Jiao Jin Li v. Holder

REVISED September 11, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 08-60966 FILED
Summary Calendar August 18, 2009
Charles R. Fulbruge III
Clerk
JIAO JIN LI
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A99 429 052
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Jiao Jin Li, a citizen and native of the People’s Republic of China, petitions
this court for review of the Board of Immigration Appeals’ order affirming the
immigration judge’s order denying Li’s requests for asylum, withholding of
removal, and withholding of removal under the Convention Against Torture. As
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-60966
the BIA affirmed the findings made by the IJ and implicitly adopted the ruling
of the IJ, we review both the ruling of the IJ and the ruling of the BIA.1
We first turn to Li’s due process arguments. Li argues that the IJ violated
her due process right to a full and fair hearing by not making a separate
credibility determination concerning her testimony and the testimony of her
witness as the testimony related to when Li entered the United States. She
contends that the IJ further violated her due process right to a full and fair
hearing by excluding Chinese-language documentary evidence she submitted
pursuant to 8 C.F.R. § 1003.33 because the documents did not have the required
translator’s certificate.
The IJ specifically found that Li did not supply documentary evidence to
support her testimony and that her overall credibility had “been destroyed” due
to the inconsistent statements she made and the false evidence she submitted.
The IJ further found that the testimony of Li’s witness was insufficient to prove
Li’s date of entry by clear and convincing evidence due to Li’s overall lack of
credibility. Despite Li’s attempt to color these findings as due process
insufficiencies, her claim is a challenge to the IJ’s factual determination that Li
had not proven by clear and convincing evidence that her asylum application
was timely filed; a claim that does not rise to the level of a due process violation.2
The reasoning behind the IJ’s ruling that Li had not proven that her asylum
application was filed within one year of her entry into the United States was
sufficient as it demonstrated that the IJ had considered the issues raised and
had “‘heard and thought and not merely reacted.’”3
1
See Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
2
See Toscano-Gil v. Trominski, 210 F.3d 470, 474 (5th Cir. 2000).
3
Yahkpua v. INS, 770 F.2d 1317, 1321 (5th Cir. 1985) (quoting
Osuchukwu v. INS, 744 F.2d 1136, 1143 (5th Cir. 1984)).
2
No. 08-60966
To the extent that Li challenges the IJ’s exclusion of documentary evidence
pursuant to § 1003.33, this court has jurisdiction only to consider the due process
component of her claim because Li failed to raise the issue before the BIA.4
Nevertheless, the IJ’s exclusion of the documentary evidence in question did not
in any way violate Li’s due process rights. § 1003.33 proscribes the introduction
of foreign language documents without accompanying English language
translations and translator certifications.5 Li did not provide translations for
her Chinese-language documents, in violation of § 1003.33. Thus, the IJ’s
decision to exclude these document was justified and did not result in a
proceeding that was “fundamentally unfair” and in violation of due process.6
The record shows that the IJ allowed Li to present testimony, make
arguments, and submit documentary evidence. In his ruling, the IJ considered
and addressed the documentary evidence, but he found that it was insufficient
to establish that Li should be granted relief. Accordingly, to the extent that Li
argues that the IJ violated her due process right to a full and fair hearing by not
giving sufficient consideration to her documentary evidence, Li has not shown
that any deficiencies rise to the level of a due process violation.7
Li’s other arguments follow her due process claims in failure. Li argues
that she met her burden of proving that she is eligible for asylum by showing
4
See Falek v. Gonzales, 475 F.3d 285, 291 (5th Cir. 2007) (explaining that
an alien “must exhaust before the BIA all claims that he raises in the federal
courts, that is, unless they are constitutional”) (emphasis added); Soadjede v.
Gonzales, 324 F.3d 830, 831 (5th Cir. 2003); see also Gonzalez-Reyes v. Holder,
313 Fed. App’x 690, 694 (2009) (unpublished) (“[defendant’s] constitutional claim
. . . is not subject to the exhaustion requirement”); Wang v. Ashcroft, 260 F.3d
448, 452-53 (5th Cir. 2001).
5
8 C.F.R. § 1003.336
See id.; Lin v. Gonzales, 152 Fed. App’x 475, 481 (6th Cir. 2005)
(unpublished) (finding similar due process claims without merit).
7
See Toscano-Gil, 210 F.3d at 474.
3
No. 08-60966
that she suffered past persecution or had a well founded fear of future
persecution on account of an enumerated ground. The IJ and BIA, however,
rejected Li’s request for asylum based upon the factual finding that Li had not
proven by clear and convincing evidence that she filed her asylum application
within one year of entering the United States, making her statutorily ineligible
for asylum pursuant to 8 U.S.C. § 1158(a)(2)(B). We do not have jurisdiction to
consider challenges to a determination by the BIA that an asylum application
was not timely filed unless the challenges are based upon constitutional claims
or questions of law.8 Li does not raise any legal or constitutional challenges to
the determination that her asylum application was untimely beyond her
meritless due process claims. Accordingly, we do not have jurisdiction to
consider Li’s argument that she is entitled to asylum, and this portion of Li’s
petition for review is dismissed.9
Li argues that she established a clear probability of persecution on account
of an enumerated ground, thereby entitling her to withholding of removal. In
connection with her challenge to the denial of withholding of removal, Li does
not challenge the BIA’s and IJ’s adverse credibility determination. Instead, she
argues that she was either previously forcibly sterilized or would be subject to
forcible sterilization if removed to China because she has two or more children.
The IJ and BIA found that Li’s testimony was not credible in its entirety,
and Li does not challenge this determination. Furthermore, given the numerous
inconsistencies in Li’s testimony and statements and the fake evidence that Li
submitted, any challenge to the adverse credibility determination would be
futile.10 The only evidence that Li submitted showing that she had been forcibly
sterilized beyond her own discredited testimony consisted of medical records
8
Nakimbugwe v. Gonzales, 475 F.3d 281, 284 & n.1 (5th Cir. 2007).
9
See id.10
See Efe v. Ashcroft, 293 F.3d 899, 905 (5th Cir. 2002).
4
No. 08-60966
showing that she had bilateral tubal occlusion consistent with bilateral tubal
ligation and a scar that was allegedly the result of surgical sterilization.
Assuming arguendo that the medical evidence establishes that Li had a bilateral
tubal ligation, that evidence does not establish that this procedure occurred in
China or that the procedure was performed forcibly. To the extent that Li
argues that she is alternatively entitled to withholding of removal because she
would be subject to forcible sterilization if removed to China, Li produced no
evidence showing that she remained fertile and was capable of being sterilized;
instead, she produced evidence showing that she was already sterilized. As Li
produced no credible evidence concerning where and how any sterilization
procedure was performed and no credible evidence that she was fertile and
therefore possibly subject to future forcible sterilization, the IJ and the BIA had
no basis upon which to grant withholding of removal. Accordingly, the
determination that Li had not shown that she was eligible for withholding of
removal is supported by substantial evidence.11
Li does not challenge the denial of relief under the Convention against
Torture, and has thus abandoned the issue.12
PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.
11
See Chun v. INS, 40 F.3d 76, 78-79 (5th Cir. 1994).
12
See Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir.1986).
5