Huang, An Na v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2074
A N N A H UANG and
Z HOU W U D ONG,
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. A96-171-594 & A78-433-179
____________
A RGUED F EBRUARY 15, 2008—D ECIDED M AY 8, 2008
____________
Before F LAUM, W OOD , and E VANS, Circuit Judges.
F LAUM, Circuit Judge. An Na Huang and Zhou Wu Dong
are both natives and citizens of China. They applied for
asylum, withholding of removal, and relief under the
Convention against Torture, alleging that they had been
persecuted and tortured on account of Huang’s pregnancy
prior to having obtained a legal marriage, and the
couple’s refusal to pay the accompanying fine. The Immi-
gration Judge found that petitioners’ asylum claims were
untimely, and that the remainder of their claims failed due
2 No. 07-2074
to lack of credibility and evidence. We agree, and therefore
deny the petition for review.
I. Background
Before coming to the United States, Huang lived in
Lian Jiang County, Fujian Province, China. She worked as
a self-employed seamstress. On January 1, 1996, at age 19,
she married Dong in a traditional Chinese ceremony. The
couple did not register their marriage and obtain a license1
because she was underage at the time.2 After Huang and
Dong married, they lived in his parents’ home in the
village of Guantou Town. Huang testified that she re-
mained registered with her parents’ household, and
would occasionally visit them in the nearby village of
Dong Xi.
In December 1995, prior to their traditional marriage,
Huang claims that she learned that she was pregnant
after a visit to a private doctor. A few months after their
marriage, on March 5, 1996, at approximately 8:00 AM,
Huang testified that Family Planning officials arrived at
her husband’s parents’ home. They told her that they
1
Huang and Dong testified that they attempted to register
their marriage in May of 1998 but were turned down because
she married underage. On October 8, 2002, the couple legally
married in Brooklyn, New York, under the laws of the United
States.
2
Under the National Marriage Law, the minimum age for
marriage in China is 20 for females and 22 for males. B UREAU OF
D EMOCRACY , H UMAN R IGHTS AND L ABOR , U.S. D EP ’T OF S TATE ,
C HINA : P ROFILE OF A SYLUM C LAIMS AND C OUNTRY C ONDITIONS 22
(June 2004) [hereinafter C OUNTRY R EPORT ].
No. 07-2074 3
knew she was culturally wedded to her husband and
that she was eligible for a routine medical exam. Alone at
the time, Huang submits that she was forcefully taken to
the Lian Jiang County Hospital where her pregnancy
was discovered. She says that she was then pushed down
on an operating table, made unconscious, and subjected to
an abortion procedure. Afterwards, she requested a
certificate from the hospital stating that she had gone
through this procedure and that she should be allowed
to rest for seven days. Huang testified that the entire
process—from the officials arriving at the home to her
discharge from the clinic—took two-and-a-half hours.
Two days later, Huang claims to have received a hand-
delivered notice of a fine from the Guantou Town Birth
Control Office demanding that she pay 3000 yuan
renminbi (“RMB”) for violating the Fujian Province Birth
Control Policy. This fine—equivalent to about 370 dol-
lars—was about as much as the couple’s annual income.
They decided to forgo paying the fine, and three days
later, a Public Security Bureau messenger delivered a
summons to the home in Dong’s name. While it does not
state it, we assume that the summons was issued for
failure to pay the fine. Instead of reporting to the Public
Security Bureau as requested, Dong went into hiding in
Fuzhou City. He returned on March 25, 1996, after hearing
that his mother had fallen ill. Thirty minutes after his
arrival, at 8:00 AM, two officials from the Public Security
Bureau and one from the Birth Control Office came to the
house and arrested him. Dong submits that he was taken
to the Lian Jiang County Jail where he remained for a
year. During his detention, he claims that he was tortured,
specifically by having electricity applied to his genitals.
Dong was released on March 27, 1997. Huang asserts
4 No. 07-2074
that she attempted to pay the fine earlier while Dong was
in jail, but authorities told her that he was to remain
detained for a full year. The receipt from the payment to
the Birth Control Office indicates that Dong was the payor,
and that the reason for collection of payment was “early
birth without marriage.”
After Dong was released from prison, the couple con-
tinued to live in his parents’ home until June 2000. At that
time, Dong paid $50,000 to a member of the Snakehead
gang to be smuggled into the United States. Huang fol-
lowed suit and also paid $50,000 to a Snakehead to get
smuggled into the United States in February 2002. She
claims that her precise date of entry was February 14,
2002. The couple has two children, both of whom were
born in the United States. The first was born on January 2,
2003, and the second was born on March 29, 2004.
On August 6, 2002, the Immigration and Naturalization
Service (“INS”) issued Dong a Notice to Appear, charging
him with removability pursuant to 8 U.S.C. § 1227(a)(1)(A).
Huang filed an application for asylum with the Depart-
ment of Homeland Security (“DHS”) on February 13, 2003.3
Later, on March 24, 2003, she too was charged with
removability. Both Huang and Dong conceded that they
were removable. Their cases were consolidated, and a
merits hearing on Huang’s application for asylum was
held on September 29, 2005. The Immigration Judge (“IJ”)
issued a decision denying all relief and ordering both
Huang and Dong removed to China. The Board of Immi-
gration Appeals (“BIA”) agreed with the IJ, and Huang
and Dong now present their petition for review.
3
Dong also filed an application for asylum in 2003.
No. 07-2074 5
II. Discussion
Huang and Dong argue that the IJ erred in denying
their claims involving asylum, withholding of removal,
and the Convention against Torture (“CAT”). We analyze
each issue in turn.
A
The Immigration and Nationality Act (“INA”) gives the
Attorney General discretion to grant asylum to an alien
who qualifies as a refugee, which refers to an alien who is
unwilling or unable to return to her home country
“[b]ecause of persecution or a well-founded fear of perse-
cution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). But there are limits to this protection. The
INA requires that asylum applications be filed within one
year of an alien’s arrival in the United States. 8 U.S.C. §
1158(a)(2)(B). The alien must prove that she has timely filed
her application by clear and convincing evidence. Id. The
only exceptions to the deadline are changed circumstances
materially affecting eligibility for asylum, or extraordinary
circumstances relating to the delay in filing the application.
Id. at § 1158(a)(2)(D).
In this case, the IJ found that each of the petitioners’
asylum applications were untimely. Dong’s only explana-
tion for filing three years after his arrival was that he
did not know that asylum was available. On appeal,
petitioners do not appear to argue that this is a valid
justification for making an exception to the one-year time
bar. Instead, they seem to implicitly rely on 8 U.S.C.
§ 1158(b)(3)(A), which would allow Dong to derivatively
obtain asylum through Huang. This of course assumes that
6 No. 07-2074
Huang proved by clear and convincing evidence that
she timely filed her asylum application. We agree with the
IJ that she did not succeed in doing so. Huang insists
that she arrived in the U.S. on February 14, 2002—just one
day under the deadline—and she knew that this was the
date because she was told it was Valentine’s Day. A
romantic notion no doubt, but in spite of the fact that
she has now been living in the U.S. for a number of years
since her arrival, she has not mustered any evidence
evincing that she arrived on or around this date. There
is no documentation, valid or counterfeit, to indicate when
she may have arrived. Indeed, when asked about the
passport she used to enter the country, she stated that
she gave it back to the smugglers. Huang also claims that
she used her own passport to leave China, but gave that to
the smugglers too, thereby leaving doubt as to when
precisely she left China. In lieu of documentary evidence,
she could have provided anecdotal evidence from rela-
tives or acquaintances about her date of arrival or depar-
ture. She failed to do this as well. Thus we are left with
nothing more than her own testimony that she knew
she arrived on February 14, 2002 because she was told it
was Valentine’s Day. This in and of itself—particularly
given the amount of time she has now spent in the
U.S.—does not add up to clear and convincing evidence
regarding her date of arrival.
Since petitioners cannot pass this statutory bar, they
argue in the alternative that the IJ’s ruling on asylum
raises a “question of law,” and so we are not precluded
from having jurisdiction to hear their claim. Indeed, under
the INA, “[n]o court shall have jurisdiction to review
any determination of the Attorney General” regarding
timeliness of applications for asylum. 8 U.S.C. § 1158(a)(3).
No. 07-2074 7
It is true that the Real ID Act amended the judicial re-
view provisions of the INA to allow review of constitu-
tional claims and questions of law. See, e.g., Ramos v.
Gonzales, 414 F.3d 800, 801-02 (7th Cir. 2005). Nevertheless,
we have squarely held that an IJ’s determination that an
asylum application is untimely is a factual determination,
and does not raise a question of law. See Vasile v. Gonzales,
417 F.3d 766, 768 (7th Cir. 2005) (“Perhaps Vasile would
like to shoehorn his [untimely asylum] claim into the
‘question of law’ category, but it simply does not fit
there.”).
There is yet another threshold issue that keeps this
Court from assessing the merits of petitioners’ asylum
claim: they did not exhaust their administrative remedies.
Specifically, Huang and Dong did not raise the time bar
issue to the BIA. In their first appeal, they simply made
the broad argument that the IJ’s decision was “contrary
to the law and facts of the case.” Petitioners argue that this
generalized statement is enough to have raised the time
bar issue before the BIA. We disagree. Their Notice of
Appeal and brief below do not raise any arguments
regarding the time bar. The concept is not even mentioned.
Petitioners jumped straight into the merits of their claim
without raising the threshold issues. Indeed, the BIA
explicitly noted in its order that “the respondents have not
specifically challenged the denial of asylum on the 1-year
ground.” Hence, because petitioners failed to exhaust
their administrative remedies, we cannot reach the merits
of their asylum claim. See Capic v. Ashcroft, 355 F.3d 1075,
1087 (7th Cir. 2004).
8 No. 07-2074
B
Apart from their asylum claims, Huang and Dong assert
that removal should be withheld and that sending them
back to China would violate our commitments under the
CAT. Withholding of removal prevents the Attorney
General from deporting an alien to a country where her
life or freedom would be threatened on account of race,
religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1231(b)(3). To
establish eligibility for withholding of removal here,
petitioners must demonstrate a clear probability that they
will face persecution if they are removed to China. See
Pavlyk v. Gonzales, 469 F.3d 1082, 1087 (7th Cir. 2006). Past
persecution “may imply a future threat and so require the
agency to demonstrate that conditions have improved, . . .
[but] the focus remains on what is likely to happen fol-
lowing an alien’s return home.” Kobugabe v. Gonzales, 440
F.3d 900, 901 (7th Cir. 2006). With respect to the CAT,
an alien must establish by objective evidence that it is
more likely than not that he or she would be tortured 4
if returned to the proposed country of removal. 8 C.F.R.
§ 1208.16(c)(2). We review the IJ’s factual findings deferen-
tially, and “inquire only whether the Board’s decision
4
The regulations define torture as “any act by which severe
pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as . . . punishing him
or her for an act he or she or a third person has committed or
is suspected of having committed or intimidating or coercing
him or her or a third person . . . .” 8 C.F.R. § 1208.18(a)(1). This
torture must be “inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person
acting in an official capacity.” Id.No. 07-2074 9
has the support of ‘reasonable, substantial, and probative
evidence on the record considered as a whole.’ ” Toptchev
v. INS, 295 F.3d 714, 720 (7th Cir. 2002) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). An IJ’s adverse
credibility determination is upheld so long as it is sup-
ported by “specific, cogent reasons” and bears a “legitimate
nexus to the finding.” Shtaro v. Gonzales, 435 F.3d 711, 715
(7th Cir. 2006).
We are satisfied that there was a substantial basis for the
IJ to conclude that the petitioners were not credible. For
instance, Huang and Dong were not fully able to ex-
plain why they would each pay $50,000 to get smuggled
into the U.S., but why they could not afford (or find
resources to pay) the $370 fine. Some support for this
inconsistency can be found in Huang’s testimony, where
she stated that greater economic opportunity was part of
her motivation for coming to the U.S. But there are
other, more telling inconsistencies as well. The abortion
certificate that Huang presented as evidence for her
claim, for example, is generally only given to individuals
who undergo a voluntary abortion, so that they may give
it to their employer to get leave to rest. C OUNTRY R EPORT
at 22-23. Huang did not claim to have a voluntary abortion,
and, perhaps more significantly, she was self-employed.
The fine associated with this procedure stated that it
was for “early birth without marriage,” but there was no
birth. In general, petitioners have not presented an ade-
quate explanation for why they would be required to
pay a social compensation fee when no child was born.
Also, it was unclear why Dong would be summoned to
the Public Security Bureau when Huang was the one
who became pregnant and who was specifically named
in the notice of the fine. With respect to Dong’s time in
10 No. 07-2074
prison, it was curious that he omitted any claims of torture
in his initial asylum application, and offered as his reason
that he was not asked about it. And the detention notice
that he claims he kept with him in jail for the entire year
is, according to evidence in the record, never given to
the individual who is detained. The timing of certain
events also raised suspicion with respect to the veracity
of petitioners’ story. Huang’s pregnancy and the couple’s
cultural marriage were discovered by Family Planning
officials—in a different village—rather swiftly. This was
in spite of the fact that Huang saw a private doctor, not
a government doctor. Additionally, while it may be en-
tirely plausible, it is a little difficult to imagine that Dong
would be arrested only thirty minutes after having re-
turned to town from ten days of hiding.
There are problems with petitioners’ story independent
of the narrative. A DHS forensic documents examiner
found that the very documents Huang and Dong used to
lend credence to their claims were not authentic or genu-
ine. Specifically, petitioners submitted five documents as
evidence: the birth control surgical certificate, the birth
control violation fee, a notice to Huang, the Lianjiang
Public Security Bureau detention notice, and the police
summons. The first three documents could not be au-
thenticated, which means that there were no indicia of
legitimate production. As the forensic examiner put it,
“[a]nybody anywhere could have produced these docu-
ments.” The last two documents were found to be not
genuine.5 Moreover, the forensic examiner believed that
5
The phrase “not genuine” is a term of art used by the forensic
examiner and is distinct from the concept of a “counterfeit”
(continued...)
No. 07-2074 11
they had been artificially aged. Huang and Dong did not
present any testimony—or even an argument—to rebut
this evidence. Since these documents formed the key-
stone of their story, and since petitioners emphasized that
the documents were personally obtained, it was appropri-
ate for the IJ to tack their lack of authenticity onto his
adverse credibility determination. See Matter of O-D-, 21
I&N Dec. 1079, 1084 (BIA 1998). In summary, because
petitioners’ were not found to be credible, they cannot
meet the burden of proof on their withholding of re-
moval and CAT claims by showing past instances of
persecution and/or torture. With respect to what is likely
to occur when petitioners return to China, particularly
since they had two children in this country, U.S. Depart-
ment of State Reports suggest that families with children
abroad are generally assessed social compensation fees.
C OUNTRY R EPORT at 24 Again, Huang and Dong have not
presented any evidence to contradict this view.
5
(...continued)
document. If we imagine a spectrum of authenticity, a counter-
feit document would be at one end of the spectrum. In that
case, the examiner would have an exact copy of the document
from the same location (e.g., Lianjiang jail), and could compare
the proffered document to see whether it matches. Or, the
examiner would have substantial information that the docu-
ment is standardized everywhere, regardless of location, and
so any deviation from this standard form would be deemed
counterfeit. The designation “not genuine,” on the other hand,
applies to documents where there is no exact specimen from
the same location that can be used for comparison. Instead,
there are standardized forms used throughout the country, and
these are used for comparison, but there is not crystal clear
evidence that the standardized forms are used in all locations.
12 No. 07-2074
While we therefore agree with the IJ’s conclusions
regarding withholding of removal and CAT, we pause to
note one methodological flaw in the opinion below. The IJ
found that one additional reason Huang was not to be
believed was that she declared that her entire forced
abortion incident—from the time she was picked up by
officials to the time she was discharged—took two-and-a-
half hours. While the record is not clear on this point,
we can infer about thirty minutes associated with travel
time. That leaves about two hours. There is nothing in the
record to indicate precisely what type of abortion proce-
dure Huang allegedly went through. The IJ does not cite
to any medical evidence whatsoever to support his incre-
dulity at the notion that a patient could be given a preg-
nancy test, anesthetized, subjected to the procedure, and
then sent home all in a matter of one-and-a-half hours. This
appears to be a questionable assumption, particularly
since our research indicates that a dilation and curettage
procedure,6 for instance, can be performed in fifteen
minutes. See Richard S. Guido, M.D. & Dale W. Stovall,
M.D., Patient Information: Dilation and Curettage (D & C)
(William J. Mann, Jr., M.D., ed., 2006), www.uptodate.com.
Hence, we urge caution when drawing adverse inferences
of this nature in medically sensitive cases.
6
This procedure involves expanding the entrance of a woman’s
uterus so that a thin instrument can be used to scrape away the
lining of the uterus.
No. 07-2074 13
III. Conclusion
For the foregoing reasons, the petition for review is
D ENIED.
USCA-02-C-0072—5-8-08