Xiao Feng Liu v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 13, 2007
No. 06-13735 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A78-908-088
XIAO FENG LIU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 13, 2007)
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Xiao Feng Liu, a citizen of China, seeks the review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
order finding him removable and denying his application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”) and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (“CAT”), INA § 241(b)(3), 8
U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.16(c).
On appeal Liu argues that the IJ did not make an explicit adverse credibility
finding, and asserts that the IJ merely noticed three inconsistencies that were not
supported by substantial evidence. Liu also argues that even if the IJ found him
incredible, the IJ still had to consider all the evidence he introduced regarding his
wife’s forced abortion and the family planning practices in China.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Because the BIA adopted the IJ’s decision,
without opinion, we review the IJ’s decisions as if it were the BIA’s. See id.
The IJ’s factual determinations are reviewed under the substantial evidence
test, and we should “affirm the [IJ's] decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Forgue v.
U. S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (internal quotations and
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citations omitted). “[A] denial of asylum may be reversed only if the evidence
presented by the applicant is so powerful that a reasonable factfinder would have to
conclude that the requisite fear of persecution exists. Mazariegos v. U.S. Att’y
Gen., 241 F.3d 1320, 1323-24 (11th Cir. 2001) (emphasis in original) (citing I.N.S.
v. Elias-Zacarias, 502 U.S. 478, 481 & n.1, 112 S. Ct. 812, 815 & n.1, 117 L. Ed. 2d
38 (1992)). The fact that evidence in the record may also support a conclusion
contrary to the administrative findings is not enough to justify a reversal. Silva v.
U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). Under "the ordinary
remand rule," Circuit courts may not make factual findings in the first instance.
Gonzales v. Thomas, __ U.S. __, 126 S. Ct. 1613, 1615, 164 L. Ed. 2d 358 (2006).
“Credibility determinations likewise are reviewed under the substantial
evidence test.” D-Muhumed v. U. S. Attorney Gen., 388 F.3d 814, 818 (11th Cir.
2004). “A credibility determination, like any fact finding, may not be overturned
unless the record compels it.” Forgue, 401 F.3d at 1287 (internal quotations and
citations omitted). Adverse credibility determinations must be made explicitly.
See Yang v. U.S. Attorney Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). The IJ
must make “clean determinations of credibility,” and when the IJ does not say that
he “believes” or “disbelieves” the asylum seeker, “the reviewing Court is left in the
dark.” Yang, 418 F.3d at 1201. If the IJ did not make an adverse credibility
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finding, we can assume any credibility determination was not dispositive and
address the petitioner’s eligibility for asylum. Id.
Regardless of whether or not the IJ made an adverse credibility
determination, he still had a duty to consider all the evidence Liu submitted. After
stating three instances where Liu’s testimony created doubt as to the veracity of his
claims, the IJ immediately concluded that Liu failed to meet his burden of showing
past persecution or a well-founded fear of future persecution. However, Liu
submitted approximately 64 pages of documents along with his asylum application.
Included in these documents was an abortion certificate issued to Liu’s wife for an
abortion that occurred on July 18, 2002. Liu also submitted a receipt for the fine
Liu testified to that was levied against him and his wife for having an illegitimate
child. Liu also submitted the 2004 country report, which noted that China’s first
formal law on family planning went into effect in 2002 and that Fujian province,
where Liu resided, was one of the few remaining provinces that still required birth
permits, which were used to enforce targets and quotas.
There is no record in the IJ’s decision that he considered any of the
documents Liu submitted to support his asylum claim. The BIA affirmed the IJ’s
decision, without opinion, and did not address the corroborating evidence Liu
submitted to the court in its decision. Accordingly we vacate and remand for the
BIA to consider Liu’s corroborating evidence in the first instance. As such, the
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additional arguments in petitioner’s and respondent’s briefs will not be addressed
here.
VACATED AND REMANDED.
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