Yan Yan Li v. Attorney General

IMG-159 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4533
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YAN YAN LI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A093-396-760)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 22, 2011
Before: BARRY, HARDIMAN AND COWEN, Circuit Judges
(Opinion filed June 23, 2011 )
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OPINION
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PER CURIAM
Yan Yan Li, a citizen of the People’s Republic of China, arrived in the United
States in 2006 as a visitor. In 2007, she applied for asylum, withholding, and protection
under the Convention Against Torture (“CAT”). The Government subsequently charged
her as removable for overstaying her visa, which she conceded.
In 2008, the Immigration Judge (“IJ”) made an adverse credibility determination
against Li, denied her relief, and ordered her removed to China. Li appealed the ruling to
the Board of Immigration Appeals (“BIA”). The BIA concluded that there was no reason
to disturb the adverse credibility finding or the IJ’s conclusion that Li did not meet her
burdens of proof and dismissed her appeal. Li presents a petition for review, arguing that
the BIA erred in upholding the adverse credibility finding. She also contends that she is
eligible for asylum, withholding, and CAT relief.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We consider questions of
law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n.2 (3d Cir. 2002). We review
factual findings, like an adverse credibility determination, for substantial evidence. See
Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). We evaluate whether a credibility
determination was “appropriately based on inconsistent statements, contradictory
evidences, and inherently improbable testimony . . . in view of the background evidence
of country conditions.” Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). We afford
an adverse credibility finding substantial deference, so long as the finding is supported by
sufficient, cogent reasons. See Butt, 429 F.3d at 434.
Li has one child in China, a son. She claimed to have undergone two forced
abortions before fleeing to the United States because she wanted to have more children.
She reported that the first incident happened in 1995 after she accidentally became
pregnant. Li testified that when her pregnancy was discovered she was dragged into a car
by enforcement agents and made to go to the hospital where the procedure was performed
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against her will. Li testified that she thought that someone in her work unit had informed
on her because she may have had nausea or could have been acting lazy at work. Li also
testified that she was fined 5,000 RMB, but she did not keep the receipt. She was then
fitted with an IUD and required to go for check-ups every six months.
Li testified that in 1997, she resigned from her government job and went into
business for herself, at which time her medical files, including her reproductive history,
were transferred from her work unit to her neighborhood committee. In 2005, Li became
pregnant again after she hired a private doctor to remove her IUD. Two months into her
pregnancy, Li testified that the neighborhood committee discovered the pregnancy and
forced her to undergo a second abortion. She also testified that she was fined 20,000
RMB, and produced a penalty decision letter attesting to that fact.
Based on recent State Department Reports, the IJ stated that he did not believe that
China utilized forced abortion with any degree of regularity and therefore would expect
from Li very good testimony or documentation in support of her claim. The IJ then
pointed to several aspects of Li’s testimony that undermined her credibility, and noted the
lack of corroborating evidence. The IJ concluded that Li could not meet her burdens of
proof. “[C]onsidering the totality of the circumstances and all relevant factors,”
including Li’s demeanor, “inconsistencies and omissions between her testimony and the
written statement, the implausibility of an event that underpins [her] persecution claim,
and her failure to adequately corroborate her claims,” the BIA found no clear error in the
IJ’s adverse credibility determination or conclusion that Li did not meet her burdens of
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proof. R. 7.
We conclude that the adverse credibility determination in this case was supported
by sufficient, cogent reasons. The IJ identified an inconsistency that served to elaborate
the account Li gave in her written application. Specifically, Li testified, but she did not
note in her application, that she was dragged into a car in 1995 when she was taken to
have a forced abortion. The IJ also pointed out that Li told the story of the discovery of
her pregnancy in 1995 differently on direct- and cross-examinations. On direct, Li stated
that she was ordered to go the family planning office where she worked, where she was
told that she had gotten pregnant and must undergo an abortion. On cross-examination,
Li reported that she was called into the family planning office and asked if she was
pregnant (at which point, she admitted that she was).
Furthermore, the IJ’s questioning of the vague nature and plausibility of Li’s
testimony about how the family planning committees found out about her pregnancies
finds support in the record. Li claims that she was forced to abort twice, each time when
she was two months pregnant. However, she could offer nothing more than speculation
about how family planning officials discovered her pregnancies. In support for the
adverse credibility finding, the IJ also noted Li’s calm demeanor that suggested that she
was reciting a story rather than recounting what had happened to her. An IJ’s personal
observations of an alien’s demeanor during testimony is afforded great deference. See
Dia v. Ashcroft, 353 F.3d 228, 252 n.23 (3d Cir. 2003) (en banc). On the whole, the IJ’s
adverse credibility finding is supported by the record.
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Also, given the areas of vague or inconsistent testimony, the IJ looked for
corroboration to determine if Li could meet her burdens of proof. The IJ drew on the
2007 State Department Report, which noted that forced abortions occurred in some cases,
to support his conclusion that forced abortions do not occur with regularity. Li did not
provide an affidavit from her husband as proof that it happened twice in her case. Her
husband could have corroborated at least some of what happened. Li stated that she
asked her husband to swear out an affidavit, but that he declined to do so on the grounds
that he was too busy to do so. As the IJ noted, busyness was a weak excuse when more
than a year passed between the filing of Li’s asylum application and her hearing.
Furthermore, the IJ and BIA considered that the penalty decision that Li produced
described some of Li’s social and medical history but did not reference any 1995 abortion
or fine. For these reasons, the IJ did not err in concluding that Li did not meet her
burdens of proof.
As the IJ’s rulings are supported by the record, the BIA did not err in dismissing
Li’s appeal.1 Accordingly, we will deny her petition for review.
1
In coming to its conclusion, the BIA, which relied on the factors quoted in its
decision, supra, did not improperly find facts despite mentioning that Li returned to
China after a trip to Singapore and Malaysia after she got pregnant for the second time
after she had her son.
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