United States Court of Appeals
For the First Circuit
No. 06-2179
YAOLING YU,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
Dehai Zhang on brief for petitioner.
Michael J. Sullivan, United States Attorney, and Gina
Walcott-Torres, Assistant United States Attorney, on brief for
respondent.
September 6, 2007
LYNCH, Circuit Judge. Yaoling Yu, a native and citizen
of China, petitions for review of a final order of removal from the
Board of Immigration Appeals (BIA). Having found Yu not to be
credible, the IJ determined Yu had not carried her burdens as to
three forms of relief. The BIA adopted and affirmed the IJ's
ruling. Because the decision is supported by substantial evidence,
we deny the petition for review. Yu's claims for relief primarily
rested on the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(42).
I.
Yu came to visit the United States in 1997 on a temporary
visa. She later secured a student visa but was apprehended by
immigration officials in December 1999 because she was not
attending school and was illegally employed.
On December 15, 2002, Yu filed claims for asylum,
withholding of removal, and protection under the Convention Against
Torture (CAT). At a hearing before the IJ on November 23, 2004, Yu
testified that she was forced to have an IUD inserted in 1983 after
she gave birth to a daughter in 1982. She found a doctor who
agreed to remove the device and she became pregnant again in 1984.
She planned to conceal her pregnancy, but one of her coworkers
became suspicious and reported her; she was then taken
involuntarily from her workplace to a hospital where a doctor
performed an abortion and inserted another IUD, also in 1984. The
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IUD caused her tremendous physical discomfort and she had it
removed by a doctor in the United States in 2001. She also
testified that she divorced her husband in 1996, before she came to
the United States.
On December 20, 2004, the IJ issued an oral decision
rejecting all of Yu's claims on the ground that her testimony was
not credible. The IJ cited numerous inconsistencies in support of
his finding. For example, Yu's earlier written statement differed
from her oral testimony as to whether her coworkers were present in
the operating room when she was examined and anesthetized by the
doctor performing the abortion. While Yu testified she was taken
to the hospital directly from her workplace, a written statement
she submitted from her husband stated that she was taken from their
home. A Chinese household register from 2000, in evidence, stated
that Yu and her husband were married as of that date, contradicting
Yu's assertion that they had divorced in 1996. Most importantly,
the medical record from Yu's February 4, 2001 visit to a doctor in
the United States to have the IUD removed indicates that she told
the doctor that she was pregnant only once before, with no mention
of an abortion.
In a brief per curiam order, the BIA adopted and affirmed
the IJ's decision. The BIA held that it had no reason to question
the IJ's credibility determination. It rejected as baseless Yu's
argument that her husband's inconsistent statement about the
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abortion should be disregarded because of their divorce. The order
also held that Yu should have been able to recall who held her down
when she was anesthetized and that if there had been an abortion,
logically the abortion would appear in the 2001 medical records.
II.
Because the BIA adopted and affirmed the IJ's ruling and
also discussed some of the bases for the IJ's opinion, we review
both opinions. Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006).
To qualify for asylum, an alien must show that he or she
is a "refugee" within the meaning of the immigration laws. See 8
U.S.C. § 1158(b)(1). The alien has the burden of proof for
establishing that he or she is eligible for asylum. Id. §
1158(b)(1)(B)(i); Jean v. Gonzales, 461 F.3d 87, 90 (1st Cir.
2006).
To demonstrate that he or she is a "refugee," the alien
must show that he or she has either suffered past persecution or
has a well-founded fear of future persecution on account of his or
her "race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see also
Alibeaj v. Gonzales, 469 F.3d 188, 191 (1st Cir. 2006). If an
individual has been "forced to abort a pregnancy or to undergo
involuntary sterilization, or . . . has been persecuted for failure
or refusal to undergo such a procedure or for other resistance to
a coercive population control program," that individual is deemed
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to have been "persecuted on account of political opinion." 8
U.S.C. § 1101(a)(42)(B); see also Zeng v. Gonzales, 436 F.3d 26, 28
(1st Cir. 2006); Tai v. Gonzales, 423 F.3d 1, 4 (1st Cir. 2005).
Similarly, an individual who "has a well founded fear that he or
she will be forced to undergo such a procedure or subject to
persecution for such failure, refusal, or resistance" is deemed to
have "a well founded fear of persecution on account of political
opinion." 8 U.S.C. § 1101(a)(42)(B).
Whether an alien has met his or her burden of
establishing eligibility for asylum is a factual determination that
we review under the deferential substantial evidence standard.
Ouk, 464 F.3d at 111. Thus, we uphold the decision unless "any
reasonable adjudicator would be compelled to conclude to the
contrary." Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st
Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)) (internal quotation
marks omitted).
We agree with the BIA that the record provides sufficient
support for the IJ's adverse credibility determination and the
denial of relief. Yu was inconsistent in her recollection of who
was present in the room when the abortion took place. Her account
of being taken from her workplace to the hospital differs
significantly from her husband's statement that Yu's coworkers came
and removed her from their home, and is also inconsistent with his
recollection that the two had been forced to stay home from work on
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account of her pregnancy. Yu claims to have been divorced in 1996
but the 2000 register lists her as married. Her medical records
indicate that in 2001, she told the doctor who removed the IUD that
she was married. The medical records indicate that Yu made no
mention of a previous abortion in the course of otherwise providing
a detailed medical history. She informed the doctor about her
first pregnancy and even her parents' history of hypertension.
Yu's explanations for these inconsistencies are unconvincing.
The IJ and BIA focused on Yu's claim of a forced
abortion, but on appeal to the BIA, Yu made the argument -- renewed
in this court -- that she should qualify for asylum on the basis of
the involuntary IUD insertions and her removal of them. Without
reaching the question of whether 8 U.S.C. § 1101(a)(42) covers such
situations, see, e.g., Zheng v. Gonzales, 409 F.3d 804, 811 (7th
Cir. 2005) (noting that "no court of appeals has decided whether
persecution . . . can be established on the basis of forcible IUD
insertions alone"), we reject this claim.
If Yu intended to make a claim under the statute
independent of her forced abortion claim, she did not clearly
communicate that to the IJ. Her pleadings were broad and vague.
The IJ understood her claims to be focused on the purported forced
abortion. She did nothing to disabuse the IJ of this
understanding. She cannot change the nature of the claim by
shifting her focus in the appellate tribunals.
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We do not consider Yu's claims for withholding of removal
and protection under the CAT because she failed to develop those
claims sufficiently before the BIA. Rodrígues-Nascimento v.
Gonzales, 485 F.3d 60, 62-63 (1st Cir. 2007) (noting that "failure
to adequately brief . . . [a] claim before the BIA prevents us from
considering its merits"); Olujoke v. Gonzales, 411 F.3d 16, 22-23
(1st Cir. 2005).
We deny the petition for review.
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