Xiu Li Yuan v. Gonzales

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1241
XIU LI YUAN a/k/a YONG XIU LIN,
Petitioner,
v.
ALBERTO GONZALES, Attorney General
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Haian Lin for petitioner.
Michael J. Sullivan, United States Attorney and Anita
Johnson, Assistant United States Attorney on brief for
respondent.
November 23, 2005
Per curiam. Petitioner Xiu Li Yuan, a citizen of the
People's Republic of China, unlawfully entered the United States on
July 7, 2000 and applied for asylum, withholding of removal, and
protection under the Convention Against Torture. Yuan sought
relief on the ground that the Chinese government forced her to have
an abortion. See 8 U.S.C. § 1101(a)(42)(A). An Immigration Judge
(IJ) denied Yuan's relief requests, and the Board of Immigration
Appeals (BIA) affirmed. Yuan has timely petitioned this court for
review of the final agency decision. We deny the petition.
At her removal hearing, Yuan testified as follows. She
resided in Fujian Province of China, and, in December 1994,
married Xin Ren Chen. The couple registered their marriage in
August 1995. At that time, Yuan was visibly pregnant. The
government official with whom they registered told Yuan that she
was pregnant "early" and, therefore, assessed a substantial fine.
In July 1995, "the local commune" damaged the couple's house
because they had not paid the fine. Five or six people came to the
house and told Yuan to pay, before damaging the doors and windows
with hammers. Chen was not at home when the damage occurred. Yuan
described the house as facing a roadway.
After Yuan's son was born, the government forced Yuan to
have an intrauterine device (IUD) inserted. But the IUD fell out,
and she became pregnant with the couple's second child. When the
government discovered this pregnancy, it immediately forced Yuan to
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have an abortion. Yuan's son was at her mother's house when the
abortion occurred, and Chen was at work. After the abortion, Yuan
called Chen, and he met her at her mother's house that afternoon.
Several days later, the government forced Yuan to have another IUD
inserted. Yuan substantiated her testimony with documentary
submissions, including a certificate of abortion dated March 1998
and a picture purporting to show the damage to the house.
Chen also testified at the removal hearing. Concerning
the damage to the house, Chen stated that the government imposed
the fine in January 1996 because of the early birth of their son.
The local authorities came to inform him of the fine and gave him
several days to pay. When he failed to do so, a "cadre" smashed
the windows and doors of his house. He said he was at home when
the attack occurred. In describing the house, Chen explained that
it had open space in front and abutted other inhabited homes in the
rear.
Regarding the abortion, Chen testified that, on the date
it was performed, he was hiding in another village. Yuan called
him from the hospital to tell him about the procedure. At that
time, their son was staying with his aunt. Chen met Yuan at their
home the following day and stayed with her for several days before
leaving.
At the conclusion of the removal hearing, the IJ rejected
Yuan's petitions for relief on the ground that her testimony was
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not credible. The BIA affirmed on this basis. Because the BIA
adopted the IJ's reasoning, we review the IJ's decision directly.
Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003).
Yuan challenges the IJ's adverse credibility finding
which was sufficient to warrant the denial of all forms of relief
that Yuan sought. We recently discussed the principles guiding our
review of challenges of this type:
[M]any asylum claims . . . depend on whether
the statements made by an alien in support of
the asylum application are accepted as
credible. When the agency's final decision
rests on the ground that the alien was not
credible, then, we see whether the
determination of non-credibility is
conclusive of [her] claim. If the adverse
credibility determination is supported by
substantial evidence -- that is, if we cannot
say a finding that the alien is credible is
compelled -- then the decision must be
affirmed. There may be times when, in
performing our judicial review function, we
are impaired because the agency does not
explain the adverse credibility finding.
That situation does not arise when the IJ
gives specific reasons for the determination,
which are in turn supported by substantial
evidence.
Chen v. Gonzales, 418 F.3d 110, 113 (1st Cir. 2005) (citations
omitted).
To support the adverse credibility finding, the IJ
identified material inconsistencies between Yuan's and Chen's
testimony. Yuan and Chen provided divergent accounts of the time
of day that the abortion took place, Chen's and their son's
location on that day, and the place and time that they met
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thereafter. Yuan and Chen also provided inconsistent stories about
the alleged damage to their house. They provided conflicting dates
of when the fine was imposed and when the "cadre" came to damage
the house. They also disagreed on whether Chen was at the house
when the damage occurred.1
The IJ also found that much of the key documentary
evidence was suspect. The IJ declined to credit the purported
picture of the damaged house because the building in the picture
differed materially from Chen's description. The IJ also declined
to credit Yuan's purported abortion certificate because a State
Department Report has stated that the Chinese government does not
typically issue such certificates for forced abortions, and that
such certificates are often forged by asylum applicants. See Qin
v. Gonzales, 360 F.3d 302, 307 (1st Cir. 2003) (approving the BIA's
reliance on State Department Report to discredit purported forced-
abortion certificate).
The IJ made several findings, all supported by the
record, that contributed to the overall conclusion that Yuan's
testimony was not credible. The agency record is not so one-sided
1
These inconsistencies pertain to the two incidents that most
strongly supported Yuan's asylum claim. This case is therefore
distinguishable from Ren v. Ashcroft, No. 04-1702, 2005 WL 1950805,
at *4 (1st Cir. Aug. 16, 2005), in which we rejected the BIA's
adverse credibility finding where the identified inconsistencies
concerned the witnesses' interpretation of peripheral events which
did not go "to the heart of the asylum claim."
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that the IJ was compelled to reach the opposite conclusion
regarding Yuan's credibility.
The petition for review is denied.
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