mention the forced

abortion in the sworn statement she gave when she

arrived at the Miami airport or at her credible fear inter-

view a few days later. She claimed that she did not cite

the forced abortion because she “felt shamed for her

premarital pregnancy and felt humiliated by the

abortion procedure.”

Jiang also testified at the merits hearing. Jiang testified

that he met Xiao in April 1997. He stated he was living

with his parents in Nan Tian at that time. He had been a

student in Shanghai and had graduated in 1994. He

testified that he had not yet been able to transfer his

registration back to Nan Tian or Guang Tou town, where

he worked.

As to the forced abortion, Jiang stated that Xiao had been

hiding at the house of a friend, and that the friend had

called him when Xiao was taken away. Jiang stated that he

was upset and went to argue with local family planning

officials in Nan Tian (although his written application

stated that he argued with family planning officials in

Guang Tou town). He stated that on the same day local

family planning officials delivered a 10,000 RMB fine for

violation of China’s birth control policy. The fine was

6 No. 08-1120

delivered by the village leader. Jiang said he showed

the fine to his parents, who advised that he go into

hiding the next morning.

The IJ issued his oral decision immediately following

the merits hearing. The IJ found that petitioners were

removable by clear and convincing evidence, and he

denied their applications for relief and protection. The IJ

found Xiao’s and Jiang’s testimony not credible and “not

supported by specific detailed information that

overcomes their lack of credibility.” The IJ stated that

he did not believe “that the respondents have estab-

lished that the female respondent was forced to undergo

an involuntary abortion in 1998 or that she fled China in

2003 because of her practice of Falun Gong.” The IJ cited

several specific reasons for the adverse credibility finding.

Xiao and Jiang appealed to the BIA. They claimed their

testimony was credible, and that they qualified for asy-

lum. On August 30, 2007, the BIA affirmed the IJ’s denial

of the application in a two page, single-spaced decision

issued per curiam. First, the BIA determined that Xiao and

Jiang had not contested the denial of withholding of

removal and protection under CAT, meaning those claims

were abandoned.

The BIA affirmed the denial of the asylum claim be-

cause the IJ’s finding that Xiao and Jiang were not

credible was not clearly erroneous. The BIA based its

decision on three of the IJ’s specific reasons for finding

the petitioners incredible. First, the BIA affirmed because

it concurred with the IJ’s determination that Xiao’s testi-

mony was not credible because she had not disclosed to

No. 08-1120 7

the immigration officer or the asylum officer in Miami

that a forced abortion was one reason for her flight from

China. The BIA found: “[T]he husband’s asylum applica-

tion mentioned that he was applying for asylum based

on China’s coercive population control policy, but the

lead respondent mentioned in her arrival statement and

her credible fear interview that she feared persecution

only due to her practice of Falun Gong.” The BIA

found Xiao’s omission from her arrival statement and

credible fear interview particularly significant because:

(1) Jiang claimed in his asylum application that he

suffered persecution because of her abortion; and (2) Xiao

was in contact with Jiang by telephone and knew why

he had applied for asylum.

The BIA also affirmed based on an inconsistency that the

IJ found in testimony on Jiang’s argument with family

planning officials. The IJ did not believe that Jiang could

have received the fine notice on the same day that the

abortion took place. In his written application, Jiang

said he argued with officials in Guang Tou town, but

he testified at the merits hearing that he argued with

officials in his village of Nan Tian and these local officials

delivered the fine. The IJ found these inconsistencies

weighed on petitioners’ credibility. The IJ did not believe

that if Jiang argued in Guang Tou town, as he originally

stated, the family planning officials in Nan Tian would

know of the argument soon enough to hand-deliver

an immediate fine. The BIA agreed, stating it found

“highly speculative that the lead respondent had an

abortion in a different village from where her husband

lived, but yet a family planning official hand delivered

8 No. 08-1120

notice of a fine to his house on the same day as the

alleged abortion.”

The BIA also found the submission of an abortion

certificate into evidence adversely affected the petitioners’

credibility. The IJ referenced the U.S. Department of

State Country Reports and 2004 Profile of China,

which suggest that abortion certificates are not issued for

involuntary abortions but are issued after voluntary

abortion only to allow time off for work. Xiao testified

that, with the help of her parents, she was able to obtain

a certificate. The IJ found this testimony incredible. The

BIA agreed, stating: “The respondent’s submission of

an abortion certificate undermined the claim that any

abortion was involuntary.”

The BIA also found that even if Xiao’s testimony

about Falun Gong practice was found to be credible, it

would not amount to a finding of well-founded fear of

future persecution.

Petitioners appeal the BIA decision.

II. Analysis

An alien qualifies for asylum if he can demonstrate

by credible evidence that he is a “refugee.” 8 U.S.C.

§ 1158(b)(1)(A). The INA defines a refugee as a person

who is “unable or unwilling to avail himself or herself of

the protection of, that country [of nationality] 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). If an alien establishes past persecution,

No. 08-1120 9

there is a rebuttable presumption of future persecution.

To still deport the alien, the government must then

show that country conditions have changed, meaning

the past persecutors are no longer able to persecute.

8 C.F.R. § 1208.13(b)(1).

In the instant case, the lower courts found Xiao and

Jiang not credible. An adverse credibility finding, if

sustained, is fatal to an application for asylum. Xiao and

Jiang argue that the BIA’s adverse credibility determina-

tion is not supported by substantial evidence. Where, as

here, the BIA does not expressly adopt the IJ’s findings

but rather issues its own opinion, we review the BIA’s

decision alone. Moab v. Gonzales, 500 F.3d 656, 659 (7th

Cir. 2007).

We will uphold the BIA decision so long as it is sup-

ported by substantial evidence, and will overturn it “only

if the record compels a contrary result.” Mabasa v.

Gonzales, 455 F.3d 740, 744 (7th Cir. 2006). Pre-Real ID Act

credibility determinations must be based on “specific

cogent reasons” that have a “legitimate nexus to the

finding and that go to the heart of the applicant’s claim.”

Giday v. Gonzales, 434 F.3d 543, 550 (7th Cir. 2006); Capric v.

Ashcroft, 355 F.3d 1075, 1086 (7th Cir. 2004). The Court

will not overturn adverse credibility determinations

simply because the evidence might support an alternate

finding. Kllokoqi v. Gonzales, 439 F.3d 336, 341 (7th Cir.

2005). Credibility determinations should be disturbed

only under “extraordinary circumstances.” Shmyhelskyy

v. Gonzales, 477 F.3d 474, 479 (7th Cir. 2007).

The BIA based its decision upholding the adverse

credibility finding of the IJ in part on Xiao’s failure to

10 No. 08-1120

disclose her purported forced abortion during her

airport arrival interview and her credible fear interview.

According to Seventh Circuit case law, in making a deter-

mination, an adjudicator may properly consider state-

ments made at an airport interview as long as they are

reliable. Jamal-Daoud v. Gonzales, 403 F.3d 918, 923 (7th Cir.

2005); Balogun v. Ashcroft, 374 F.3d 492, 504-05 (7th Cir.

2004). In the instant case, the interviews were found to be

reliable because there was a translator present and Xiao

seems to have understood the questions.

Xiao claims that she did not mention forced abortion

in Miami because she was ashamed that she had become

pregnant before marriage. While this may be so, this

explanation cannot overcome the high level of deference

that we give to the lower courts. The BIA concluded that

Xiao’s inconsistent statements regarding her reasons for

fleeing China adversely affect her credibility, and we

cannot say that the record compels a contrary result. These

inconsistencies are specific, cogent reasons to make an

adverse credibility finding, and they go to the heart of

the applicant’s claim.

This single discrepancy is enough to find petitioners’

entire testimony not credible. We have held that the

“addition of new factual assertions that were not originally

set forth can be viewed as inconsistencies providing

substantial evidence that the applicant is not a reliable or

truthful witness.” Oforji v. Ashcroft, 354 F.3d 609, 614 (7th

Cir. 2003); see also Huang v. Gonzales, 453 F.3d 942, 945-47

(7th Cir. 2006) (upholding adverse credibility determina-

tion based on a single significant inconsistency); Chen v.

No. 08-1120 11

Gonzales, 420 F.3d 707, 710 (“[s]ignificant discrepancies

among different versions of an alien’s statement are

generally a permissible basis for an adverse credibility

decision.”).

In upholding the adverse credibility finding, the BIA

cited other inconsistencies as well. It stated that the

divergent statements about the circumstances under

which Jiang argued with family planning officials and

received a fine notice on the same day that the abortion

took place adversely affected the petitioners’ credibility. It

also found incredible the submission of an abortion

certificate into evidence when a country report indicated

abortion certificates were only given for voluntary abor-

tions. Xiao and Jiang claim that this finding “over-relied”

on the State Department report. While we are careful to

not treat State Department reports as “Holy Writ,” see

Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000), we defer

to State Department reports in the absence of a contra-

dictory, “highly credible independent source of expert

knowledge.” Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir.

1997). Moreover, in another case this Court found

credible a petitioner’s testimony that she did not have

an abortion certificate because the abortion was involun-

tary, and certificates are only given for voluntary abor-

tions. Lin v. Ashcroft, 385 F.3d 748, 753-54 (7th Cir. 2004).

In evaluating these reasons for the adverse credibility

finding, we cannot say that the record compels a contrary

result.

We uphold the adverse credibility finding. This finding

is fatal to petitioners’ entire asylum claim. We need not

12 No. 08-1120

address whether, absent an adverse credibility finding,

petitioners’ claims would have supported a well-

founded fear of persecution.

III. Conclusion

The petition for review of the BIA’s order is hereby

D ENIED.

10-27-08