United States Court of Appeals
For the First Circuit
No. 10-1100
JIAO HUA HUANG,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Wei Jia was on brief for petitioner.
Ada E. Bosque, Senior Litigation Counsel, Office of
Immigration Litigation, Tony West, Assistant Attorney General,
Civil Division, and William C. Peachey, Assistant Director, were on
brief for respondent.
September 10, 2010
LYNCH, Chief Judge. Jiao Hua Huang, of China, petitions
for review of a December 30, 2009 order by the Board of Immigration
Appeals (BIA). The BIA, affirming a March 14, 2008 ruling of an
Immigration Judge (IJ), denied Huang's application for asylum and
withholding of removal. Huang argues that the BIA erred by
adopting the IJ's adverse credibility determination. He further
argues that the BIA erred in deciding not to remand the proceedings
to the IJ to determine if he could demonstrate "other resistance"
to a coercive population program in light of Matter of J-S, 24 I &
N Dec. 520 (AG 2008), a decision issued after the IJ's ruling in
this case. We deny the petition on both grounds.
I.
On December 12, 2004, Huang entered the United States
without authorization. With the assistance of counsel, he
submitted an application for asylum on August 29, 2005. Huang's
asylum claim is predicated on his and his wife's encounters with a
coercive population program. We briefly summarize the facts at the
center of Huang's asylum claim as he described them in a written
statement submitted with his application.
Huang married Xiu Zhen Ren on August 5, 1989, in a
traditional ceremony, and registered the marriage on June 1, 1991.
Ren gave birth to a son on August 31, 1990, and the couple was
fined 400 RMB for having a child before the registration of their
marriage. Because Ren's first child was a boy, Ren was required to
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have an intrauterine device (IUD) inserted, and was subjected to
regular medical checkups. In January 1996, Ren employed a private
doctor to remove the IUD.
Ren discovered she was pregnant in March 1996, and
subsequently moved to her mother's house in order to hide the
pregnancy. Because Ren failed to undergo scheduled medical exams,
family planning officials visited Huang on several occasions and
inquired as to Ren's whereabouts. In order to avoid these
encounters, Huang joined Ren at his mother-in-law's home on August
14, 1996. That evening, eight family planning officials entered
the home and dragged Ren away by force despite Huang's attempts to
stop them. Ren was taken to Lianjiang County Hospital, where an
abortion was induced. Two months later, Ren underwent another
forced IUD insertion procedure.
Huang attempted to leave China in May 2001, but was
arrested for illegal departure, detained for one week, and released
only upon the payment of bail in the amount of 10,000 RMB. Upon
his release, he remained in China until 2004, when he successfully
left China and entered the United States via the Netherlands,
Venezuela, and Mexico.
On October 3, 2005, a Department of Homeland Security
asylum officer interviewed Huang with the assistance of an
interpreter. Huang could not remember many details regarding his
journey to the United States, such as the name on the passport he
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used, or the names of airlines and hotels along his trip. Based
upon various inconsistencies within Huang's statements--including
a discrepancy as to facts that relate to whether Huang filed his
asylum petition within one year of entry into the United States,
namely, whether Huang last visited a doctor in China in July or
September 2004--the asylum officer determined that Huang "did not
present credible evidence that he was outside the United States
during the year immediately preceding the date of filing." The
officer referred Huang's application to immigration court for
removal proceedings. Huang was served a Notice to Appear before an
IJ on October 17, 2005.
Huang appeared before the IJ, with counsel, on four
occasions between July 20, 2006 and February 4, 2008. Huang
conceded removability, and sought asylum and withholding of
removal. He testified at the July 11, 2007 hearing, and his
testimony generally recalled the same events recited in his asylum
application, including Ren's forced abortion, Huang's 2001
unsuccessful attempt to leave China, and his 2004 trip. With
regard to his 2004 journey, Huang stated he paid a snakehead 50,000
dollars of borrowed money for assistance in getting to the United
States. Huang stated he left China on October 28, 2004, traveled
through the Netherlands, Venezuela and Mexico, and arrived in Los
Angeles on December 12, 2004. He testified that, from Los Angeles,
"somebody bought [him an] air ticket," and he flew to New York to
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meet his cousin. Huang recalled using a passport with the name
"Chen Bin" for part of his trip. He remembered the colors on the
plane he took to Hong Kong, but could not remember the plane
colors, or airline names, of any of his other flights. When asked
why the forced abortion led Huang to seek asylum for himself and
not his wife, Huang responded that it was not convenient for his
wife to leave for the United States because she was a woman and
needed to take care of his child.
Huang's cousin, Bin Yao Yang, testified during the
November 26, 2007 hearing. Yang corroborated that Huang met her in
New York on December 13, 2004, and she stated it was her
understanding that he had only entered the United States the
previous day.
In a March 14, 2008 oral decision, the IJ rendered an
adverse credibility determination against Huang, and concluded that
his asylum application, while timely, was legally insufficient.
The IJ based the credibility determination on the lack of detail
and inconsistencies within Huang's testimony. Specifically, the IJ
found he did not recall his 2001 attempt to leave China, or the
detention that followed, with sufficient detail. In addition, the
IJ noted he was unable to provide a basic description of all but
one of the airplanes he took on his 2004 journey, and offered few
other details about his trip. Details he did recall differed from
his asylum interview; notably, before the IJ he testified he used
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a Chinese passport with the name "Chen Bin," but in his asylum
interview he stated he used a foreign passport with a name he did
not know. Citing Matter of S-M-J, 22 I & N Dec. 722, 724 (BIA
1999), the IJ also noted that in asylum cases, "where it is
reasonable to expect corroborating evidence for certain alleged
facts, such evidence should be provided," but none was. The IJ
observed that, without reasonable explanation, Huang offered no
documentary evidence regarding his travels, had only one photograph
of his family, and was not wearing a wedding ring. Those documents
that Huang did offer--including his marriage certificate and his
son's and wife's birth certificates, all with a date of issuance of
March 25, 2005--were found suspect. In the IJ's view, Yang's
testimony, while corroborative of Huang's date of entry, did not
restore his credibility. The IJ concluded that Huang had not
offered credible testimony to demonstrate past persecution or a
well-founded fear of future persecution.
On May 15, 2008, the opinion in Matter of J-S was
published and held, inter alia, that even though the spouse of a
victim of a coerced abortion or forced sterilization procedure is
not per se eligible for refugee status under 8 U.S.C. section
1101(a)(42), such an asylum applicant can still demonstrate that he
qualifies as a refugee on account of persecution for "other
resistance" to a coercive population program. Matter of J-S, 24 I
& N Dec. at 537. Huang submitted his brief in support of his
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appeal to the BIA on June 19, 2008, a full month after Matter of J-
S was issued. That brief failed to make a claim under Matter of J-
S and did not seek a remand on that basis.
On December 30, 2009, the BIA affirmed the IJ's decision,
finding no clear error in the IJ's credibility assessment in light
of the lack of detail and inconsistencies within Huang's testimony.
The BIA determined that, even if credible, he had not established
a well-founded fear of persecution, and was therefore not entitled
to the requested relief. Finally, the BIA cited Matter of J-S, and
noted that "since the respondent does not allege 'other resistance'
or claim that as a basis for his fear of returning to China, we do
not find it necessary to remand."
II.
Huang seeks review on two grounds. First, he asserts the
BIA erred in upholding the IJ's adverse credibility determination.
Second, he argues the BIA should have remanded the proceedings to
the IJ in light of Matter of J-S.
We review findings of fact for substantial evidence and
are required "to uphold the agency's findings so long as the record
does not 'compel a reasonable factfinder to reach a contrary
determination.'" Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir.
2009) (quoting Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008)).
"Where the BIA has adopted the IJ's credibility determination, as
here, we review the determination of the IJ." Mewengkang v.
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Gonzales, 486 F.3d 737, 739 (1st Cir. 2007). "We review questions
of law de novo, giving substantial deference to the BIA's
interpretation of the underlying statutes and regulations in
accordance with administrative law principles." McCreath v. Holder,
573 F.3d 38, 41 (1st Cir. 2009).
A. Credibility Determination
We uphold credibility findings if "the IJ has given
reasoned consideration to the evidence and has provided a cogent
explanation for his finding." Muñoz-Monsalve v. Mukasey, 551 F.3d
1, 5 (1st Cir. 2008). Here, the IJ's credibility determination was
plainly predicated on "reasoned consideration," explained cogently
in the IJ's decision, and supported by the record. Huang could not
recall significant details regarding his 2001 attempt to leave
China, borrowing money to pay the snakehead in 2004, or his
successful journey to the United States. Although it was
reasonable to expect he would have documentary evidence in the form
of ticket stubs or other travel receipts, he offered very little.
And there are numerous discrepancies between his July 11, 2007
testimony before the IJ and his October 3, 2005 statement to the
asylum officer, including whether he knew the name on the passport
he traveled under in 2004, and whether he entered the United States
from Mexico aboard a taxi or in a truck.
In his petition, Huang only focuses on one of the grounds
for the IJ's credibility determination: the discrepancies between
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his statements before the IJ and the asylum officer.1 We are
unpersuaded by Huang's assertion that these discrepancies should be
discounted because of the "inherent unreliability" of asylum
interviews. Inconsistencies between statements made during a
credible fear interview and testimony during a hearing provide a
legitimate basis for an adverse credibility determination. See
Weng v. Holder, 593 F.3d 66, 72 (1st Cir. 2010). Further, the
alternative interpretation of these inconsistencies that Huang
offers does not cast any doubt upon the proposition that
substantial evidence supports the findings the IJ did make.
“Merely identifying alternative findings that could be supported by
substantial evidence is insufficient to supplant the [IJ's]
findings.” Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003).
Because the IJ's credibility determination is supported by
substantial evidence, this claim of the petition is denied.
B. Remand Pursuant to Matter of J-S
Huang next argues the BIA should have remanded
proceedings to the IJ in light of Matter of J-S so that Huang could
better establish "other resistance" to a family planning program as
a ground for his asylum claim.
1
Huang's argument that the IJ erred because the decision
simultaneously found that Huang's testimony was not credible and
that Huang's asylum claim was timely is meritless. Unlike other
elements of his testimony, his statements relating to his date of
entry were corroborated by his cousin. Moreover, even if the IJ
found one aspect of his testimony accurate, that does not require
a finding that he is credible overall.
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Upon reviewing the BIA's finding that remand was
unnecessary "since the respondent does not allege 'other
resistance' or claim that as a basis for his fear of returning to
China," we conclude that there was no error in this determination.2
Huang did not expressly profess "other resistance" to a coercive
family planning policy. The BIA was not required to find that
Huang's broad statement in his brief that he was requesting asylum
and withholding of removal "based on account of Ren's forced
abortion taken place on August 14-15, 1996 and his opposition to
such government actions" constituted an assertion of a claim under
Matter of J-S. The record supports the BIA's conclusion. See
Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir. 2009).
The petition is denied.
2
The government contends Huang has not exhausted his
administrative remedies with respect to this claim, thus depriving
this court of jurisdiction to review it under 8 U.S.C. section
1252(d)(1), but it does so without any citation to the case law as
to possible exceptions to this rule. See Khalili v. Holder, 557
F.3d 429, 433-34 (6th Cir. 2009); Sidabutar v. Gonzales, 503 F.3d
1116, 1119-20 (10th Cir. 2007). But see Amaya-Artunduaga v. United
States Attorney Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (per
curiam). The government's argument misreads the BIA's order, which
found that Huang had not alleged "other resistance" to a coercive
population program, or sought a remand based on Matter of J-S.
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