Liu v. INS ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHANMIN LIU,
Petitioner,
v.
No. 96-1792
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A72-370-027)
Submitted: December 2, 1997
Decided: December 24, 1997
Before HALL, NIEMEYER, and LUTTIG, Circuit Judges.
_________________________________________________________________
Petition denied by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Frederic W. Schwartz, Jr., Washington, D.C., for Petitioner. Frank W.
Hunger, Assistant Attorney General, Philemina McNeill Jones, Assis-
tant Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Shanmin Liu petitions for review of a final order of the Board of
Immigration Appeals (Board), denying his application for asylum and
withholding of deportation. Because substantial evidence supports the
Board's decision, we deny the petition.
The Immigration and Nationality Act (Act) authorizes the Attorney
General, in her discretion, to confer asylum on any refugee. 8 U.S.C.
§ 1158(a) (1994). The Act defines a refugee as a person unwilling or
unable to return to his native country "because of persecution or a
well-founded fear of persecution on account of race, religion, nation-
ality, membership in a particular social group, or political opinion."
8 U.S.C. § 1101(a)(42)(A) (1994); see also M.A. v. INS, 899 F.2d
304, 307 (4th Cir. 1990) (in banc).
The "well-founded fear of persecution" standard contains both a
subjective and an objective component. An applicant may satisfy the
subjective element by presenting "``candid, credible, and sincere testi-
mony' demonstrating a genuine fear of persecution." Berroteran-
Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992) (quoting
Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987)). We
review the credibility findings of the Immigration Judge (IJ) and the
Board for substantial evidence. See Figeroa v. INS, 886 F.2d 76, 78
(4th Cir. 1989) (citing Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.
1987); Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir. 1984)).
Substantial evidence is evidence that a reasonable person might
accept as adequate to support a conclusion. See Turcios, 821 F.2d at
1398. A reviewing court gives credibility determinations substantial
deference provided they are supported by "specific, cogent reason[s]"
for the disbelief. Figeroa, 886 F.2d at 78 (quoting Turcios, 821 F.2d
at 1399).
The standard for withholding of deportation is more stringent than
that for granting asylum. See INS v. Cardoza-Fonseca, 480 U.S. 421,
431-32 (1987). To qualify for withholding of deportation, an appli-
cant must demonstrate a "clear probability of persecution." Id. at 430.
We accord the Board all possible deference. See Huaman-Cornelio v.
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Board of Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992).
The decision may be "reversed only if the evidence presented by [Liu]
was such that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed." INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992).
After conceding deportability for having entered the United States
without inspection in March 1990, Liu applied for asylum, withhold-
ing of deportation, and alternatively, voluntary departure based on his
fear of persecution if he returned to the People's Republic of China
(China). Evidence before the IJ established that Liu, a native and citi-
zen of China, is a married male. He testified that he favored the
Democracy Movement, a political party, in China because of his
opposition to corruption of the Chinese Communist Party. He claimed
that because of his pro-democracy views, and the actions he took in
manifestation of those views, Chinese authorities summoned him to
respond to charges of "counter revolutionary propaganda and incite-
ment." He stated that a friend advised him that he would be receiving
a summons. He testified that he has not seen his wife since he left his
home in December 1989, in order to avoid receiving the summons.
He did not report to authorities as directed by the summons because
he believed he would be arrested if he reported. At his deportation
hearing, he presented a document allegedly constituting the Chinese
summons. He also presented newspaper articles describing the sen-
tences political dissidents in China have received. He argued that
because these persons, who were engaged in activities similar to his
own, were punished, he has a well founded basis to fear persecution.
He also argued that he faces possible sterilization in China because
he already has one child, a male child. He alleged that while his wife
was pregnant after the male child, he received notices to report for a
sterilization operation, which were issued to him by his employer. He
presented copies of these alleged notices.
The IJ determined that Liu did not present a credible claim of a fear
of persecution in China. On appeal, the Board also did not find Liu
credible and held that Liu failed to demonstrate past persecution or
the requisite fear of future persecution for asylum or withholding of
deportation. Thus, the Board dismissed Liu's appeal. In his petition
3
for review, Liu challenges the IJ's and Board's credibility determina-
tions.
We find that the IJ and the Board supported their credibility deter-
minations with specific, cogent reasons for disbelieving Liu. See
Figeroa, 886 F.2d at 78. Liu presented a Chinese document which
allegedly constitutes a Chinese summons to bolster his claim that he
was engaged in political activities for which he is being sought by the
Chinese authorities. Liu also presented two documents which purport
to impose penalties based on his violation of national family planning
policies; the documents were allegedly issued by his employer. The
IJ and the Board were not convinced of the validity of the summons
or the fine notification documents. The Board noted that, although the
summons was submitted to the Forensic Document Laboratory of the
Immigration and Naturalization Service for evaluation, that institution
could not provide conclusive information as to its validity. The Board
also cited a report, however, which states that documentation from
China, particularly from the Fuzhou area from which Liu comes, is
marked by widespread fabrication and fraud. The same report also
states that documents imposing penalties for family planning viola-
tions are only issued by family planning units and documents which
were allegedly issued by other sources are fraudulent.
The Board and the IJ also noted that Liu arrived in the United
States in 1990 but did not apply for asylum until 1992 because his
counsel advised him that his case was not ready because he did not
have the necessary documentation. The Board reasoned that it was
likely that Liu obtained the above three documents, on which he bases
his claims, in order to apply for asylum, raising the concern that these
documents were fabricated to provide evidence in support of Liu's
application for asylum.
Other adverse credibility findings made by the IJ and the Board
concerned Liu's claim that he left his wife while she was six months
pregnant and was unsuccessful in establishing any communication
with her until June 1992, when he allegedly learned that her preg-
nancy had resulted in a miscarriage. The IJ concluded that it was
implausible and inconceivable that Liu would not have been success-
ful in finding some means to communicate with his wife to find out
about the birth of their expected baby. Liu testified that he did not
4
send any support of any kind to his wife and child until after July
1992. Since then, he testified, he has found friends who have traveled
to China who have taken funds to his wife on a regular basis. He has
done this twice a year since July 1992. Liu did not explain why he
couldn't do this before July 1992. The Board also reasoned that Liu's
representation that he did not have contact with his wife for years fur-
ther undermined his credibility because the individual who made con-
tact with Liu's wife on his behalf, a person who lived in the United
States, offered no statement or testimony to bolster Liu's account of
events.
Lastly, the Board noted that other testimony that undermined Liu's
credibility concerned the fact that he applied for a Chinese passport
in 1993 and had the intention of returning there to visit his family, but
then he testified that he no longer had the intention to travel to China
because things had changed. He did not offer a cogent explanation of
what had changed; he only stated that the Chinese authorities were
still investigating his case.
As the Board stated, even assuming the family planning related
notices are authentic, Liu is not entitled to relief on that basis because
severe government sanctions in response to an alien's violations of his
country's population control policy does not necessarily constitute
persecution or create a well-founded fear of persecution. See Chen
Zhou Chai v. Carroll, 48 F.3d 1331, 1335-36 (4th Cir. 1995). The
asylum applicant must demonstrate that any government action taken
against him or her was for a reason other than the mere enforcement
of its population control policies. Id. at 1336. Liu did not prove, nor
does the record disclose, that the family planning policies were selec-
tively enforced against him because of his race, religion, nationality,
membership in a particular social group, or political opinion. Id.As Liu has not established entitlement to asylum, he cannot meet
the higher standard for withholding of deportation. We accordingly
deny the petition for review. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
PETITION DENIED
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