Wu Xiong Tao v. Holder ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
February 25, 2010
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
WU XIONG TAO,
Petitioner,
v. No. 08-9573
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.
Petitioner Wu Xiong Tao, a native and citizen of the People’s Republic of
China, seeks review of an order entered by the Board of Immigration Appeals
(BIA) affirming the Immigration Judge’s (IJ) decision denying his application
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
for asylum and restriction on removal (formerly known as withholding of
removal) and ordering him removed to China. 1 Exercising jurisdiction under
8 U.S.C. § 1252(a)(1), we deny the petition for review.
Background
Mr. Tao was arrested for illegally entering the United States from Mexico
in June 2005. After removal proceedings were commenced, Mr. Tao conceded
removability and applied for asylum and restriction on removal. Mr. Tao alleges
that he was persecuted by the government of China in two ways: (1) his wife, who
still resides in China, was forced to undergo an abortion in September 2000 after
Chinese family planning officials discovered she was pregnant with the couple’s
second child; and (2) he was arrested and imprisoned for a month in February
2005 for practicing Falun Gong, a religious practice the government of China
outlawed in 1999.
A. Mr. Tao’s Hearing Testimony.
Mr. Tao testified regarding his alleged persecution in China at a merits
hearing that was held before the IJ on May 14, 2007. As summarized in the brief
that he has submitted to this court, Mr. Tao testified as follows:
Tao married his wife on February 15, 1995 in China. In this
marriage his wife gave birth to a daughter on February 17, 1997.
1
Although Mr. Tao also sought relief under the United Nations Convention
Against Torture (CAT), he has abandoned his CAT claim in this appeal, and it is
therefore waived.
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Subsequently, in March 1997, Tao’s wife was forcibly inserted with
an IUD insertion procedure, and additionally was required to attend
regular gynecological checkups. . . . On September 26, 2000, when
Tao’s wife reported for her scheduled checkup at the local birth
control office without knowing that she was in effect pregnant, she
was found to be pregnant in the local family planning office.
Subsequently, the local birth control officials detained Tao’s wife
and forced her to undergo an abortion procedure. . . .
In July 2004, a coworker of Tao . . . introduced . . . him [to]
Falun Gong, saying that Falun Gong would help cultivate [his] mind
and benefit [his] health. In February 2005, the same coworker called
Tao and asked him to resume practicing Falun Gong. Tao went to
the coworker’s apartment, and . . . roughly about one hour after they
started practicing, police came into the scene[.] The police ordered
Tao and other Falun Gong fellows to squat . . . and handcuffed them
one by one and took them to the police station. Tao testified that he
was detained alone for a month. He was also questioned and beaten
in the course of the detention. In the evening of the day of his
release, a security guard secretly released him and asked him not to
mention his name . . . . Tao then ran away to a friend’s home. He
called home, and learned from his mother that the guard was his
father’s friend. He said that after his escape the Chinese police
searched his home from time to time until September 2006.
Aplt. Br. at 8-10.
In its response brief, the government has accurately summarized the
inconsistencies and omissions in Mr. Tao’s hearing testimony:
In contrast to his testimony before the Immigration Judge, Tao
failed to mention his purported arrest [for practicing Falun Gong] on
his I-217 form (information for travel document or passport). [The
Border Patrol Agent] checked “no” in block 22 of the form, which
inquires as to whether the alien has ever been “arrested, in prison or
a public institution in the country of which [he is] a national, subject,
or citizen.” When asked about this omission, Tao replied that he had
mentioned his arrest. However, as the Immigration Judge
subsequently verified, Tao’s I-217 contained otherwise accurate
information regarding his family and background in China, including
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the names of his mother (Lan Mei Zheng), father (Bin Wen), wife
(Fhao Sho Ying Liu), and the nearest largest city to his birthplace
(Fuzho).
Tao testified that he came to the United States because “some
people from [his] hometown” had advised him that it was a “country
of democracy and of human rights” and it would provide “freedom
for religion.” Tao was unable, however, to provide details regarding
these people such as their names or where they lived. Instead, he
vaguely testified that “it’s my hometown fellow” and “they say the
United States is good.” He also testified that he was assisted in his
trip to the United States by “snakeheads.”
Tao testified that he traveled through Holland and Mexico
en route to the United States. When questioned at the border,
however, Tao stated, as indicated in his inadmissible alien report
(I-213), that he had traveled through Singapore and Guatemala and
then walked to Mexico. In response to this inconsistency, Tao
testified that the report was “absolutely incorrect.” The I-213 further
indicated that Tao claimed he had entered the United States “to seek
employment and for fear of persecution in his country because of his
religious beliefs.” Tao never mentioned China’s family planning
policy or his wife’s alleged forced abortion in the course of his
interview with the immigration officer. When asked why he had
failed to mention his wife’s forced abortion to immigration officials
at the border, Tao replied that “the reason I didn’t mention abortion
is abortion will not result as a beaten up but practice Falun Gong . . .
will result in beaten up by somebody.” However, Tao later recanted
this claim and instead asserted that he had, in fact, mentioned the
family planning policy at the border.
Tao was unable to provide a document with a physician’s
diagnosis or report of his wife’s abortion. He instead submitted an
unauthenticated “abortion certificate.” He also submitted an
unauthenticated copy of his wife’s IUD “Check Up Booklet.”
Aplee. Br. at 6-8 (record citations and footnote omitted; third and fourth
alteration in original).
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B. Immigration Judge’s Decision.
On September 28, 2007, the IJ entered a written decision denying Mr. Tao’s
application for asylum and restriction on removal. The IJ first found, based on
“the totality of the evidence, all the relevant factors presented, and the entire
record,” A.R. at 70, that Mr. Tao’s testimony regarding his wife’s alleged forced
abortion and his alleged imprisonment for practicing Falun Gong was not
credible. Specifically, the IJ found that Mr. Tao’s application and “other
evidence submitted into the record reveal several minor and major omissions
which taken together undermine [Mr. Tao’s] credibility as to the veracity of the
events which transpired and which [form] the basis of [his] claims.” Id.Among other deficiencies in Mr. Tao’s testimony, the IJ noted the
following: (1) although Mr. Tao testified that villagers from his home province
had told him that he could live in a free society in the United States, he could not
remember the names of any of the villagers or where they lived; (2) although the
Form I-213 regarding Mr. Tao’s border interview following his arrest indicated
that he had traveled through Singapore and Guatemala to get to the United States,
he testified that he had flown through the Netherlands and Mexico; (3) Mr. Tao
did not mention his wife’s alleged forced abortion during his border interview;
and (4) the Form I-217 regarding Mr. Tao’s border interview indicated that he
told the Border Patrol Agent that he had never been arrested in China. Id. at 71.
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The IJ further found that Mr. Tao had “failed to meet his burden of proof to
show that he has suffered past persecution or that he has a well founded fear of
future persecution in China on account of his religion or of his political opinion
because he has failed to supply corroborating evidence, including authentication
of the documentary proof that his wife purportedly suffered a forced abortion, as
required by the regulations.” Id. at 71-72 (citing 8 C.F.R. § 1287.6 with a
parenthetical stating that it provides “that official foreign documents must be
attested by a foreign official and must be certified by a U.S. State Department
officer”). In support of this finding, the IJ noted that “counsel for [Mr. Tao]
appeared for several hearings and was aware that the documents had not been
authenticated, that it was [Mr. Tao’s] burden to do so, and [counsel] has offered
no explanation as to whether good faith efforts were in fact made to authenticate
his documents.” Id. at 72.
C. Board of Immigration Appeals’ Decision.
Mr. Tao appealed the IJ’s decision to the BIA, and, on September 3, 2008,
a single member of the BIA entered a brief order, pursuant to 8 C.F.R.
§ 1003.1(e)(5), dismissing Mr. Tao’s appeal and affirming the IJ’s decision. See
A.R. at 5-7. On October 28, 2008, to correct a defect in the service of the
September 3, 2008, order, the BIA vacated the order and issued a new order that
incorporated by reference the text of the September 3, 2008, order. Id. at 1-4.
For purposes of this appeal, we are therefore reviewing the brief order that was
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entered on September 3, 2008, as incorporated in the BIA’s October 28, 2008,
order.
In the brief order, the BIA affirmed the IJ’s findings that Mr. Tao lacked
credibility and had failed to meet his burden of proof, stating that “the Board’s
conclusions upon review of the record coincide with those the Immigration Judge
articulated in his . . . decision.” Id. at 3 (quotation omitted). But this was not a
summary affirmance in accordance with 8 C.F.R. § 1003.1(e)(5), as the BIA then
set forth a detailed and independent explanation of the reasons for the affirmance:
The Immigration Judge describes several specific reasons to find
[Mr. Tao] lacks credibility. While [Mr. Tao] raises objections to
some of these findings, overall they demonstrate a lack of credibility
on the part of [Mr. Tao]. In particular, we note his argument that he
did not mention his spouse’s alleged forced abortion at the time of
his arrest in the United States, as the primary basis for his claim is
his practice of Falun Gong. However, these same forms fail to
mention that he was arrested and detained for 1 month due to his
Falun Gong practice. The forms simply note that the respondent was
not arrested. . . . While these discrepancies arise from the brief
interviews conducted by border agents, we note that a great deal of
personal information regarding [Mr. Tao] was recorded correctly.
While these inconsistencies alone may not have been sufficient
to support the Immigration Judge’s credibility determination, they do
clearly cast doubt on [Mr. Tao’s] veracity. Further, the Immigration
Judge did engage in some speculation regarding [Mr. Tao’s] ability
to leave China under his own name, despite having escaped from
prison and regarding why or if the Chinese government continued to
search for [Mr. Tao] in China, despite being informed that he was in
the United States. See Uanreroro v. Gonzales, 443 F.3d 1197, 1205
(10th Cir. 2006) (stating that a finding that testimony is implausible
may not be based upon speculation, conjecture, or unsupported
personal opinion). These anomalies may be explicable, but they,
along with [Mr. Tao’s] inability to recall the names of fellow
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villagers, his generally vague testimony, and the discrepancies noted
above, lead us to the conclusion that the Immigration Judge’s adverse
credibility finding is not clearly erroneous. . . .
Also, while corroborating evidence is not necessarily required
of an applicant for asylum, here the testimony lacked credibility and
[Mr. Tao] was provided ample time to obtain corroboration for his
claim. . . . [Mr. Tao] has submitted little other support for his claim.
[Mr. Tao] had almost 2 years to prepare for his hearing, his
immediate family still lives in China, and the Immigration Judge
cited specific documents that [Mr. Tao] could have been expected to
produce or to have authenticated. . . . Given his lack of credibility
and the lack of documentary support, [Mr. Tao’s] appeal will be
dismissed and the [the Immigration Judge’s decision will be
affirmed].
A.R. at 3-4.
Analysis
A. Standards of Review.
When reviewing a brief order entered by a single member of the BIA under
8 C.F.R. § 1003.1(e)(5), we review the BIA’s decision as the final order of
removal but “consult the IJ’s opinion to the extent that the BIA relied upon or
incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). In
addition, “when seeking to understand the grounds provided by the BIA, we are
not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Id. (quotation omitted).
While we review legal determinations de novo, our review of factual
findings is governed by the substantial evidence standard. See Witjaksono v.
Holder, 573 F.3d 968, 977 (10th Cir. 2009). Thus, we must “look to the record
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for ‘substantial evidence’ supporting the agency’s decision: ‘[O]ur duty is to
guarantee that factual determinations are supported by reasonable, substantial and
probative evidence considering the record as a whole.’” Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006) (alteration in original) (quoting Elzour v.
Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004)). An alien who is seeking to
overturn a factual finding at the circuit court level faces an uphill battle, however,
because “[t]he agency’s findings of fact are conclusive unless the record
demonstrates that ‘any reasonable adjudicator would be compelled to conclude to
the contrary.’” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008)
(quoting 8 U.S.C. § 1252(b)(4)(B)) (further quotation omitted).
“Credibility determinations are factual findings . . . subject to the
substantial evidence test.” Uanreroro, 443 F.3d at 1204. As a result, “we will
not question the immigration judge’s or BIA’s credibility determinations as long
as they are substantially reasonable.” Woldemeskel v. INS, 257 F.3d 1185, 1192
(10th Cir. 2001). But because an alien’s testimony alone, if credible, may support
an application for asylum or restriction on removal without corroboration,
see 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); 8 C.F.R. §§ 208.13(a),
208.16(b), the IJ or BIA “must give specific, cogent reasons for disbelieving it.”
Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir. 2004) (quotation omitted).
Further, an adverse credibility finding “may not be based upon speculation,
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conjecture, or unsupported personal opinion.” Chaib v. Ashcroft, 397 F.3d 1273,
1278 (10th Cir. 2005) (quotation omitted).
B. Adverse Credibility Finding.
The BIA determined that the IJ’s adverse credibility finding was not clearly
erroneous, relying on the following factors: (1) the Form I-217 regarding
Mr. Tao’s border interview indicated that he told the Border Patrol Agent that he
had never been arrested in China; (2) Mr. Tao failed to mention his wife’s forced
abortion during his border interview; (3) there were “anomalies” in Mr. Tao’s
hearing testimony concerning his “ability to leave China under his own
name . . . and regarding why or if the Chinese government continued to search for
[him] in China, despite being informed that he was in the United States”;
(4) Mr. Tao was unable to recall the names of the “fellow villagers” who told him
that he should seek asylum in the United States; and (5) Mr. Tao’s testimony at
the hearing before the IJ was “generally vague.” A.R. at 3.
We conclude that, on the whole, the BIA’s affirmance of the IJ’s adverse
credibility finding was substantially reasonable and that no reasonable adjudicator
would be compelled to conclude to the contrary. We are persuaded that both the
IJ’s and the BIA’s decisions are based on substantial evidence. The discrepancies
between the information contained in the documents prepared in connection with
Mr. Tao’s border interview and his testimony at the hearing before the IJ support
the IJ’s adverse credibility finding and the BIA’s affirmance.
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As set forth above, the first discrepancy is the fact that the Form I-217
regarding Mr. Tao’s border interview indicated that he told the Border Patrol
Agent that he had never been arrested in China. The second discrepancy is the
fact that Mr. Tao failed to mention his wife’s alleged forced abortion during his
border interview. Although Mr. Tao argues in this appeal that he has plausible
explanations for these discrepancies and that the IJ and the BIA therefore erred in
relying on them, see Aplt. Br. at 17-20, plausible explanations are not enough to
reverse an adverse credibility determination. Instead, having been adjudged not
credible in the administrative proceedings, Mr. Tao has the burden to point to
evidence in the record showing that any reasonable adjudicator would be
compelled to conclude to the contrary on the credibility issue, see Uanreroro,
443 F.3d at 1204, and he has failed to make such a showing.
(1) Beginning with the first discrepancy, we note at the outset that the IJ
misstated the record on this point. Specifically, the IJ stated that Mr. Tao
“admitted” at the hearing before the IJ “that he answered ‘no’ when giving an
answer for Block 22 to the preparer of his Form I-217 Travel Document at the
time of his arrest, indicating that he had never been arrested in China.” A.R.
at 57-58. To the contrary, however, as the government correctly notes in its
response brief, Mr. Tao testified “that he had mentioned his arrest.” Aplee. Br.
at 6 (citing A.R. at 158). Although Mr. Tao did not assert a claim of error in his
appeal to the BIA based on this misstatement of the record by the IJ, see A.R.
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at 16-32, and thus failed to exhaust such a claim before the BIA, see Sidabutar v.
Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007), we conclude that the BIA
nonetheless implicitly recognized and rejected Mr. Tao’s explanation regarding
the Form I-217 and therefore cured any error by the IJ. As the BIA explained:
[The border interview] forms fail to mention that [Mr. Tao] was
arrested and detained for 1 month due to his Falun Gong practice.
The forms simply note that [Mr. Tao] was not arrested. . . . While
[this] discrepanc[y] arise[s] from the brief interviews conducted by
border agents, we note that a great deal of personal information
regarding [Mr. Tao] was recorded correctly.
A.R. at 3. In other words, because the Form I-217 contained correct information
regarding other matters, the BIA rejected Mr. Tao’s claim in the brief that he
submitted to the BIA that the interpreter at his border interview had
“misunderstood him” regarding his arrest in China. See A.R. at 28.
We conclude that the BIA’s decision on this point is substantially
reasonable and that no reasonable adjudicator would be compelled to conclude to
the contrary. As accurately summarized by the government in its response brief,
“the Immigration Judge verified that several other details from Tao’s I-217 form
were accurate, including the names of his mother (Lan Mei Zheng), father (Bin
Wen), wife (Fhao Sho Ying Liu), and the nearest largest city to his birthplace
(Fuzho).” Aplee. Br. at 16. Moreover, we note that the Form I-217 accurately
recorded Mr. Tao’s claim that he had practiced Falun Gong in China. See A.R.
at 203. As a result, we conclude that substantial evidence supports the BIA’s
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rejection of Mr. Tao’s claim that the omission of his arrest was a translation error.
(2) With regard to the second discrepancy–the fact that Mr. Tao failed to
mention his wife’s alleged forced abortion during his border interview–Mr. Tao
does not dispute that he failed to disclose the abortion to the Border Patrol Agent.
Instead, as the BIA noted, Mr. Tao claims “that he did not mention his spouse’s
alleged forced abortion at the time of his arrest in the United States [because] the
primary basis for his [persecution] claim is his practice of Falun Gong.” Id. at 3.
Although this is a plausible explanation, especially in light of Mr. Tao’s
testimony that he fled China within months of his alleged arrest for practicing
Falun Gong, while the alleged forced abortion occurred several years earlier, it
does not compel a contrary conclusion on the credibility issue concerning the
abortion, as nothing in the administrative record precluded the IJ or the BIA from
rejecting it. Thus, we see no error with regard to the adverse credibility finding
on Mr. Tao’s forced abortion claim.
(3) The other discrepancies go to the overall credibility of Mr. Tao. It is
doubtful Mr. Tao would escape China based on the advice of people he did not
trust. To testify that he could no longer identify the villagers with whom he
discussed his plans, absent an articulated reason why he should not disclose their
identities, seems unrealistic. The IJ could conclude this discrepancy contributed
to the overall credibility assessment and the ultimate determination that Mr. Tao’s
testimony lacked credibility.
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The BIA’s observation about the vagueness of Mr. Tao’s testimony also
goes to Mr. Tao’s overall credibility, as well as to what the IJ and BIA perceived
to be a shifting story in support of Mr. Tao’s claims.
In sum, the record as a whole supports the IJ’s credibility determination.
C. Authentication Issue.
The BIA also affirmed the IJ’s finding that Mr. Tao had failed to submit
sufficient corroborating documentary evidence to meet his burden of proof to
establish a persecution claim. As the BIA explained, Mr. Tao “had almost 2 years
to prepare for his hearing, his immediate family still lives in China, and the
Immigration Judge cited specific documents that [Mr. Tao] could have been
expected to produce or to have authenticated.” Id. at 4. In his decision, the IJ
relied on similar reasoning to support his finding that Mr. Tao had failed to
submit sufficient documentary evidence to satisfy his burden of proof, as the IJ
“note[d] that counsel for [Mr. Tao] appeared for several hearings and was aware
that the documents had not been authenticated, that it was his burden to do so,
and [counsel] has offered no explanation as to whether good faith efforts were in
fact made to authenticate [Mr. Tao’s] documents.” Id. at 72.
The IJ also made a more specific finding to the effect that Mr. Tao had
failed to submit authenticated “documentary proof that his wife purportedly
suffered a forced abortion, as required by the [immigration] regulations.” Id.
(citing 8 C.F.R. § 1287.6). The regulation cited by the IJ was enacted in 2003,
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and it is a duplicated version of 8 C.F.R. § 287.6. See 68 Fed. Reg. 9845(Feb. 28, 2003). The specific reason for the duplication is not set forth in the
Federal Register, however, and it appears that many courts refer only to § 287.6
when discussing authentication issues in immigration cases. See, e.g., Jiang v.
Gonzales, 474 F.3d 25, 29 (1st Cir. 2007) (noting that 8 C.F.R. § 287.6(b)
“provides a detailed procedure for the authentication of foreign official records
for use in immigration proceedings”); but see Zheng v. U.S. Att’y Gen., 2009 WL
2700165, at *4 n.1 (11th Cir. Aug. 28, 2009) (unpublished) (stating “that 8 C.F.R.
§ 287.6 applies to proceedings before an IJ, whereas 8 C.F.R. § 1287.6 applies to
proceedings before the BIA”). To avoid confusion, because the original version
of the regulation and the duplicated version are identical, we will likewise refer
only to § 287.6. 2
2
Both regulations provide, in pertinent part, as follows:
In any [immigration] proceeding under this chapter, an official
record or entry therein [from a foreign country], when admissible for
any purpose, shall be evidenced by an official publication thereof, or
by a copy attested by an officer so authorized. . . . The attested
copy, with the additional foreign certificates if any, must be certified
by an officer in the Foreign Service of the United States, stationed in
the foreign country where the record is kept.
8 C.F.R. §§ 287.6(b)(1)-(2), 1287.6(b)(1)-(2). Both regulations also contain
separate procedural requirements for official records emanating from countries
that are signatories to the “Convention Abolishing the Requirement of Legislation
for Foreign Public Document.” Id. at §§ 287.6(c), 1287.6(c). There is no
indication in the administrative record that the latter provisions are applicable to
(continued...)
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We agree with the IJ and the BIA that Mr. Tao failed to submit sufficient
corroborating documentary evidence to meet his burden of proof to establish a
persecution claim. In order to explain our holding, however, we must: (1) clarify
several matters that relate to the authentication issue; and (2) summarize the
extensive proceedings that took place in the immigration court pertaining to the
authentication issue which, inexplicably, neither Mr. Tao nor the government
have discussed in the briefs they have submitted to this court.
First, we note that Mr. Tao is not arguing in this appeal that the IJ and the
BIA erred by failing to properly consider the documentary proof that he submitted
to support his claim that he was imprisoned in China for practicing Falun Gong. 3
As a result, that aspect of Mr. Tao’s persecution claim depends solely on the
credibility issue discussed above, and we do not need to discuss it in connection
with the authentication issue.
Second, contrary to the BIA’s statement in its decision, our review of the
administrative record indicates that the IJ never “cited specific documents that
[Mr. Tao] could have been expected to produce.” A.R. at 4. Instead, as set forth
below, in the immigration court proceedings that took place before the merits
2
(...continued)
this case, however, and we will therefore assume that China is not a signatory to
the specified convention.
3
The documentary proof consisted of purported letters from Mr. Tao and his
wife discussing Mr. Tao’s alleged imprisonment in February 2005 for practicing
Falun Gong. See A.R. at 216, 221-22.
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hearing, the IJ raised only an authentication issue, and he raised the
authentication issue with regard to just one of the documents submitted by
Mr. Tao. That document was the purported “abortion certificate” that Mr. Tao
submitted to support his claim that his wife was forced to have an abortion in
September 2000. Id. at 469 (Item No. 10), 514-15. Thus, there are no issues in
this appeal concerning whether Mr. Tao failed to produce or authenticate any
other documentary evidence.
Third, we note that, after raising the authentication issue, the IJ initially
assumed the responsibility for having the abortion certificate authenticated in
accordance with 8 C.F.R. § 287.6. Specifically, the administrative record shows
the following:
a. At a hearing held on March 22, 2006, the IJ told counsel for Mr. Tao
that he personally would send the abortion certificate to the United States State
Department “with a letter from [himself] asking them to authenticate [the abortion
certificate].” A.R. at 98. Counsel for Mr. Tao then stated that “[w]e’ll appreciate
that, Your Honor, because [Mr. Tao] himself cannot have the abortion certificate
authenticated. The Chinese government won’t do it for us.” Id. at 99. The IJ
then set a hearing for July 26, 2006, stating that the purpose of the hearing would
be “[p]rimarily . . . to check on the status to see where we are with the documents
at issue.” Id. at 101.
b. The IJ subsequently sent a letter dated April 12, 2006, to the United
States State Department. The letter stated as follows:
Pursuant to 8 C.F.R. 287.6 which requires authentication of official
records, counsel for the respondent has requested the authentication
of the enclosed document by the U.S. Embassy in the People’s
Republic of China. We have narrowed the original list of documents
for which authentication is being sought to one item: the purported
abortion certificate issued to respondent’s wife. As the verification
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of this document may be dispositive of this case, your assistance will
be greatly appreciated.
Id. at 442.
c. At the hearing subsequently held on July 26, 2006, the IJ informed
counsel for the parties that he had sent his April 12, 2006, letter to the State
Department, but had not received a response to the letter. Id. at 106. The IJ
stated that he would “give them a bit more time and . . . follow up with [an] email
to State to see if they’re making headway on this or what they think the prospects
are [they’re] going to be able to do something for us.” Id. The IJ then set another
hearing for September 27, 2006.
d. At the hearing on September 27, 2006, the IJ informed counsel for the
parties that he still had not heard back from the State Department in response to
his April 12, 2006, letter. Id. at 109-10. The IJ stated that he would “send an
email this afternoon up to State and give this thing a little push.” Id. at 111. The
IJ also set another hearing for December 26, 2006.
e. The next hearing before the IJ was held on December 18, 2006. At that
hearing, the IJ informed counsel for the parties that he still had not heard back
from the State Department regarding the abortion certificate. Id. at 114. The IJ
stated that it would be necessary to go ahead and set the matter for a merits
hearing. Id. The IJ then scheduled a merits hearing before another IJ since he
was retiring.
Fourth, the merits hearing was conducted before the second IJ on May 14,
2007. At the conclusion of the hearing, the second IJ noted that “authentication
of the abortion certificate” was still an “issue,” id. at 191, and he stated that
“[t]hat’s really a respondent’s burden,” id. After counsel for the government
pointed out that the first IJ “took it on himself to try to get” the abortion
certificate authenticated, id. at 193, the second IJ responded: “I’m not going to do
that because that’s not my job to do that,” id. Following a discussion of other
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matters, the second IJ then concluded the merits hearing with the following
statement:
This case is continued until August 13 at 2:30, 2007. We’ll wait to
see what the abortion certificate, the outcome of the authentication
is. We’re going to allow counsel (indiscernible) telephonically that
day. There’s no reason for her to return.
Let’s let the respondent know we’re going to give him three
more months to see whether or not the abortion certificate was
authentic or not authentic.
Id. at 199. The second IJ then had the following exchange with counsel for
Mr. Tao and he also made a statement for the record about the authentication
issue:
JUDGE TO MS. LI
Q. All right. Ms. Li has the original of the abortion
certificate. I’m not sure there’s a way to expedite the process or not.
You’re experienced in this because you have a lot of cases back in
New York, I think, if I remember right.
A. That’s right, Your Honor.
JUDGE FOR THE RECORD
And let’s see if we can’t get [either] a thumbs up or a thumbs
down of whatever it’s going to be so that we can make a decision
based on the authenticity . . . .
Id.Finally, although the administrative record shows that a follow-up hearing
before the second IJ was in fact scheduled for August 13, 2007, id. at 523-24, and
subsequently rescheduled for August 20, 2007, id. at 522, there is no indication in
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the administrative record that a follow-up hearing actually took place in August
2007 or at any time prior to September 28, 2007, when the second IJ issued his
written decision. Instead, according to the administrative record, id. at 413-19,
the only additional thing that happened after the merits hearing pertaining to the
authentication issue is that on June 27, 2007, Mr. Tao’s counsel submitted the
following additional documents to the immigration court: (1) a purported letter
from Mr. Tao’s wife (who still resides in China) stating that she had attempted on
May 31, 2007, to have the abortion certificate authenticated by Chinese
government officials, but they had refused to authenticate the document, id. at
414; and (2) an unauthenticated “Certificate of Donghu Town Family Planning
Office” that purported to certify that Mr. Tao’s wife “having pregnancy by
violating policy, was given an abortion at Donghu Town Hospital on
September 28, 2000,” id. at 418. Neither the second IJ nor the BIA referred to
either of these documents in their decisions, however.
As noted above, Mr. Tao’s counsel in this appeal (he was represented by a
different attorney in the administrative proceedings below) has not referred to any
of the above-described proceedings involving the abortion certificate in the brief
that he has submitted to this court. Likewise, counsel has not referred to the
additional documents that were submitted to the immigration court after the
merits hearing. Instead, Mr. Tao’s counsel simply argues in conclusory fashion
that “the IJ . . . unreasonabl[y] imposed a requirement for authentication [in]
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Tao’s case without considering any alternative mean[s] to establish[] the
authenticity of the supporting documents.” Aplt. Br. at 20. In support of this
argument, Mr. Tao’s counsel then goes on to correctly note that “one Court has
held, in the context of [an] asylum case, that an IJ may not dismiss evidence
based merely on an applicant’s ‘failure to authenticate it pursuant to
[§ 287.6].’” Id. at 21 (quoting Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,
405 (2d Cir. 2005) (second alteration in original)). According to Mr. Tao’s
counsel, “[t]his rule . . . derives from the recognition that asylum applicants can
not always reasonably be expected to have an authenticated document from an
alleged persecutor and, therefore, the BIA’s authentication regulation is not the
exclusive means of authenticating record[s] before an immigration judge.” Id.(quotation and citation omitted); see also Yan v. Gonzales, 438 F.3d 1249, 1256
n.7 (10th Cir. 2006) (noting that “[s]ince [the authentication procedures described
in 8 C.F.R. § 287.6] generally require attestation of documents by the very
government the alien is seeking to escape, courts generally do not view the alien’s
failure to obtain authentication as requiring the rejection of a document”) (citing
Cao He Lin, 428 F.3d at 404) (emphasis omitted)); Jiang, 474 F.3d at 29(concluding that it was error for an IJ to “reject[] . . . documents solely because
they were not authenticated in strict conformity with [8 C.F.R. § 287.6]”); Khan
v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (noting that “[d]ocuments may be
authenticated in immigration proceedings through any recognized procedure” and
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that “[t]he procedure specified in 8 C.F.R. § 287.6 provides one, but not the
exclusive, method” of authentication in immigration proceedings) (quotations
omitted)).
Regardless of how the circuit courts have applied the authentication
requirement in 8 C.F.R. § 287.6, however, we conclude that the second IJ and the
BIA acted correctly in refusing to consider the purported abortion certificate as
competent evidence to support Mr. Tao’s persecution claim. Most importantly,
as set forth above, at the conclusion of the merits hearing, the second IJ granted
Mr. Tao an additional three months “to see whether or not the abortion certificate
was authentic or not authentic,” A.R. at 199, and a follow-up hearing was
scheduled to further explore the authentication issue. For reasons that are not
clear, however, the follow-up hearing never took place, and there is no indication
in the administrative record that Mr. Tao’s counsel made any efforts during the
three-month period or thereafter to utilize the authentication procedure in
8 C.F.R § 287.6 or to propose an alternative procedure. To the contrary, based on
the record before us, it appears that Mr. Tao’s counsel did nothing except submit
the purported letter from Mr. Tao’s wife and the alleged family planning
certificate to the immigration court in June 2007, but those documents were
likewise never authenticated and were thus of little or no use.
In short, this is not a case where an alien has made a specific evidentiary
showing that he was unable to comply with the requirements of § 287.6 due to a
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lack of cooperation by government officials, either in this country or a foreign
country. Cf. Gui Cun Liu v. Ashcroft, 372 F.3d 529, 530, 531-33 (3d Cir. 2004)
(holding that two aliens from China should have been allowed to prove the
authenticity of two abortion certificates through means other than § 287.6 where
counsel for the aliens made a specific evidentiary showing that “attempts to abide
by the requirements of § 287.6 failed due to lack of cooperation from government
officials in [China]”). Having reviewed the issue de novo as a legal matter,
we therefore see no error pertaining to the authentication issue.
Conclusion
The petition for review is DENIED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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