Huang v. Atty Gen USA ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-16-2005
Huang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1796
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1796
KAI TING HUANG,
Petitioner
v.
ALBERTO GONZALES 1 , Attorney General of the
United States
Respondent.
On petition for review of a final order
of the Board of Immigration Appeals
Agency No: A77-353-862
Submitted pursuant to Third Circuit LAR 34.1(a)
on June 2, 2005
Before: FUENTES, GREENBERG
and COWEN, Circuit Judges
(Filed: September 16, 2005 )
______________________
OPINION OF THE COURT
_____________________
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Caption amended pursuant to Fed. R. App. Pro. 43(c).
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Fuentes, Circuit Judge.
Petitioner Kai Ting Huang appeals the decision of the Board of Immigration
Appeals (BIA) affirming the immigration judge’s (IJ) denial of asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). Because the
BIA’s decision was supported by substantial evidence, we will affirm.
I. Facts and Procedural History
As we write only for the parties, we recite only the essential facts. Huang is a
native of China. He alleges that in May 1998, less than three months after the birth of his
daughter, government authorities forcibly implanted an IUD in his wife. Huang alleges
that the IUD malfunctioned and his wife became pregnant again in October 2000. In an
effort to evade family planning officials, Huang’s wife moved to another apartment.
Nevertheless, in March 2001, authorities were able to locate her and she was forced to
have an abortion. Huang claims that the IUD was replanted in April 2001 and that he
was fined 10,000 RMB (or “Renminbi”). Huang left China that same month for the
United States.
At his airport interview, Huang told an immigration officer that he was married
but separated from his wife, and that they have one daughter. He said had come to the
United States to “look for a job and to stay here.” When asked is he would be harmed if
returned to China, he responded that he would, because he owed his friend money.
Huang later told immigration officials that he had fled China because of human rights
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violations, and described the above events.
In May 2001, the INS initiated removal proceedings against Huang under 8
U.S.C. § 1182(a)(6)(C)(i). Huang conceded removability but applied for relief from
deportation. The IJ denied his claims in October 2002. In March 2004, the BIA reversed
the finding that Huang’s application was frivolous, but concurred with the IJ that Huang
had failed to meet his burden of proof with regard to eligibility for asylum, withholding
of removal, or relief under CAT. The BIA also affirmed the IJ’s adverse credibility
determination, for the reasons stated by the IJ. Huang now appeals the order of the BIA.
II. Discussion
We review the BIA and IJ’s decisions under the substantial evidence standard. See
Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). We conclude that the IJ’s decision,
and the BIA’s affirmance of it, were supported by a number of factors.
First, Huang did not initially represent that he was in danger in China but instead
indicated that he came to the United States for employment purposes and that he would
be harmed if he returned because he owed money to a friend. We are cautious in our
reliance on airport interviews, and, standing alone, inconsistencies between statements at
such an interview and at later proceedings will not support an adverse credibility
determination. See Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir.1998).
Nevertheless, together with the other factors present in this case, discussed below, we
believe the clear answers that Huang gave to immigration officials upon his arrival
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undermine the credibility of his claims.
A second set of factors supporting the IJ’s adverse credibility determination are a
number of inconsistencies in Huang’s testimony. Huang at one point indicated that he
left China in 2000 but on another occasion that he left in 2001. He also first indicated
that seven or eight officials came to retrieve his wife for an abortion and later claimed
that six or seven officials came. These are minor inconsistencies and “[g]enerally, minor
inconsistencies . . . that reveal nothing about an asylum applicant's fear for his safety are
not an adequate basis for an adverse credibility finding.” Berishaj v. Ashcroft, 378 F.3d
314, 323 (3d Cir.2004) (quotations and citations omitted). However, Huang’s confusion
with respect to the details of his claim may be telling in conjunction with a more
significant inconsistency regarding whether he was home when the authorities came to
retrieve his wife for a forced abortion. Huang testified that he and his wife were both at
home but then testified that he was out and was later told what had happened. We cannot
dismiss this inconsistency about the event at the heart of Huang’s asylum claim as the
result of mere nervousness because though Huang reiterated in his testimony that he was
not home, in the supplement to his asylum application, he states that he and his wife were
at home sleeping when a birth control cadre came for his wife. In that statement, he
recounts having begged the officials not to take his wife to the hospital for an abortion,
or at the least, to allow Huang to accompany her. We believe that this inconsistency,
combined with Huang’s statements to immigration officials upon his arrival in the United
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States, support the IJ’s adverse credibility determination.
Huang argues that whatever the IJ's credibility determination, it was obligated to
explain why it did not give weight to the documents Huang submitted, which would
demonstrate, at least, that his wife underwent the IUD and abortion procedures. But at
the hearing, the IJ did give a reason for excluding these documents, i.e., that they were
not certified pursuant to 8 C.F.R. § 287.6. Since the proceedings before the IJ and the
BIA – but several months before Huang’s appeal was briefed before this Court – we have
held that “8 C.F.R. § 287.6 is not an absolute rule of exclusion, and is not the exclusive
means of authenticating records before an immigration judge.” Gui Cun Liu v. Ashcroft,
372 F.3d 529, 533 (3d Cir. 2004). Unfortunately, Huang failed even to raise this
evidentiary issue on appeal, instead maintaining, erroneously, that the IJ did not mention
the documents or give any explanation for failing to consider them. Huang did not
mention at all the regulation on which the IJ explicitly relied. Accordingly, we deem the
issue waived.
For all the foregoing reasons, we will deny the petition for review.
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