Yan Qin Xiao v. Michael Mukasey

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1120
Y AN Q IN X IAO, also known as H UI C HING C HUANG,
and SUN C HENG JIANG,
Petitioners,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
Nos. A97-385-000, A79-087-464
A RGUED S EPTEMBER 25, 2008—D ECIDED O CTOBER 27, 2008
Before P OSNER, F LAUM, and E VANS, Circuit Judges.
F LAUM, Circuit Judge. Petitioner Yan Qin Xiao and her
husband Sun Cheng Jiang seek review of a final order of
removal issued by the Board of Immigration Appeals
(“BIA”). The BIA upheld the Immigration Judge’s (IJ)
finding that petitioners’ testimony was not credible
and denied their asylum claim. For the reasons explained
below, we affirm.
2 No. 08-1120
I. Background
Xiao and Jiang are Chinese nationals. They were boy-
friend and girlfriend in China. They were never married
there.
Jiang entered the United States before Xiao. He applied
for asylum in September 2002, after the one year filing
deadline—which requires an applicant to file within one
year of his last entry in the United States—expired. In
his application, Jiang claimed that in 1998, government
family planning officials forced his then-girlfriend Xiao
to undergo an abortion, and he was fined for arguing
with family planning officials about the forced abortion.
Xiao arrived in the United States at Miami International
Airport on June 5, 2003. She stated to the immigration
officer at the airport that she was fleeing China because
the Chinese government sought to arrest her for the
practice of Falun Gong. On June 9, 2003, in a credible
fear interview with an asylum officer, Xiao again main-
tained that she fled China because she feared arrest
because of her Falun Gong practice. Xiao did not
mention a forced abortion on either occasion. Xiao was
placed in removal proceedings. She conceded charges of
removability and filed an application for asylum, with-
holding of removal, and protection under Article III of the
United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”). She later requested removal of her case to
Immigration Court in Chicago, and this request was
granted.
No. 08-1120 3
In 2005, Jiang and Xiao were married in Missouri.
Xiao gave birth to their son during that year. Because he
had not met the one-year deadline, Jiang abandoned
his independent asylum claim and sought derivative
asylum through Xiao’s application.
Xiao had her individual merits hearing, which included
Jiang’s derivative claim, in Immigration Court on
May 24, 2006. Xiao testified that she had met Jiang in
April 1997 when they worked together at a furniture
company, Hua Mei, in Guang Tou town in the Fujian
Province of China. Xiao stated she stopped working at
the furniture store in 1997.
Xiao stated that she became pregnant in January 1998
and that Jiang was the father. In March 1998, because
Xiao was pregnant and unmarried in violation of China’s
family planning policies, she began hiding at the house
of a friend, Zho Song Li, who lived in a different village.
Xiao stated that she was unable to marry Jiang because
they could not obtain a marriage license as Jiang was not
registered locally in Guang Tou town, where he worked,
or in the nearby village of Nan Tian, where he lived with
his parents. He was not registered locally because his
household registration remained in Shanghai where he
attended college, and there was a delay in transferring it.
Xiao testified that while hiding at her friend Li’s home,
on June 28, 1998, five officials from the family planning
office “charged into the house” and dragged her to the
Guang Tou town health clinic where she underwent a
forced abortion. She states that she was released from
the hospital the next day. Xiao stated that she then went
4 No. 08-1120
to her parents’ home in the Yang Qi village. Although
she was not given an abortion certificate at the time of
the abortion, Xiao stated that her parents obtained an
abortion certification on July 8, 1998.
According to Xiao’s testimony, her friend called her
boyfriend Jiang after Xiao had gone to the Guang Tou town
health clinic. Xiao indicated that Jiang was very upset
and went to the family planning office in his own village
and argued with family planning officials. After the
argument, Xiao testified that Jiang received a fine notice
of 10,000 RMB from the family planning office. Xiao stated
that after the argument, the public security bureau was
looking for Jiang, so he fled China.
Xiao testified that after the abortion, feeling sad and
helpless, she turned to Falun Gong. She stated that she
was introduced to Falun Gong by a friend, Qui Hong
Gang. Xiao identified herself as a “beginner” practitioner
and described Falun Gong as “a way to cultivate one’s
body and its part of Buddhism.” Xiao stated that initially
she practiced Falun Gong in her own home, but that she
soon learned that her friend Qui had been arrested for
Falun Gong practice. She testified he was arrested in
September of 2001. She stated that public security officials
later came to her house in an attempt to arrest her, but
she was able to escape because her friend’s mother
called and told her she should hide. Xiao testified that
she feared arrest, so she moved in with her aunt, who
lived an hour and a half away. She testified that she
avoided arrest for almost two years until her departure
to the United States.
No. 08-1120 5
In 2003, Xiao testified, her mother and friends arranged
for her transport to the United States by payment of a
sum to a smuggler. Xiao admitted that her sister, Yan
Duan Xiao, had obtained asylum in the United States
in 2004 on a forced abortion claim, but that she did not
know her sister had applied for asylum before her
own arrival in the United States in June 2003.
Xiao admitted that she did not mention the forced
abortion in the sworn statement she gave when she
arrived at the Miami airport or at her credible fear inter-
view a few days later. She claimed that she did not cite
the forced abortion because she “felt shamed for her
premarital pregnancy and felt humiliated by the
abortion procedure.”
Jiang also testified at the merits hearing. Jiang testified
that he met Xiao in April 1997. He stated he was living
with his parents in Nan Tian at that time. He had been a
student in Shanghai and had graduated in 1994. He
testified that he had not yet been able to transfer his
registration back to Nan Tian or Guang Tou town, where
he worked.
As to the forced abortion, Jiang stated that Xiao had been
hiding at the house of a friend, and that the friend had
called him when Xiao was taken away. Jiang stated that he
was upset and went to argue with local family planning
officials in Nan Tian (although his written application
stated that he argued with family planning officials in
Guang Tou town). He stated that on the same day local
family planning officials delivered a 10,000 RMB fine for
violation of China’s birth control policy. The fine was
6 No. 08-1120
delivered by the village leader. Jiang said he showed
the fine to his parents, who advised that he go into
hiding the next morning.
The IJ issued his oral decision immediately following
the merits hearing. The IJ found that petitioners were
removable by clear and convincing evidence, and he
denied their applications for relief and protection. The IJ
found Xiao’s and Jiang’s testimony not credible and “not
supported by specific detailed information that
overcomes their lack of credibility.” The IJ stated that
he did not believe “that the respondents have estab-
lished that the female respondent was forced to undergo
an involuntary abortion in 1998 or that she fled China in
2003 because of her practice of Falun Gong.” The IJ cited
several specific reasons for the adverse credibility finding.
Xiao and Jiang appealed to the BIA. They claimed their
testimony was credible, and that they qualified for asy-
lum. On August 30, 2007, the BIA affirmed the IJ’s denial
of the application in a two page, single-spaced decision
issued per curiam. First, the BIA determined that Xiao and
Jiang had not contested the denial of withholding of
removal and protection under CAT, meaning those claims
were abandoned.
The BIA affirmed the denial of the asylum claim be-
cause the IJ’s finding that Xiao and Jiang were not
credible was not clearly erroneous. The BIA based its
decision on three of the IJ’s specific reasons for finding
the petitioners incredible. First, the BIA affirmed because
it concurred with the IJ’s determination that Xiao’s testi-
mony was not credible because she had not disclosed to
No. 08-1120 7
the immigration officer or the asylum officer in Miami
that a forced abortion was one reason for her flight from
China. The BIA found: “[T]he husband’s asylum applica-
tion mentioned that he was applying for asylum based
on China’s coercive population control policy, but the
lead respondent mentioned in her arrival statement and
her credible fear interview that she feared persecution
only due to her practice of Falun Gong.” The BIA
found Xiao’s omission from her arrival statement and
credible fear interview particularly significant because:
(1) Jiang claimed in his asylum application that he
suffered persecution because of her abortion; and (2) Xiao
was in contact with Jiang by telephone and knew why
he had applied for asylum.
The BIA also affirmed based on an inconsistency that the
IJ found in testimony on Jiang’s argument with family
planning officials. The IJ did not believe that Jiang could
have received the fine notice on the same day that the
abortion took place. In his written application, Jiang
said he argued with officials in Guang Tou town, but
he testified at the merits hearing that he argued with
officials in his village of Nan Tian and these local officials
delivered the fine. The IJ found these inconsistencies
weighed on petitioners’ credibility. The IJ did not believe
that if Jiang argued in Guang Tou town, as he originally
stated, the family planning officials in Nan Tian would
know of the argument soon enough to hand-deliver
an immediate fine. The BIA agreed, stating it found
“highly speculative that the lead respondent had an
abortion in a different village from where her husband
lived, but yet a family planning official hand delivered
8 No. 08-1120
notice of a fine to his house on the same day as the
alleged abortion.”
The BIA also found the submission of an abortion
certificate into evidence adversely affected the petitioners’
credibility. The IJ referenced the U.S. Department of
State Country Reports and 2004 Profile of China,
which suggest that abortion certificates are not issued for
involuntary abortions but are issued after voluntary
abortion only to allow time off for work. Xiao testified
that, with the help of her parents, she was able to obtain
a certificate. The IJ found this testimony incredible. The
BIA agreed, stating: “The respondent’s submission of
an abortion certificate undermined the claim that any
abortion was involuntary.”
The BIA also found that even if Xiao’s testimony
about Falun Gong practice was found to be credible, it
would not amount to a finding of well-founded fear of
future persecution.
Petitioners appeal the BIA decision.
II. Analysis
An alien qualifies for asylum if he can demonstrate
by credible evidence that he is a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). The INA defines a refugee as a person
who is “unable or unwilling to avail himself or herself of
the protection of, that country [of nationality] because of
persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42). If an alien establishes past persecution,
No. 08-1120 9
there is a rebuttable presumption of future persecution.
To still deport the alien, the government must then
show that country conditions have changed, meaning
the past persecutors are no longer able to persecute.
8 C.F.R. § 1208.13(b)(1).
In the instant case, the lower courts found Xiao and
Jiang not credible. An adverse credibility finding, if
sustained, is fatal to an application for asylum. Xiao and
Jiang argue that the BIA’s adverse credibility determina-
tion is not supported by substantial evidence. Where, as
here, the BIA does not expressly adopt the IJ’s findings
but rather issues its own opinion, we review the BIA’s
decision alone. Moab v. Gonzales, 500 F.3d 656, 659 (7th
Cir. 2007).
We will uphold the BIA decision so long as it is sup-
ported by substantial evidence, and will overturn it “only
if the record compels a contrary result.” Mabasa v.
Gonzales, 455 F.3d 740, 744 (7th Cir. 2006). Pre-Real ID Act
credibility determinations must be based on “specific
cogent reasons” that have a “legitimate nexus to the
finding and that go to the heart of the applicant’s claim.”
Giday v. Gonzales, 434 F.3d 543, 550 (7th Cir. 2006); Capric v.
Ashcroft, 355 F.3d 1075, 1086 (7th Cir. 2004). The Court
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 should be disturbed
only under “extraordinary circumstances.” Shmyhelskyy
v. Gonzales, 477 F.3d 474, 479 (7th Cir. 2007).
The BIA based its decision upholding the adverse
credibility finding of the IJ in part on Xiao’s failure to
10 No. 08-1120
disclose her purported forced abortion during her
airport arrival interview and her credible fear interview.
According to Seventh Circuit case law, in making a deter-
mination, an adjudicator may properly consider state-
ments made at an airport interview as long as they are
reliable. Jamal-Daoud v. Gonzales, 403 F.3d 918, 923 (7th Cir.
2005); Balogun v. Ashcroft, 374 F.3d 492, 504-05 (7th Cir.
2004). In the instant case, the interviews were found to be
reliable because there was a translator present and Xiao
seems to have understood the questions.
Xiao claims that she did not mention forced abortion
in Miami because she was ashamed that she had become
pregnant before marriage. While this may be so, this
explanation cannot overcome the high level of deference
that we give to the lower courts. The BIA concluded that
Xiao’s inconsistent statements regarding her reasons for
fleeing China adversely affect her credibility, and we
cannot say that the record compels a contrary result. These
inconsistencies are specific, cogent reasons to make an
adverse credibility finding, and they go to the heart of
the applicant’s claim.
This single discrepancy is enough to find petitioners’
entire testimony not credible. We have held that the
“addition of new factual assertions that were not originally
set forth can be viewed as inconsistencies providing
substantial evidence that the applicant is not a reliable or
truthful witness.” Oforji v. Ashcroft, 354 F.3d 609, 614 (7th
Cir. 2003); see also Huang v. Gonzales, 453 F.3d 942, 945-47
(7th Cir. 2006) (upholding adverse credibility determina-
tion based on a single significant inconsistency); Chen v.
No. 08-1120 11
Gonzales, 420 F.3d 707, 710 (“[s]ignificant discrepancies
among different versions of an alien’s statement are
generally a permissible basis for an adverse credibility
decision.”).
In upholding the adverse credibility finding, the BIA
cited other inconsistencies as well. It stated that the
divergent statements about the circumstances under
which Jiang argued with family planning officials and
received a fine notice on the same day that the abortion
took place adversely affected the petitioners’ credibility. It
also found incredible the submission of an abortion
certificate into evidence when a country report indicated
abortion certificates were only given for voluntary abor-
tions. Xiao and Jiang claim that this finding “over-relied”
on the State Department report. While we are careful to
not treat State Department reports as “Holy Writ,” see
Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000), we defer
to State Department reports in the absence of a contra-
dictory, “highly credible independent source of expert
knowledge.” Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir.
1997). Moreover, in another case this Court found
credible a petitioner’s testimony that she did not have
an abortion certificate because the abortion was involun-
tary, and certificates are only given for voluntary abor-
tions. Lin v. Ashcroft, 385 F.3d 748, 753-54 (7th Cir. 2004).
In evaluating these reasons for the adverse credibility
finding, we cannot say that the record compels a contrary
result.
We uphold the adverse credibility finding. This finding
is fatal to petitioners’ entire asylum claim. We need not
12 No. 08-1120
address whether, absent an adverse credibility finding,
petitioners’ claims would have supported a well-
founded fear of persecution.
III. Conclusion
The petition for review of the BIA’s order is hereby
D ENIED.
10-27-08