Ling v. Attorney General of the United States

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-25-2005
Ling v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3420
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3420
________________
CHONG QIANG LING
a/k/a Cong Qiang Lin
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Chong Qiang Ling,
Petitioner
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A78-746-416)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 18, 2005
Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES
(Filed : August 25, 2005)
_______________________
OPINION
_______________________
PER CURIAM
I.
Chong Qiang Ling, a native and citizen of the Peoples Republic of China, entered
the United States in 2001. Ling conceded his removability for being present without
having been admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(I), and sought political
asylum based on China’s family planning policies. The Immigration Judge (“IJ”) found
Ling’s testimony not credible and denied asylum, statutory withholding of removal, and
relief under the Convention Against Torture. The Board of Immigration Appeals (“BIA”)
affirmed without opinion. Ling now petitions for review.
II.
Where, as in this case, the BIA defers to the IJ’s decision, the Court reviews the
IJ’s adverse credibility determination under the substantial evidence standard. Mulanga
v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003). We will uphold the IJ’s findings “to the
extent that they are supported by reasonable, substantial and probative evidence on the
record considered as a whole, and will reverse those findings only if there is evidence so
compelling that no reasonable factfinder could conclude as the [IJ] did.” Id. (quotations
omitted). Upon review of the record, we find that the IJ’s adverse credibility
determination is not supported by the record.
The IJ based his adverse credibility determination primarily on two discrepancies
in Ling’s claim. “Generally, minor inconsistencies and minor admissions that reveal
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nothing about an asylum applicant's fear for his safety are not an adequate basis for an
adverse credibility finding. The discrepancies must involve the heart of the asylum
claim.” Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004) (quotations and citations
omitted).
The IJ found most significant the inconsistency regarding the denial of a marriage
certificate. Administrative Record (“A.R.”) 169-70. Ling testified that he and his wife
were denied a marriage certificate in December 1997 because his wife was “one year
short” of the minimum 20 year age requirement, A.R. 217, 233, 258, even though his wife
was born in May 1977 and was therefore 20 years old in December 1997.1 We recognize
that Ling’s purported attempt to obtain a marriage certificate was the trigger for the
alleged forced abortion. However, the denial of the marriage certificate does not go to the
heart of Ling’s asylum claim. Ling was issued a marriage certificate the following
month. A.R. 362. Moreover, Ling did not leave China until more than three years later,
and sought asylum not because of the initial denial of a marriage certificate or because of
the abortion, but because after the birth of their first child, his wife was forced to use an
intrauterine device (“IUD”) and they were restricted from having another child for 10
1
As recognized by the IJ, if based on the Chinese method of age calculation whereby
a person is one year old on the date of her birth and becomes one year older upon the
passing of the Chinese New Year, Ling’s wife would have been considered 21 years old.
Furthermore, although the state department report indicates that some localities have set
the female minimum age requirement higher than 20, A.R. 273, Ling did not assert that
his locality had a higher age requirement, see A.R. 233.
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years. A.R. 227-28, 514-15.2
The IJ also relied on the discrepancy in the month that Ling and his wife returned
home after hiding from government officials. A.R. 168-69. Ling’s wife gave birth in
January 2000. A.R. 221. Upon becoming pregnant again in May 2000, Ling and his wife
left home and went into hiding with relatives. A.R. 222-24. Government officials went
to their home in June or July to notify Ling’s wife that she was required to obtain an IUD.
A.R. 224. Ling and his wife continued to hide out, but eventually returned home after
Ling’s wife had a miscarriage. A.R. 225. Upon their return, government officials
confronted Ling, forcing his wife to have an IUD inserted and imposing a 10-year
prohibition on having another child. A.R. 226-27, 514. Ling’s application states that they
returned in October 2000. A.R. 514. However, Ling testified that they returned in
December 2000, and in response to the IJ’s questioning associated the event with the end
of the year. A.R. 226. When confronted with this discrepancy, Ling stated that they had
returned in October and that he had confused the question with the timing of the
December 1997 abortion. A.R. 240. Although despite repeated questioning Ling did not
correct himself until confronted with the discrepancy, Ling provided a reasonable
explanation for the inconsistency. Moreover, even if the explanation was not reasonable,
2
Although we need not address the credibility of Ling’s allegations about the denial
of a marriage certificate and the abortion, we note that the IJ did not discuss the
corroborating letter from Ling’s wife, A.R. 336, and there is nothing in the record to
support the IJ’s finding that the abortion certificate was suspicious. See Berishaj, 378
F.3d at 323 (recognizing that adverse credibility determinations based on speculation or
conjecture are reversible).
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in the absence of any other inconsistencies involving the heart of the asylum claim, we
can not say that this discrepancy alone provides “reasonable, substantial and probative
evidence” to support the adverse credibility determination. Mulanga, supra; cf. Chen v.
Ashcroft, 376 F.3d 215, 224 (3d Cir. 2004) (relying on numerous inconsistencies,
including discrepancy in duration of alien’s time in hiding, in upholding adverse
credibility determination).
The IJ noted concerns with other aspects of Ling’s claim, such as the date of his
marriage, the household registration of his child, and the lack of additional entries in the
IUD checkup booklet. See A.R. 166-68. However, we need not address these issues
because the IJ concluded that they were tangential to the asylum claim and did not in and
of themselves undermine Ling’s credibility.
In sum, we find that the discrepancies relied on by the IJ do not provide an
adequate basis for an adverse credibility finding, and therefore are not supported by
substantial evidence. Accordingly, we will grant the petition for review and remand to
the BIA for further proceedings consistent with this opinion.
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