Wang, Yan Song v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1780
YAN SONG WANG, ZHU LIN and TAO WANG,
Petitioners,
v.
PETER D. KEISLER, Acting Attorney General of the
United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A70-897-525, A78-674-813 & A78-674-814
____________
ARGUED JANUARY 9, 2007—DECIDED SEPTEMBER 20, 2007
____________
Before BAUER, RIPPLE, and EVANS, Circuit Judges.
BAUER, Circuit Judge. Yan Song Wang (“Wang”) and
Zhu Lin (“Lin”) are natives and citizens of China and
husband and wife. They were born in China’s Fujian
province and lived there until leaving for the United
States. Along with their eldest son, Tao Wang (“Tao), who
is also a Chinese native, they seek review of the final
decision of the Board of Immigration Appeals that denied
their petitions for asylum, withholding of removal, and
relief under the Convention Against Torture. Because
the BIA’s decision was supported by substantial evidence,
we deny their petition for review.
2 No. 05-1780
I. Background
Wang entered the United States without a valid entry
document on February 3, 1990 and applied for asylum,
withholding of removal, and relief under the CAT on April
14, 1993. Lin and Tao entered the United States without
valid entry documents on December 25, 1999. Lin filed an
application for asylum on December 14, 2000, claiming
that she was forced against her will to undergo an abor-
tion while in China and that she wanted to stay in the
United States in order to raise her family.
After the former Immigration and Naturalization Ser-
vice initiated removal proceedings against petitioners,
the Immigration Judge (“IJ”) held a consolidated hearing
on the merits of their asylum applications. The record at
the hearing consisted almost entirely of Wang’s and Lin’s
testimony and documentation. They testified to getting
married first in a customary ceremony on January 8, 1987,
followed by a legal ceremony on June 9, 1989. They
testified that a few months before their legal marriage
ceremony, Lin gave birth to Tao. At that time, Lin had
not yet reached the legal age for marriage. As a conse-
quence, she did not have the requisite legal permit and
could not go to a hospital to give birth. They testified
further that when the local population control authorities
learned of Tao’s birth, they were fined 2,500 RMB. They
also testified that when Lin became pregnant again in
September 1989, local population control authorities
forced her to undergo an abortion. At the time of the
hearing, in May 2001, Lin was pregnant again. She
testified that if she was returned to China after the
birth of her second child, she would be forced to undergo
an involuntary sterilization.
In an oral decision, the IJ denied petitioners’ asylum
applications and ordered them removed to China. The IJ
explained that he found that their testimony was not
No. 05-1780 3
credible and concluded that they had failed to establish
past persecution or a well-founded fear of future persecu-
tion. The IJ offered numerous reasons for his adverse
credibility determinations. First, he explained that when
Wang initially filed his asylum application in 1993, he
claimed that Lin had undergone “sterilization,” as opposed
to abortion. While Wang corrected this error later in his
interview with the asylum office and during his testimony
during the hearing, the IJ found that Wang had not
explained his reasons for this error adequately.
The IJ then explained his disbelief of petitioners’ testi-
mony concerning the involuntary abortion. Lin had
testified that about a month after Tao was born, they
returned to live with Wang’s family in Yingu. After the
population control authorities learned of Tao’s birth, they
notified Lin that she had to undergo a “female examination
of birth matters” in April. According to Lin, she was
required to present herself for these examinations four
times a year. After giving birth to Tao, Lin did not go to
any of these examinations. She testified that when she
had failed to go to an examination, the local population
control authorities caught her and forced her to go to the
family planning office in June of 1989. Lin testified that,
against her will, the family planning officials inserted an
IUD (an intrauterine device) into her, which she later had
removed by a private physician. She testified that she
subsequently became pregnant. The IJ found this testi-
mony incredible, however, because she had not hidden
this pregnancy or sought to avoid the authorities. Lin
had testified that she had moved to her own parents’
home when she was pregnant with Tao, but she did not
testify that she had returned there when she became
pregnant the second time. The IJ further reasoned that
by removing the IUD and becoming pregnant, Lin was
aware of the fact that her pregnancy may not be consid-
ered authorized, and yet she remained at home with her
4 No. 05-1780
husband without any apparent thought of enforcement
by the authorities.
The IJ also did not credit Lin’s testimony that she had
told the authorities that she was pregnant when they
came to her in-laws’ home in December of 1989. Because
Lin was trying to hide her pregnancy, the IJ reasoned, she
could have denied that she was pregnant and told the
authorities that she would submit to a physical exam. And
even if she had told the authorities of her pregnancy, they
did not force her to have an abortion immediately. Ac-
cording to Lin’s testimony, she was to report for an
abortion three days later. The IJ noted, however, that
Wang and Lin did nothing: they remained at home until
December 26.
Even assuming that Lin was pregnant, that she told the
authorities that she was pregnant, and that she was told
to go for an abortion, the IJ found incredible Lin’s and
Wang’s testimony about their subsequent actions. Lin
had testified that she and Wang planned to flee the
country on December 26, the day that she was to report
for the abortion, at noon. She said that she had not
expected the authorities to arrive on December 26. Lin
testified that at 9:00 in the morning on December 26,
personnel from the family planning office arrived at her
home to collect her for the abortion. Wang was not at
home at that time. According to their testimony, he was
working in the fields. Lin also stated that she could hear
Wang outside of the surgery room, fighting with the
local family planning personnel.
In rejecting this testimony, the IJ explained that the
timing of the events did not make sense. Lin had admitted
that she was taken to a district hospital, which was more
than an hour away. Wang had testified that when he
learned that Lin had been taken for an abortion, he went
to the hospital, arriving before the abortion had taken
No. 05-1780 5
place, and fought with the family planning officials.
Moreover, despite Wang’s altercation with the local family
planning personnel, he was not arrested. Instead, he
was allowed to remain in the hospital, to see Lin, and to
return home. Wang testified that he decided to flee China
after the altercation, telling Lin of this decision the next
day, December 27, and that he was able to arrange to
leave China in a period of a few days. Wang testified that
he left China on January 1, 1990 because he feared getting
arrested, tortured, beaten, and jailed. The IJ did not
believe that Wang made the decision to leave, informed
Lin of this decision, made the arrangements to leave, and
fled China in such short order.
Additionally, Wang did not disclose the alleged fight in
the hospital on his original asylum application or to his
asylum officer when speaking about this case. The IJ
explained that this omission was a significant adverse
factor on his credibility. Wang also had applied for three
separate applications to return to China. In these applica-
tions, he explained that the reason for his return was
related to his mother’s illness; at the hearing, he testified
that he desired to return to China because of his father’s
illness.
Finding petitioners’ testimony not credible, the IJ
considered the evidence offered by petitioners to corrobo-
rate their story but again found it unbelievable. They
offered an unauthenticated “certificate” that purported
to be from the hospital in which Lin had the abortion.
Wang had not offered this certificate when he originally
filed for asylum and did not bring it with him to his
interview with the INS in 1997. The IJ also found the
certificate suspect based on Lin’s testimony. The certifi-
cate appeared to have been issued on December 26, 1989,
the day that Lin claimed she had the abortion, and was
supposedly given to her when she was released from the
hospital on December 30, 1989.
6 No. 05-1780
The IJ also considered the U.S. Department of State’s
2000 Country Reports on Human Rights Practices for
China. According to this report, the Chinese Central
Government’s family planning policy formally prohibits
the use of force to compel persons to submit to abortion.
Another report complied by the Research Directorate of
the Immigration and Refugee Board in Canada, dated
March 14, 2000, examined the specific conditions in the
Fuzhou county area, which was near where petitioners
lived. This report stated that there is less effective enforce-
ment of the “one child” policy in that area and that “forced
abortion and forced sterilization are reportedly not toler-
ated. . . .” The IJ found that these reports did not sup-
port Lin’s testimony that she was taken into custody and
forced to have an abortion.
Petitioners filed a timely appeal with the BIA, which
found that the IJ had failed to address petitioners’ claims
of a well-founded fear of future persecution if they re-
turned to China. The BIA remanded the matter to the IJ,
who conducted three additional hearings on petitioners’
claim of a well-founded fear of future persecution. The
IJ then issued a second decision, noting that petitioners
had testified in support of their claimed fear of returning
to China and their belief that family planning personnel
would force either Wang or Lin to undergo sterilization.
Having considered their testimony, the IJ determined
that petitioners had failed to establish a reasonable
probability of sterilization if they were forced to return to
China. He explained that he had not believed their earlier
testimony and that they had not offered anything to show
that their testimony should be found more credible con-
cerning the issue of future sterilization. The IJ relied again
on a State Department report, this one dated April 14,
1998, which concluded that couples who have violated
the “one child policy rule” do not face sterilization on
their return to China. They instead face fines if they are
No. 05-1780 7
from urban areas, such as Shanghai. This conclusion also
was reached in the report from the Research Directorate,
Immigration and Refugee Board, Ottawa, Canada. Recog-
nizing that petitioners are not from urban areas, the IJ
noted the State Department Profile indicated that the
one child policy was not implemented or is more lenient
in rural areas than in urban areas, a fact conceded by
petitioners’ attorney. The IJ rejected evidence offered by
petitioners from their relatives in China, which purported
to be a certificate from the Yang Yu Village People’s
Committee. According to the certificate, because petition-
ers are residing in the United States and have two chil-
dren, they must be sterilized. The IJ gave little weight
to this certificate because petitioners had failed to ex-
plain how it was obtained and it was an unauthenticated,
self-serving report that they had obtained for the pur-
pose of their asylum applications in 2003. The IJ then
denied petitioners’ applications for asylum, withholding
of removal, and relief under the Convention Against
Torture.
Petitioners filed a timely appeal with the BIA, which
adopted and affirmed the IJ’s decision. The BIA explained
that the shortcomings and inconsistences cited by the IJ
were present in the record, that such shortcomings and
inconsistencies provided specific and cogent reasons to
conclude that their claim was not credible, and that
petitioners had offered no adequate explanation for these
discrepancies and shortcomings on appeal or before the
IJ. As to specific findings of the IJ, the BIA found that
the IJ had noted correctly that although Wang claimed
that he feared that he would be harmed by Chinese
officials because of the altercation in the hospital in
December of 1989, he had sought to return to China from
the United States on three occasions. Like the IJ, the BIA
reasoned that if Wang truly possessed a well-founded fear,
it is not likely that he would have sought to return to
8 No. 05-1780
China. The BIA further explained that the IJ had found
correctly that Wang had failed to disclose the fight in his
initial asylum application and that he had claimed incor-
rectly that his wife had been sterilized without mention-
ing an abortion. Finally and most significantly, the BIA
concluded, Wang and Lin decided to remain at home after
they were told by the family planning officials that Lin
would undergo an abortion on December 26, 1989. The BIA
considered this situation to be a “very significant con-
tradiction” in their case. Accordingly, the BIA dismissed
petitioners’ appeal. Now present before this Court is
petitioners’ timely petition for review of the BIA’s decision.
II. Analysis
Because the BIA adopted and affirmed the IJ’s decision
to deny petitioners’ applications for asylum, we review the
IJ’s decision as supplemented by any discussion in the
BIA opinion. Mema v. Gonzales, 474 F.3d 412, 416 (7th
Cir. 2007). Petitioners challenge the decisions of the IJ
and BIA, arguing that they had proved that they were
entitled to asylum based on past persecution and that they
had demonstrated a well-founded fear of future persecu-
tion based on China’s coercive birth control policies.
Our review of a decision denying asylum is deferential.
See Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006).
“[W]e require only that the decision be supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” Id. (internal citations and
quotation omitted). We will reverse an agency’s decision
only if the record compels a contrary result. Youkhana
v. Gonzales, 460 F.3d 927, 931 (7th Cir. 2006) (citation
omitted). We may not reverse simply because we would
have decided the case differently. Margos v. Gonzales, 443
F.3d 593, 597 (7th Cir. 2006) (citations omitted).
No. 05-1780 9
In denying petitioners’ applications for asylum, the IJ
explained that they had failed to establish their burden of
proof and persuasion because he found the testimony of
Wang and Lin implausible and incredible. He stated that
they had failed to present authenticated or genuine
evidence that an abortion had occurred in China or, if
such an abortion did occur, that it was involuntary. The
adverse credibility determinations of an IJ “must be made
with reference to specific, cogent reasons that bear a
legitimate nexus to the finding.” Adepke v. Gonzales, 480
F.3d 525, 530 (7th Cir. 2007). And we give substantial
deference to these determinations. Korniejew v. Ashcroft,
371 F.3d 377, 382 (7th Cir. 2004). “We will not overturn
adverse credibility determinations simply because the
evidence might support an alternate finding.” Kllokoqi v.
Gonzales, 439 F.3d 336, 341 (7th Cir. 2005). “Credibility
determinations are questions of fact and should be over-
turned under extraordinary circumstances.” Shmyhelskyy
v. Gonzales, 477 F.3d 474, 479 (7th Cir. 2007). Such
extraordinary circumstances are absent from the present
petition.
In this case, the IJ’s adverse credibility determinations
are adequately supported by the record. The IJ and BIA
relied on the inconsistencies in Wang’s testimony, includ-
ing his statements about his reason for seeking asylum on
his initial asylum application and at the immigration
hearing. Wang initially based his asylum application on
the claim that Lin had been sterilized, making no mention
of the forced abortion. This Court has acknowledged that
“initial asylum applications should not always be consid-
ered completely reliable, particularly when filled out
without the assistance of counsel.” Chen v. Gonzales, 420
F.3d 707, 710 (7th Cir. 2005) (citing Pop v. INS, 270 F.3d
527, 532 (7th Cir. 2001)). At the same time, this Court has
recognized that “[s]ignificant discrepancies among differ-
ent versions of an alien’s statement are generally a
10 No. 05-1780
permissible basis for an adverse credibility decision.”
Chen, 420 F.3d at 710 (citing Capric v. Ashcroft, 355 F.3d
1075, 1089-90 (7th Cir. 2004)). Wang testified that he had
used a service center in New York to prepare his first
asylum application and denied telling the center’s per-
sonnel that his wife was forcibly sterilized. Such testi-
mony, which goes to the heart of petitioners’ claim for
asylum, does not explain his failure to include informa-
tion about the abortion in his initial application.
Also significant to the adverse credibility determina-
tion was Wang’s failure to mention the fight that occurred
at the hospital when Lin was about to have the abortion.
According to his testimony at the hearing, Wang feared
that he would be arrested following the fight, which
spurred his decision to leave China. It is reasonable to
expect that an asylum applicant would describe such an
invasive event when asked to describe mistreatment. See
Capric, 355 F.3d at 1090. A fight with family planning
officials outside the room in which his wife was undergo-
ing a forced abortion would be highly relevant to Wang’s
claim that he had suffered past persecution or has a well-
founded fear of future persecution in China. We cannot
say that the IJ incorrectly relied on this omission in its
adverse credibility determination. See, e.g., Korniejew, 371
F.3d at 384 (upholding adverse credibility determination
where petitioner had failed to mention in earlier proceed-
ings that her husband had been arrested and killed for
political reasons).
Most significant to the BIA’s decision adopting and
affirming the IJ’s decision was petitioners’ failure to leave
or to go into hiding after being informed by the local family
planning officials of the specific day that Lin was to
undergo an abortion. We agree that such inaction under-
mines petitioners’ claims of past persecution. Petitioners
asserted that they were preparing to flee: Lin had testified
that they planned to leave December 26 at noon. Petition-
No. 05-1780 11
ers also had testified, however, that they were fined for
having Tao, Lin was forced to have an IUD implanted, and
Lin was told that she was to undergo an abortion on
December 26. After such actions and with such an ex-
plicit warning, it simply does not make sense that peti-
tioners would wait to flee the area until the day of the
scheduled abortion.
Additionally, the IJ’s disbelief as to Wang’s testimony
about his decision to flee China and the length of time that
it took him to arrange to leave was based on more than
simply his own assumption as to how long it should take
Chinese residents to arrange passage to the United States.
Rather, it was the short lapse of time between Wang’s
decision to flee, his informing Lin of this decision, and then
his actual departure that the IJ found questionable. Cf.
Chen, 420 F.3d at 709 (rejecting as conjectural and specu-
lative the IJ’s adverse credibility finding based on peti-
tioner’s testimony that it took him nine days to make
arrangements and to pay $1,000 to be smuggled from
China to the United States). In any event, even if this
additional rationale for the IJ’s adverse credibility find-
ing was based on nothing more than the IJ’s personal
speculation or conjecture, the other bases identified by
the IJ were sufficient to support the adverse credibility
determination.
The documentary evidence offered by petitioners did
not resolve the inconsistencies in their testimony or
overcome the adverse credibility determination. The
unauthenticated certificate that purported to be from the
hospital in which Lin had the forced abortion does not
explain the contradictions in Wang’s testimony. To the
extent that it corroborates petitioners’ testimony, it only
shows that an abortion occurred. It does not show that
the abortion was involuntary. See, e.g., Huang v. Gonzales,
453 F.3d 942, 947 (7th Cir. 2006) (recognizing that such
a certificate suggests that the asylum applicant under-
12 No. 05-1780
went a “voluntary” abortion). Under our deferential re-
view of an IJ’s credibility determinations, we find that the
substantial evidence in this case does not compel reversal.
Adverse credibility determinations aside, we likewise
find that substantial evidence supports the IJ’s conclu-
sion that petitioners do not have an objectively reason-
able fear of future persecution. Because they failed to
offer credible evidence of past persecution, petitioners
needed to demonstrate that they genuinely fear persecu-
tion if they return to China and that fear is objectively
reasonable. See Boci v. Gonzales, 473 F.3d 762, 767 (7th
Cir. 2007). In support of their asserted well-founded
fear of future persecution—forcible sterilization—peti-
tioners offered an unauthenticated certificate from their
village that indicated that because petitioners reside in
the United States and because they have two children,
they must be sterilized. The IJ gave little weight to this
certificate because it was unauthenticated, see 8 C.F.R.
§ 287.6, and obtained for purposes of the hearing, con-
cluding that petitioners’ fear was not objectively reason-
able. Petitioners’ certificate also did not establish that
they could not relocate to another area of China in order
to avoid punishment by their village’s family planning
officials. See 8 C.F.R. § 1208.13(b)(2)(ii) (“An applicant
does not have a well-founded fear of future persecution if
the applicant could avoid persecution by relocating to
another part of applicant’s country of nationality . . . if
under all the circumstances it would be reasonable.”);
Matter of R-, 20 I & N Dec. 621, 625-27, 1992 WL 386814(BIA 1992). The IJ instead relied on the April 14, 1998
State Department report, which concluded that couples
who have violated the one child policy face fines, rather
than sterilization, on their return to China. He also
relied on the report from the Research Directorate,
Immigration and Refugee Board, Ottawa, Canada, which
stated that the one child policy is not implemented or
is enforced more leniently in rural areas.
No. 05-1780 13
The IJ’s conclusion is supported by two recent BIA
decisions: Matter of J- H- S-, 24 I&N Dec. 196 (BIA 2007)
and Matter of J- W- S-, 24 I&N Dec. 185 (BIA 2007).1 In
Matter of J- W- S-, the BIA acknowledged that a July 1999
Q&A for Changle City Family-Planning Information
Handbook, which the Second Circuit referenced in Shou
Yung Guo v. Gonzales, states that sterilization is manda-
tory following the birth of a second child. 24 I&N at 192
n.7. The BIA also examined the Changle City Family
Planning Policy Leading Team, which states that “sub-
jects” who give “out-of-plan birth . . . must be imposed
with sterilization operation.” 24 I&N Dec. at 192. In that
particular case, however, the BIA determined that the
asylum applicant had failed to demonstrate a well-founded
fear of future persecution because even assuming that
this policy is in effect, the applicant had not provided
evidence that the policy is implemented through physical
1
In a recent decision, this Court directed the BIA to consider
evidence that was before it as a result of the Second Circuit
decisions in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.
2006) and Jin Xiu Chen v. United States DOJ, 468 F.3d 109 (2d
Cir. 2006). Xiu Ling Chen v. Gonzales, 489 F.3d 861, 863 (7th Cir.
2007). Specifically, the BIA was to address the significance of
a pamphlet issued by family-planning officials in Changle, a
city in Fujian. Id. The translation of this pamphlet stated that
the birth of a second child would result in mandatory steriliza-
tion. Id. This Court reasoned that if the handbook proves gen-
uine and current, the translation accurate, and the threat
serious, it would call into question the conclusion reached in
Matter of C-C-, 23 I&N Dec. 899 (BIA 2006), that Fujian no
longer uses force in its family planning program. Unbeknownst
to this Court, the BIA had considered the significance of this
pamphlet, along with other, more current documentary evidence,
including U.S. State Department country reports and profiles,
in these two decisions issued three days prior to decision in
Xiu Ling Chen.
14 No. 05-1780
force or other means that would amount to persecution.
Id. Additionally, the BIA considered a recent State Depart-
ment profile, Bureau of Democracy, Human Rights, and
Labor, U.S. Dep’t of State, China: Profile of Asylum Claims
and Country Conditions 30 (May 2007), which indicated
that children born overseas are “not . . . counted” for birth
planning purposes when the parents return to China. The
BIA further reasoned that the central government policy
prohibits physical coercion to compel persons to submit
to family planning enforcement. Moreover, enforcement
efforts in Fujian have been described as “lax” or “uneven”
in published reports and court decisions. Id. at 193. The
BIA concluded that, at most, the evidence suggests that
the applicant and his wife may face “sanctions and penal-
ties” upon returning to China because of the births of
their U.S. citizen children but that the evidence did not
show that such sanctions and penalties would rise to the
level of persecution.
Similarly, in Matter of J- H- S-, the BIA acknowledged
that “China’s system of using pressure and incentives
to achieve family planning goals has to some extent
included physical coercion.” 24 I&N Dec. at 201. The BIA
examined the 2007 profile, which noted “reports” of forced
sterilizations in the Fujian Province, and mentioned the
reference to the Changle City Family Planning handbook
in the Shou Yung Guo decision. The BIA also cited to the
Bureau of Democracy, Human Rights, and Labor, U.S.
Dep’t of State, China Country Reports on Human Rights
Practices—2006 (Mar. 6, 2007), which states that forced
sterilizations and abortions, in violation of national law,
continued to be documented in rural areas. The BIA
concluded, however, that the applicant had failed to
present sufficient evidence to prove a well-founded fear
of future persecution in Fujian Province on account of
having fathered two daughters there. Even assuming that
the birth of the applicant’s second daughter would be
viewed as unauthorized, the BIA explained, the record
No. 05-1780 15
did not contain persuasive evidence that the birth would
trigger enforcement activity in Fujian Province, where
enforcement efforts were described most recently as
“uneven.” Id. at 202. The BIA also stated that there was no
indication in the Second Circuit’s reference in Shou Yung
Guo to documents that reflect that the birth control
measure imposed upon the birth of a second child in
Changle City, Fujian Province is to forcible sterilization, as
opposed to “sterilization.” Id. at 203. On balance, the
BIA concluded, “the evidence suggest[ed] that physical
coercion to achieve compliance with family planning
goals is uncommon and unsanctioned by China’s national
laws, and that the overall policy is much more heavily
reliant on incentives and economically-based penalties.” Id.
In the instant case, petitioners have questioned the
reliability of the reports considered by the IJ but failed to
provide the requisite specific, detailed facts showing that
they have good reason to fear that they will be singled out
for persecution. See Ahmed v. Ashcroft, 348 F.3d 611, 618
(7th Cir. 2003). Accordingly, the IJ’s conclusion that
petitioners did not have a well-founded fear of future
persecution is supported by substantial evidence.
III. Conclusion
For the foregoing reasons, we DENY the petition for
review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-20-07