Dao Qing Ye v. Attorney General of the United States

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 09-4395
___________

DAO QING YE,
Petitioner
v.

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________

On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-165-866)
Immigration Judge: Honorable Margaret Reichenberg
____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)
September 15, 2010
Before: SCIRICA, SMITH AND WEIS, Circuit Judges
(Opinion filed: September 22, 2010)
___________

OPINION
___________

PER CURIAM.

Dao Qing Ye seeks review of the Board of Immigration Appeals’ (“BIA”)

final order dismissing his appeal of the Immigration Judge’s (“IJ”) denial of asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”). We

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will deny the petition.

I.

Ye, a native and citizen of China, entered the United States in May 1992

without inspection. In August 1993, he filed an application for asylum. In support of the

application, Ye attached an addendum in which he stated that after his wife gave birth to

their second child in China, he was forcibly sterilized.

In August 1996, Ye was placed in removal proceedings after an Order to

Show Cause and Notice of Hearing (“OSC”) was filed, charging him with removability

pursuant to INA § 241(a)(1)(B). At a January 1996 hearing, Ye, through counsel,

admitted the factual allegations in the OSC and conceded removability. At that hearing,

Ye indicated that he wished to proceed under the asylum application that he filed in

August 1993, wherein he sought asylum and related relief.

At a hearing in April 1998, Ye withdrew his 1993 asylum application and

sought voluntary departure, which the IJ granted. Ye remained in the United States,

however, and in January 2007 he filed a motion to reopen, seeking reconsideration of his

asylum application. In the motion, Ye again submitted an affidavit claiming that he had

been forced to undergo “male sterilization” after his wife gave birth to their second child.

The IJ granted the motion to reopen after the Department of Homeland

Security (“DHS”) did not file an opposition. In November 2007, Ye filed a second

application for asylum, withholding of removal, and CAT relief, claiming that he suffered

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past persecution and has a well-founded fear of future persecution in connection with his

wife’s forcible sterilization and his own resistence to China’s coercive family planning

policy. At a merits hearing, Ye testified that following the birth of the couple’s second

child, his wife was forcibly sterilized and they were fined. In addition, Ye alleged that he

was briefly jailed, during which time he was beaten for failing to pay the fine. Ye

believes he will be imprisoned upon his return to China for having failed to pay the

balance of the fine.

The IJ denied Ye’s asylum application after determining that he lacked

credibility. The IJ alternatively held that Ye failed to satisfy his burden of proof that he

had experienced past persecution for having violated the family planning policy. With

regard to Ye’s credibility, the IJ determined that there were significant inconsistencies

between the information in Ye’s earlier administrative filings, namely his 1993 asylum

application and 2007 motion to reopen, and his 2007 asylum application and hearing

testimony. Specifically, Ye alleged in his 2007 asylum application (and testified to the

same) that it was, in fact, his wife who had been forcibly sterilized following the birth of

the couple’s second child. However, as mentioned, in Ye’s previous filings, he alleged

that he had been sterilized.

When questioned by the IJ about the inaccurate information in his previous

filings, Ye claimed that his first attorney had included the false information in his 1993

application unbeknownst to him and, because it had not been translated for him at the

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time, he was unaware of the error. Ye did acknowledge, however, that in 1998 a friend

translated the 1993 application for him and he learned, for the first time, that it contained

inaccurate information. Ye also acknowledged that he did not attempt to correct the

information at that time. Instead, in his 2007 motion to reopen Ye again alleged that he

had been sterilized. When asked during his administrative hearing why he repeated the

false claim, Ye stated that his 2007 motion to reopen had been prepared by a different

attorney who, at some point, handed his case off to a non-attorney. Ye claimed that he

signed the motion without reading the contents because he believed that it represented his

true claim. However, Ye later testified that while the motion was pending, he became

aware that the motion contained inaccurate information but opted not to amend it.

Ye filed a timely appeal with the BIA and, in an October 2009 decision, the

BIA affirmed both the IJ’s adverse credibility ruling and her alternative holding that Ye

failed to establish a claim of past persecution. Following the BIA’s dismissal of his

appeal, Ye filed a timely petition for review in this Court.

II.

This Court has authority to review final orders of removal. See 8 U.S.C. §

1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the

bases for the IJ’s decision, we have authority to review the decisions of both the IJ and

the BIA.” Chen v. Ashcroft, 376 F. 3d 215, 222 (3d Cir. 2004). We review agency

factual determinations for substantial evidence, and will uphold such determinations

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“unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v.

Gonzales, 405 F.3d 150, 155 (3d Cir. 2005) (internal citations omitted). We will disturb

the BIA’s adverse credibility determination only if “any reasonable adjudicator would be

compelled to conclude to the contrary.” Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir.

2008). Because Ye filed his first asylum application prior to the effective date of the

REAL ID Act, the inconsistencies on which the BIA relied “must not be ‘minor’ and must

go to the heart of [his] claim.” Id.

Substantial evidence supports the BIA’s adverse credibility determination.

The BIA identified two deficiencies that it deemed collectively sufficient to supported the

IJ’s credibility ruling. First, the BIA relied upon the inconsistencies between Ye’s 1993

asylum application and 2007 motion to reopen, and his subsequent asylum application and

hearing testimony. The BIA noted that Ye knew of the false claim in his 1993 application

as early as 1998, yet proceeded to file a counseled motion to reopen repeating the same

inaccuracy.1 As the IJ explained, even if the inaccuracy in Ye’s 1993 asylum application

may be excused due to his inexperience with the immigration progress, his subsequent

filing could not be given the same benefit of the doubt. The BIA further determined that

Ye’s proffered explanations for the discrepancies, including his lack of proficiency in

1
Although Ye argues that “the record is clear that [he] was not represented in his
motion to reopen,” see Pet. Br. at 22, we agree with the Government that the record
suggests otherwise. Counsel’s name appears on the motion to reopen, on the certificate of
service, and Ye testified that a lawyer prepared the document, but that he later returned to
China. (See Joint Appendix (“J.A.”) at 451, 199).

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English, were not valid, particularly because Ye was represented by counsel, at some

point, in both instances.

Second, the BIA relied upon the inconsistency between Ye’s hearing

testimony and his 2007 asylum application. On cross-examination, Ye testified that

following his wife’s sterilization, police detained him for three days, during which time

he was handcuffed to a chair, slapped, and pushed, such that he required stitches.

However, in his asylum application, he failed to indicate that he received any medical

treatment as a result of the alleged physical abuse. Similarly, letters from Ye’s wife and

brother fail to describe any mistreatment that Ye suffered during the three-day detention.

Although Ye argues that the IJ and BIA failed to consider his “plausible

explanations” for his filing of false information in his motion to reopen, see Pet. Br. at 20,

the record does not support such a conclusion. As mentioned, the BIA explicitly noted

that Ye’s “lack of English proficiency is not a valid explanation where [he] was

represented by counsel on both occasions.” (J.A. at 3.) We find no error in the decision

not to credit Ye’s explanations. Although Ye claims that he was wholly unaware of the

contents of his previous filings, we do not find it plausible that Ye would not have made a

concerted effort to clarify the facts supporting his motion to reopen after having realized

in 1998, that his first asylum application contained the inaccurate claim that he had been

sterilized.

Ye also argues that his omission from his 2007 asylum application that he

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had been significantly harmed during his earlier detainment, should not have been used to

“impugn” his credibility. See Pet. Br. at 23. He cites several cases which support the

proposition that an alien need not provide every detail of his claim to be deemed credible.

See, e.g., Senathirajah v. INS, 157 F.3d 210, 221 (3d Cir. 1998) (“Minor inconsistencies

in the record such as discrepancies in dates which reveal nothing about an asylum

applicant’s fear for his safety are not an adequate basis for an adverse credibility

finding.”); Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (explaining that

outright inconsistencies and omissions must be measured against the whole record before

they may justify an adverse credibility determination).

However, in reviewing the omission in Ye’s case, the BIA appropriately

cited our decision in Xin Jie Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004), wherein

we held that the omission of a key event from an asylum application may support an

adverse credibility finding. We note that Ye does not dispute the BIA’s finding that the

omission in his case is material. Moreover, none of the cases that he cites suggests that

one may omit a material claim from an asylum application and still be deemed credible.

Accordingly, we agree with the BIA that Ye’s omission is material, as it goes to the heart

of his claim of past persecution.

Even assuming that Ye was credible, the record does not compel the

conclusion that he established his persecution claim. As an initial matter, we agree with

the BIA that, to the extent Ye relied on his wife’s experiences to support his asylum

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claim, he is not eligible for relief. See Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d

Cir. 2009) (en banc). However, spouses remain eligible for relief if they can establish

their own persecution for resisting China’s coercive reproductive policy or a

well-founded fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42).

We agree with the BIA that Ye is unable to make such a showing.

Ye argues that the cumulative impact of being fined, detained, beaten, and

having his property seized, rose to the level of persecution. See Pet. Br. at 25-27.

However, there is no indiction that the economic restriction imposed upon him was so

severe as to constitute persecution.2 See Li v. Attorney General, 400 F.3d 157, 168 (3d

Cir. 2005). We also conclude that Ye’s three-day detention and the confiscation of some

of his personal property do not amount to persecution. See Lukwago v. Ashcroft, 329

F.3d 157, 168 (3d Cir. 2003) (Persecution includes “threats to life, confinement, torture,

and economic restrictions so severe that they constitute a real threat to life or freedom”

and does not “include all treatment that our society regards as unfair, unjust, or even

unlawful or unconstitutional.”). In sum, we agree with the BIA that Ye, who has the

burden of establishing his eligibility for asylum, see 8 C.F.R. § 208.13(a), has not met that

2
Ye indicated that a fine of 5000 RMB had been imposed, but that it had been
partially paid by his brother. Notably, although Ye argues that he will likely be jailed
upon his return to China for having failed to pay the outstanding balance, he admitted that
he has sent no money back to his wife and children to pay the fine despite having worked
in the United States since, at least, 2002. Furthermore, Ye admitted that his family has
remained in China unharmed, despite the unpaid balance.

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standard.

As Ye did not meet his burden of proof on his asylum claim, his claim for

withholding of removal necessarily fails. See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d

Cir. 2008). We also conclude that the BIA did not err when it concluded that Ye had not

established a basis for relief under the CAT, as he did not demonstrate that it is more

likely than not that he would be tortured upon his return to China.

We will deny the petition for review.

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