Hong Zhang CAO v. Alberto Gonzales ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1524
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Hong Zhang Cao, *
*
Petitioner, *
* Petition for Review of an Order
v. * of the Board of Immigration Appeals.
*
Alberto R. Gonzales, United States *
Attorney General, *
*
Respondent. *
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Submitted: December 16, 2005
Filed: March 24, 2006 (Corrected: 3/30/06)
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Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
Hong Zhang Cao (ACao@) seeks review of a final order of removal by the
Board of Immigration Appeals (ABIA@). The BIA summarily affirmed, without
separate opinion, the decision of an immigration judge (AIJ@) denying Cao=s
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (ACAT@). We affirm the judgment of the BIA.
I.
Cao, a native and citizen of China, entered the United States on or about
April 5, 2000, under the Visa Waiver pilot program. Cao requested asylum,
withholding of removal, and protection under CAT. Cao is married to a Chinese
national and has two children. Cao claims past persecution and a fear of future
persecution because of a forced abortion and forced sterilization performed on his
wife.
The facts outlined in this section are as described by Cao. In Section II, we
discuss some discrepancies between Cao’s testimony and documentary evidence in
this matter. Cao testified that he had a customary wedding ceremony with his wife
on December 4, 1987. However, he stated that his marriage was not registered
until later because he was not legally permitted to marry his wife in 1987. Cao
stated that a woman must be twenty-two years old before she could be legally
married and she was only sixteen years old at the time of the customary wedding.
According to Cao=s testimony, his first child was born in Changle City.
After the child was born, the Village Women=s Committee came to his house to
have an intrauterine device (AIUD@) inserted into his wife. The insertion was
initially delayed because his wife was experiencing heavy bleeding. However, the
Women=s Committee returned two months later and the IUD was inserted.
At some point later, Cao=s wife experienced heavy bleeding while at work.
She went to the bathroom and realized that the IUD had come out. Cao and his
wife did not tell anyone about the IUD coming out because they feared the
government would believe they had removed it. Soon after this incident, in March
1992, Cao=s wife became pregnant again.
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On July 13, 1992, Cao registered his marriage with his wife. Despite Cao=s
statement that he could not legally marry his wife until she was twenty-two, he was
able to register his marriage while she was still twenty-one years old. At the time
Cao brought his wife to have their marriage registered, she was five-months
pregnant. The pregnancy was in clear violation of China=s family planning
policies, but the government official registering the marriage either did not notice
Cao=s wife=s pregnancy or chose to ignore it.
In August 1992, the Women=s Committee allegedly forced Cao=s wife to
have an abortion. Cao produced an abortion certificate to support his testimony on
this point. The Women=s Committee also told Cao=s wife that they were going to
sterilize her. Cao=s family moved to the Guanzhou Province to evade the local
authorities= attempts to sterilize Cao=s wife. However, the village leaders of their
previous community were able to track Cao and his family. Cao=s family received
a letter from their old village leaders requesting that they return for a pregnancy
test. The letter stated that Cao=s wife was to undergo a pregnancy test every three
months or be sterilized. Cao=s wife agreed to submit to regular pregnancy tests.
In October 1992, Cao and his wife returned to Changle City for the
scheduled pregnancy test. They discovered that Cao=s wife was pregnant again.
Cao and his wife wanted to raise the child and did not want an abortion. As a
result, they fled to Ba Yun (another village in Guanzhou) to have the child. The
pregnancy ended with the birth of Cao=s second child.
In September 1998, Cao=s father-in-law was dying of cancer in Changle
City. Cao and his wife decided to go to see her father. After they arrived, Cao=s
father-in-law passed away. Two days after his death, a policeman and a woman
arrived at the family house in Changle City and took Cao=s wife away to be
sterilized. Cao argued with the authorities and was taken into custody for resisting
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arrest. After he was released from custody, he discovered that his wife had been
sterilized.
Soon after the sterilization, Cao attempted to leave China. He was arrested
in Taiwan for not possessing a passport or visa. Authorities sent Cao back to
China where he served a prison term of one year and four months.
When Cao was released from prison, he could not return to Changle City
because his family home had been destroyed by the Chinese government. Instead,
Cao continued in his efforts to leave China. Cao went to Macau, obtained a tourist
passport under an alias, and left China for the United States. On his I-94 form, Cao
stated that he was a citizen of Portugal, not a citizen of China. He testified that he
lied about his identity to gain admission to the United States because he had been
denied a passport under his real identity. Cao believes that if he returns to China,
he will be imprisoned for explaining Awhat=s going on inside China.@
On July 18, 2003, an immigration hearing was held to evaluate Cao=s claims.
The IJ denied all of Cao=s claims because the IJ found Cao=s testimony to be not
credible.
II.
When the BIA affirms the decision of the IJ without opinion, as in the
present case, we treat the decision of the IJ as the final agency decision.
Mompongo v. Gonzales, 406 F.3d 512, 513 (8th Cir. 2005). We will uphold an IJ=s
determination denying asylum unless Athe evidence . . . presented was so
compelling that no reasonable factfinder could fail to find the requisite fear of
persecution.@ INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). The Elias-
Zacarias standard was subsequently codified such that a BIA finding of fact is
Aconclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.@ 8 U.S.C. '1252(b)(4)(B). AWe review the BIA=s legal
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determinations de novo but recognize that its interpretation of the [Immigration
and Nationality Act] is entitled to deference.@ Nyirenda v. INS, 279 F.3d 620, 623
(8th Cir. 2002). We defer to an IJ=s determination of the petitioner=s credibility if
the IJ had a Aspecific, cogent reason for disbelief.@ Ghasemimehr v. INS, 7 F.3d
1389, 1391 (8th Cir. 1993).
III.
To be granted asylum, a petitioner must prove that he or she is unwilling or
unable to return to his or her home country because of past persecution or he or she
has a well-founded fear of future persecution based on race, religion, nationality,
membership in a particular social group, or political opinion. 8 U.S.C. '
1101(a)(42)(A). In a case where forced sterilization and/or abortion is the basis of
a male petitioner=s claim, we allow him to stand in the shoes of his wife in claiming
persecution. See In re C-Y-Z-, 21 I.&N. Dec. 915, 917-18 (BIA 1997).
In this case, the IJ denied Cao=s claims of past and fear of future persecution
because the IJ found Cao=s testimony not credible. The IJ outlined five reasons for
its adverse credibility finding. We address each of those reasons below.
The IJ=s first two reasons for questioning Cao=s credibility concern the
details of Cao=s marriage. First, the IJ noted a material discrepancy relating to the
date of Cao=s customary marriage. Second, the IJ was concerned about the
inconsistency in Cao=s testimony about the legality of his marriage. Cao testified
that his customary marriage ceremony was on December 4, 1987. However, an
affidavit from his wife stated that the marriage was on February 10, 1988. Further,
Cao testified that he could not legally marry his wife until she was twenty-two
years old. However, when they registered their marriage, she was only twenty-one
years old.
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The mere existence of inconsistencies in the record does not preclude a
petitioner=s claim of persecution. See Sheikh v. Gonzales, 427 F.3d 1077, 1080
(8th Cir. 2005) (noting that minor inconsistencies which do not go to the core of
the claim of persecution will not support an adverse credibility finding). Since
nothing in the record denies that Cao is married and the date of his marriage
registration is not material to this matter, the discrepancies about the date of the
marriage alone cannot support an adverse credibility finding.
Third, the IJ found Cao=s testimony about the registration itself not credible.
When Cao and his wife went to register the marriage, his wife was five months
pregnant. The IJ found it implausible that the government official registering the
marriage did not notice or object to Cao=s wife being pregnant. However, the IJ=s
conclusion on this issue is based only on speculation. Speculation and conjecture
are insufficient for an IJ to render an adverse credibility finding. See Kaur v.
Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004).
There is nothing in the record to indicate that Cao=s wife was visibly
pregnant at that time. Further, it is certainly reasonable that a woman can be five-
months pregnant and disguise that fact to someone during a very brief ceremony.
Also, Cao noted that the wedding administrator is from a different part of the
government than those charged with enforcing family planning regulations.
Consequently, the official may have felt no obligation to discover or report an
illegal pregnancy. Therefore, we do not find this part of the IJ=s adverse credibility
finding to be persuasive.
Fourth, the IJ noted that Cao=s affidavit does not mention that she underwent
a forced abortion and sterilization. The IJ found this omission to be significant in
its seeming inconsistency with Cao=s testimony. An omission alone is normally
insufficient for an adverse credibility finding, but if it goes to the Aheart of the
asylum claim,@ it does raise a credibility issue. Kondakova v. Ashcroft, 383 F.3d
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792, 796 (8th Cir. 2004) (quoting Chebchoub v. INS, 257 F.3d 1038, 1043 (9th
Cir. 2001)). Because the forced abortion and sterilization is central to Cao=s
asylum claim, this omission from his wife=s affidavit is notable.
Fifth, the IJ relied upon inconsistencies between Cao=s statements and the
Asylum Profile from the State Department of the Fuijan Province. In the Asylum
Profile, there were no reports of forced sterilizations and abortions in the region.
Also, the report stated that abortion certificates, like the one produced by Cao,
were only issued for voluntary abortions. These inconsistencies are of a
substantive nature and go to the key issues in Cao=s asylum claim. Cao has offered
no concrete evidence in support of his testimony regarding the forced enforcement
of China=s family planning policy in the Fuijan Province. Without such evidence,
there was reason for the IJ to question the credibility of Cao=s testimony about the
issue. See Chen v. INS, 195 F.3d 198, 204 (4th Cir. 1999) (noting that Aan
applicant must proffer some additional evidence that his fears of [the Chinese
family planning] policy are objectively reasonable@).
While some of the reasons offered by the IJ for an adverse credibility finding
would be legally insufficient standing alone, there exists substantial evidence to
support the finding. The inconsistencies and omissions in Cao=s testimony and
documentary evidence combined with the discrepancies between the State
Department reports and Cao=s testimony are sufficient to support the IJ=s credibility
finding.
IV.
Because Cao has failed to meet the lower standard for asylum, he necessarily
fails to meet the higher standard for withholding of removal. Turay v. Ashcroft,
405 F.3d 663, 667 (8th Cir. 2005). The finding denying asylum for Cao does not
necessarily mean we should deny his claims under CAT. However, the adverse
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credibility finding as to the underlying facts of Cao=s asylum claim applies to his
CAT claim as well.
V.
For the foregoing reasons, we deny the petition for relief.
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