Ai Dong Jiang v. Attorney General ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-14-2007
Jiang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4229
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-4229
ALI DONG JIANG,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
__________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A97-660-222)
Submitted under Third Circuit LAR 34.1(a)
December 14, 2006
Before: SMITH and ROTH, Circuit Judges, YOHN*, District Judge
(Filed March 14, 2007 )
OPINION
*Honorable William H. Yohn, Jr., Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
ROTH, Circuit Judge:
Ai Dong Jiang petitions for review of the order of the Board of Immigration
Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of his application for asylum,
withholding of removal, and protection pursuant to the United Nations Convention Against
Torture (CAT). We will deny the petition.
I. Factual and Procedural History
Jiang is a native and citizen of China. The Department of Homeland Security (DHS)
detained Jiang at Miami International Airport on October 2, 2004, when he tried to enter the
United States without appropriate entry documents. He was given an initial interview upon
arrival and a credible fear interview the next day. On October 6, he was served with a Notice
to Appear for a removal proceeding, and charged as an arriving alien who failed to present
or possess valid entry documentation. The two DHS interviews, Jiang’s testimony
accompanied by affidavit, a letter from Jiang’s wife, and an alleged abortion certificate from
a Chinese hospital provide the entirety of the factual support for Jiang’s claims.
DHS conducted an initial interview with Jiang upon his attempted October 2, entry.
Jiang stated he had left China because birth control officials were trying to arrest him. He
claimed his wife was forced to have an abortion and that he had filed a lawsuit against the
birth control officials. He also claimed he was arrested by the birth control officials and
detained for two days. He asserted that he escaped and crossed the border into Thailand.
The next day DHS conducted a credible fear interview. Jiang stated he left China
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because his wife became pregnant for the second time in 2002. He claimed that family
planning officials discovered the pregnancy and demanded an exorbitant payment. When
Jiang told the officials he could not pay, he said they arrested and held him in the family
planning offices for two to three days. Jiang claims that during his detention his wife was
taken to the hospital for a forced abortion and held in the hospital for over ten days. Jiang
stated he escaped from the family planning office and was told by his family about the
abortion, but that he never saw his wife. He then claims he went to the government to file
a complaint against the family planning office. He stated that he failed in his complaint and
later managed to escape from family planning officials when they tried to arrest him.
In his application for asylum, Jiang submitted a sworn affidavit. He claimed that after
he ran away from his detention at the family planning office, he went to the local government
to complain and was ignored. Jiang also asserted that he had attempted to leave China
illegally in 1991 and was arrested, fined, and beaten by police. He claimed that he now fears
being “fined, jailed, and tortured” if returned to China because he came to the U.S. with the
help of a smuggler.
Jiang testified at his removal hearing on April 23, 2004. On direct examination Jiang
claimed he was released after being detained by family planning officials. He also testified
that upon being released he had seen his wife, who showed him the abortion certificate.
During the same testimony Jiang made several assertions inconsistent with his prior
statements. He again asserted that he had escaped from detention, but that he had not filed
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a complaint with the government, that instead he had filed a lawsuit, and that he had made
an oral complaint to government officials. Jiang also offered evidence of his wife’s abortion
through documentation alleged to be an abortion certificate. This was accompanied with a
letter from his wife which vouched for the authenticity of the abortion certificate and claimed
the hospital was trying to blackmail her. The government contacted the hospital to
investigate the certificate’s authenticity (the patient’s name was redacted). The hospital
responded that the document appeared to be a forgery because the hospital’s official stamp
was different and no doctor at the hospital matched the name of the physician on the
certificate.
The IJ denied Jiang’s applications. The IJ found Jiang lacking in credibility and
denied his application of asylum and withholding of removal. The IJ accepted Jiang’s story
that he had been punished in 1991 for trying to leave China. However, the IJ found that
Jiang failed to carry his burden of proof by showing it was more likely than not he would be
tortured upon return and denied his application for protection under the CAT. The BIA
adopted the IJ’s reasoning, affirmed his decision in a per curiam ruling, and dismissed the
appeal.
II. Jurisdiction and Standard of Review
We have jurisdiction of Jiang’s appeal pursuant to § 242(a) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1252(a) to review timely filed petitions for review of final
orders of the BIA.
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Where, as here, the BIA affirms and adopts the decision of an Immigration Judge, we
review the IJ’s decision as if it were the decision of the Board. Dia v. Ashcroft, 353 F.3d
228, 245 (3d Cir. 2003). We review the findings of fact and of credibility under the
substantial evidence standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The
decision must be affirmed “unless the evidence not only supports a contrary conclusion, but
compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (quoting Abdille v.
Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001). In general, “minor inconsistencies do not
provide an adequate basis for an adverse credibility finding.” Fiadjoe v. Ashcroft, 411 F.3d
135, 153 (3d Cir. 2004). Furthermore, “the discrepancies must involve the ‘heart of the
asylum claim.’” Gao, 299 F.3d at 272.
III. Analysis
A. Application for Asylum
An asylum applicant bears the burden of proving either past persecution or a well-
founded fear of future persecution. 8 C.F.R. § 208.13(b).1 To establish eligibility for asylum
on the basis of past persecution an applicant must show (1) an incident, or incidents, that rise
to the level of persecution; (2) that is on account of one of the statutorily protected grounds
and (3) is committed either by the government or forces the government is either unwilling
1
The standard for withholding deportation is stricter than that for asylum, thus “a
petitioner unable to satisfy the asylum standard fails, a fortiori, to satisfy the former.”
Mediouni v. INS, 314 F.3d 24, 26 (1 st Cir. 2002). Because this Court finds that Jiang did
not satisfy the standard for asylum, we need not address the issue of withholding deportation.
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or unable to control. Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003). An asylum
applicant who demonstrates past persecution is entitled to the presumption of a well founded
fear of future persecution. 8 C.F.R. § 208.13(b)(1). Absent this presumption, the applicant
for asylum has a two-prong burden - he must demonstrate both (1) subjective and (2) objective
fear of persecution. Gao, 299 F.3d at 272. The applicant must first demonstrate his
subjective fear by “showing that [he] has a genuine fear” of persecution, and then he must
demonstrate his objective fear with evidence “that a reasonable person in [his] circumstances
would fear persecution if returned to [his] native country.” Id. (citing Elnager v. INS, 930
F.2d 784, 786 (9th Cir. 1991)).
An individual who has been or who has a well-founded fear of being “forced to abort
a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or
refusal to undergo such a procedure or for other resistance to a coercive population control
program, shall be deemed to have been persecuted on account of political opinion.” 8 U.S.C.
§ 1101(a)(42). This basis for “refugee” eligibility has been extended by decision to include
the spouse of an individual who meets the forced abortion, sterilization, and population
control provision of 8 U.S.C. § 1101(a)(42). In re C-Y-Z, 21 I & N Dec. 915, 918 (BIA 1997).
We will deny the petition for review because substantial evidence supports the
determination that (1) Jiang was not credible and (2) he failed to establish past persecution
or a well founded fear of future persecution.
We agree with the findings of the IJ, as adopted by the BIA, that Jiang was not
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credible. His statements and testimony as set out above contain inconsistencies which, taken
together, call his credibility into question. Moreover, the purported abortion certificate, the
letter from Jiang’s wife, and the overseas investigation also support a finding of adverse
credibility. Taken in isolation each of the inconsistencies in Jiang’s story might be
considered “minor.” Fiadjoe, 411 F.3d at 153. In this instance, Jiang’s application for
asylum is based entirely on the claim of his wife’s forced abortion. Inconsistences in evidence
or admissions about the circumstances of the abortion involve the “heart of the asylum claim.”
Gao, 299 F.3d at 272. Based on the record, the conclusions of the IJ were supported by
substantial evidence and must be upheld.
B. Withholding of removal under the Convention Against Torture.
An alien may obtain withholding of removal pursuant to the CAT if he shows it is
“more likely than not that he or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2); Celaj v. Attorney General, 471 F.3d 483, 491 (3d Cir.
2006). The standard for relief under the Convention “has no subjective component, but
instead requires the alien to establish, by objective evidence, that he is entitled to relief.”
Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005) (quoting Sevoian v. Ashcroft, 290 F.3d
166, 174-75 (3d. Cir. 2002). The objective evidence to be considered in evaluating a CAT
claim includes “[e]vidence of past torture inflicted upon the applicant;” “[e]vidence of gross,
flagrant or mass violations of human rights within the country of removal;” and “[o]ther
relevant information regarding conditions in the country of removal.” Id. at 134.
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The petitioner has failed to carry his burden of showing it is more likely than not he
would be tortured if removed. Celaj, 471 F.3d at 491. The IJ found Jiang credible on the
point that he may have been punished in 1991 by the Chinese government. The IJ’s finding
of credibility concerning Jiang’s past punishment neither established that torture occurred nor
proved the likelihood of future torture. 2 Jiang makes only vague references to Chinese law
and the State Department’s Human Rights Report on China as evidence that he will be
imprisoned in a labor camp for one year and that torture occurs frequently in these camps.
These generalizations are insufficient for a showing that Jiang will more likely than not be
subject to torture. Auguste, 395 F.3d at 154-55; see also Zubeda, 333 F.3d at 478 (“reports
of generalized brutality within a country” are not enough to qualify for relief under the CAT).
IV. Conclusion
For the reasons set forth above, we conclude that substantial evidence supports the BIA
and IJ's decisions to deny relief and we will accordingly deny the petition for review.
2
Evidence of past torture, as opposed to past punishment, is a factor in determining
whether torture is more likely to occur. See Lavira v. Attorney General of the U.S., — F.3d
—, 2007 WL 570257, *7 (3d Cir. 2007) (citing 8 C.F.R. § 1208.16(c)(3)) (emphasis added).
8