United States Court of Appeals
For the First Circuit
No. 08-2398
RU XIU CHEN; XIU JIN ZHENG,
Petitioners,
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,
Lipez and Howard, Circuit Judges.
William P. Joyce and Joyce & Associates P.C. on brief for
petitioners.
Carmel A. Morgan, Trial Attorney, Office of Immigration
Litigation, Michael F. Hertz, Acting Assistant Attorney General,
Civil Division, and Barry J. Pettinato, Assistant Director, on
brief for respondent.
August 27, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr., has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
LYNCH, Chief Judge. Ru Xiu Chen and his wife Xiu Jin
Zheng, both natives and citizens of China, petition for review of
a final order by the Board of Immigration Appeals ("BIA"), denying
their applications for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT"). The BIA
affirmed the decision of an Immigration Judge ("IJ"), who denied
their applications on the basis of an adverse credibility finding.
We deny their petition.
I.
We briefly summarize petitioners' testimony before an IJ.
Chen and Zheng were married on August 5, 1989. Zheng soon became
pregnant with her first child and gave birth to a son on May 1,
1990.
Zheng then became pregnant again, in violation of China's
policy of allowing only one child per couple. On May 18, 1991,
when Zheng was eight months pregnant, government officials learned
of her second pregnancy and came to her mother-in-law's house,
where she and Chen were living, to force her to have an abortion.
Chen and Zheng protested, and seven or eight government officials
forcibly removed Zheng from the home. Zheng was taken to a
hospital, where she received an injection directly below her
bellybutton. Seven or eight hours later, Zheng felt intense pain;
about ten hours later, Zheng gave birth to a stillborn baby. Chen
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had followed Zheng to the hospital, and Zheng later saw Chen at the
hospital.
Shortly thereafter, Zheng became pregnant for a third
time. She went into hiding and secretly gave birth to a daughter
on April 16, 1992. During her pregnancy, Zheng received medical
care from a "private" doctor in China. Zheng provided no medical
records to document the care that she had received from this
doctor.
Government officials learned of Zheng's second birth and
came to the home of Zheng's mother-in-law in June 1992, looking to
sterilize Chen and Zheng. Zheng testified that family planning
authorities had come to her mother-in-law's home a total of three
times. The first time was the incident in 1991 when family
planning officials forced Zheng to have an abortion. The second
time was the June 1992 incident. According to Zheng, the most
recent time that family planning authorities visited her mother-in-
law's home was in 1999 when they came to collect a fine for having
more than one child per couple. Zheng also described a fourth
incident in which the family planning officials had visited her
mother-in-law's home in 1994 to collect the overbirth fine.
Zheng's mother-in-law submitted a letter, which described only the
1992 incident.
After the June 1992 incident, Chen chose to leave China,
and Zheng moved away from her mother-in-law's house. Zheng lived
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with a family friend from July 1992 until October 1992. She then
lived with her younger brother, where she stayed for more than two
years, beginning in October 1992. Zheng took her newborn daughter
with her but left her son to live with her mother-in-law.
A friend helped Chen leave China. Initially using a
Chinese passport in his own name, Chen traveled through Hong Kong,
Bolivia, and Peru before arriving in the United States on July 27,
1992. He presented a fraudulent Japanese passport, and U.S.
immigration officials denied him admission to the United States.
Chen applied for asylum, withholding of removal, and protection
under the CAT on January 25, 1993. His application alleged that
Chinese officials had forced his wife to have an abortion during
the eighth month of her pregnancy. Chen also claimed that if he
were returned to China, he would be forcibly sterilized for
violating China's policy of allowing one child per couple.
About one-and-a-half years later, Zheng, who was still
living in hiding at her brother's home in China, told Chen that his
father in China was dying of liver cancer. Chen chose to return to
China to visit his father and applied for advanced parole from U.S.
immigration officials. The agency granted Chen advanced parole on
June 24, 1994. Chen obtained a passport in his own name from U.S.
immigration officials, and he traveled to China under his own name
for approximately two weeks, returning to the United States on
August 4, 1994. The ease with which Chen was able to return to
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China conflicts with his statement in the affidavit he filed in
support of his asylum application that he had been "smuggled" out
of China and had been "blacklisted" by the family planning
authorities.
When Chen returned to China, he stayed with Zheng for
five days in a hotel under his own name near the hospital where his
father was receiving treatment. Family planning officials were
"hiding in the entrance of the hospital, try[ing] to catch [him]."
Chen's mother warned him that the family planning officials were at
the hospital, and Chen left the area and stayed in the town where
his wife had been hiding for several days. Family planning
officials never came to Chen's hotel looking for him and did not
pursue him further during the time he remained in China.
Zheng joined her husband in the United States
approximately a year later, entering the country without inspection
on July 20, 1995. Before coming to the United States, Zheng left
her two children with her mother-in-law in China. On April 26,
1996, Chen filed a second asylum application, listing his wife as
a derivative beneficiary. Chen attached to his second asylum
application the same affidavit describing his experiences in China
that he had used for his original asylum application in 1993. He
did not mention the 1994 incident in which family planning
officials were allegedly hiding at the hospital where Chen's father
was receiving treatment.
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The agency referred Chen's asylum application to an IJ on
April 15, 2004 and simultaneously issued Zheng a Notice to Appear
("NTA"), charging her with removability under 8 U.S.C.
§ 1158(a)(6)(A)(i). On December 22, 2004, Zheng appeared before an
IJ, admitted the facts contained in the NTA, and conceded
removability.
On February 22, 2005, Zheng filed a separate asylum
application, listing Chen as a derivative beneficiary. Zheng's
application claimed that Chinese officials had forced her to have
an abortion when she was eight months pregnant in 1991. She also
alleged that government officials came looking for her husband
following the birth of their second child in 1992 and wanted to
sterilize him for violating China's one-child policy.
Petitioners' applications subsequently were joined for
hearing purposes but were not consolidated. Zheng and Chen
testified before an IJ at a hearing on September 6, 2005. At the
close of the testimony, the IJ noted that she was "a little
troubled by the changing testimony . . . and . . . at [Zheng's]
hesitancy in answering some of the questions that were put to her."
At the hearing, Zheng testified that she had a miscarriage in 2004
while she was living in the United States. Zheng presented no
medical records to corroborate this claim, and her lawyer had only
learned of the miscarriage from Zheng as they were talking on the
way to the hearing that morning. Although Zheng had been seeing a
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gynecologist annually since living in the United States and claimed
that she was still suffering side effects, such as dizziness, from
her 1991 forced abortion, she did not mention the 1991 abortion to
her gynecologist until she suffered the miscarriage in 2004.
The IJ offered Zheng and Chen an opportunity to obtain
evidence corroborating their claim, including medical records. She
also invited petitioners to have Chen's brother and Zheng's sister,
both of whom lived nearby in Massachusetts, testify and continued
the proceedings to allow them to secure those witnesses. Chen's
brother never testified before the IJ.
The IJ held a further hearing on November 4, 2005. At
that hearing, the IJ asked Zheng questions about the medical
records from her doctor in the United States that she had
submitted. The IJ said that "[Zheng's] demeanor . . . was very
strange indeed" when she testified and suggested that having the
doctor that Zheng had been seeing in the United States testify
would help corroborate her testimony and clarify the meaning of
some of the notations in her medical record. The IJ continued the
proceedings to allow Zheng's doctor and Zheng's sister to appear as
witnesses. The parties agreed to resume the hearing on December 7,
2005.
Zheng's doctor, however, was unavailable to testify, and
the hearing resumed on July 18, 2006. At that time, the IJ heard
testimony from Zheng's sister, who stated that Zheng first told her
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about the forced abortion two years after it had allegedly
occurred. Zheng's sister testified that Zheng had chosen not to
tell her about the abortion for two years because she has heart
problems and Zheng did not want to cause her stress.
The hearing was continued several times to allow Zheng's
doctor to testify. But Zheng's doctor ultimately never testified.
The IJ issued a written decision on May 30, 2007, which
found certain aspects of petitioners' testimony not credible and
denied them relief on that basis. In particular, the IJ held that
"[petitioners] have failed to present credible, consistent, and
detailed testimony to demonstrate that Chinese government officials
persecuted them by forcing [Zheng] to undergo an abortion in 1991
or by pursuing [Chen] for sterilization."
The IJ identified three significant problems with Chen's
testimony: (1) his apparently shifting stories as to his motive for
leaving China; (2) his testimony that Zheng continued to live at
home with his mother after he had left China in 1992, which
conflicted with Zheng's testimony that she went into hiding during
that period; and (3) his testimony that family planning authorities
were hiding in the hospital where Chen's father was receiving
treatment when Chen returned briefly to China in 1994 but chose not
to pursue Chen at his nearby hotel where he was staying under his
own name. Likewise, the IJ found that Zheng's testimony was not
credible because (1) she had not listed the addresses where she had
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stayed for more than two years while she was allegedly hiding
following Chen's departure from China in 1992, (2) she was
inconsistent in describing the number of times that family planning
authorities had visited her home in China, and (3) she provided no
corroborating medical records for the medical treatment she
received during her most recent pregnancy in China. The IJ found
that these inconsistencies went to the heart of petitioners'
claims.
In separate opinions issued October 10, 2008, the BIA
adopted the IJ's adverse credibility findings and affirmed the IJ's
decision on that basis. Zheng and Chen timely petitioned for
review.
II.
"Where, as here, 'the BIA adopted and affirmed the IJ's
ruling, but also discussed some of the bases for the IJ's opinion,
we review both the IJ's and the BIA's opinion.'" Mam v. Holder,
566 F.3d 280, 282 (1st Cir. 2009) (quoting Cuko v. Mukasey, 522
F.3d 32, 37 (1st Cir. 2008)). We review the agency's adverse
credibility determination under the deferential substantial
evidence standard. Id. at 283. "[W]e will not upset the agency's
credibility determination unless petitioners can show the record
evidence, considered as a whole, 'would compel a reasonable
factfinder to make a contrary determination.'" Id. (emphasis in
original) (quoting Cuko, 522 F.3d at 37).
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Our assessment of an adverse credibility determination
focuses on whether "(1) 'the discrepancies articulated by the IJ
and/or the BIA are actually present in the administrative record';
(2) 'the discrepancies generate specific and cogent reasons from
which to infer that petitioner or his witness provided
non-creditworthy testimony'; and (3) 'petitioner failed to provide
a persuasive explanation for these discrepancies.'" Id. (quoting
Cuko, 522 F.3d at 37). Because petitioners filed their asylum
applications before the effective date for the REAL ID Act, we
apply the "heart of the matter rule," which requires that
"discrepancies relied upon by the trier in making adverse
credibility determinations must 'pertain to facts central to the
merits of the alien['s] claims, not merely to peripheral or trivial
matters.'" Bebri v. Mukasey, 545 F.3d 47, 50 & n.1 (1st Cir. 2008)
(quoting Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir. 2006)).
We start by limiting the areas of disagreement with the
IJ's decision that we will consider. The government candidly
concedes that several of the discrepancies highlighted by the IJ
are not supported by the record. These discrepancies include (1)
a perceived inconsistency in Chen's description of his motive for
leaving China and (2) a possible conflict between Chen's and
Zheng's accounts of Zheng's whereabouts after Chen's departure from
China. We agree with the government that these alleged
discrepancies are not supported by the record, and they form no
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part in our analysis. Nonetheless, there were still so many
inconsistencies in petitioners' testimony that we find the IJ's
adverse credibility determination was supported by substantial
evidence. Petitioners' failure to present corroborating evidence
that could have resolved some of the inconsistencies in their
testimony is especially troubling because the IJ gave petitioners
numerous opportunities to obtain corroborating evidence to address
what she had identified as weaknesses in their story and continued
the proceedings for more than a year to permit petitioners to
gather corroborating evidence.
We find the IJ's adverse credibility determination
supported by substantial evidence. Notably, Zheng inconsistently
described her whereabouts during the period following Chen's
departure. This discrepancy, which involves Zheng's response to a
perceived threat from Chinese family planning authorities spanning
more than a two-year period, goes to the heart of petitioners'
claims. In her testimony before the IJ and in her affidavit in
support of her asylum application, Zheng stated that she went into
hiding after Chen left China in 1992, staying at a friend's house
for several months before living with her younger brother for more
than two years. In her asylum application, however, she listed
only a single address in China, which was neither her friend's
address nor her brother's. Zheng provided no satisfactory
explanation for why she neglected to include the addresses of her
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friend and younger brother in her asylum application. And she did
not offer easily obtainable corroborating evidence, such as a
letter from her brother to confirm that she had lived with him for
more than two years.
Beyond that, substantial evidence supports the IJ's
finding that Zheng testified inconsistently about the number of
times that family planning officials had visited her mother-in-
law's house. When asked directly how many times family planning
officials had visited the house, Zheng stated that they had come
three times. She then described a total of four visits made by
family planning officials. The letter from Zheng's mother-in-law
described only one such visit, and Zheng could not explain why the
mother-in-law's letter did not mention at least two of the other
visits. This inconsistency goes to the heart of petitioners'
claims because it is relevant to the intensity of the threat posed
by their alleged persecutors.
Additionally, Zheng's delayed reporting of the 1991
forced abortion to her sister and doctor in the United States casts
doubt on the credibility of her account. It is suspicious that
Zheng waited two years to disclose to her sister what her sister
described as "a big incident for her." And Zheng would have had no
reason to wait years before disclosing the 1991 abortion to her
doctor in the United States, especially when she was still
suffering dizziness as a side effect of the procedure.
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Likewise, substantial evidence supports the IJ's
determination that Chen's account of his brush with the family
planning authorities at the hospital where his father was staying
in 1994 was inherently implausible. According to Chen, family
planning officials were "hiding in the entrance of the hospital,
try[ing] to catch [him]." Chen said that he avoided the family
planning officials only because his mother had warned him of their
presence. Yet Chen failed to include this incident in his
subsequent asylum application. And it is difficult to believe that
family planning officials would hide at the hospital to catch Chen
but would not take the further step of seeking him out at his
nearby hotel, where he was staying in his own name. Moreover, the
fact that Chen returned to China using a passport issued in his own
name conflicts with his account that he had been "blacklisted" by
the authorities, and his willingness to return voluntarily suggests
that his fear of persecution was not well-founded. Therefore, the
IJ could properly disbelieve Chen's story about the family planning
officials at the hospital in 1994 and base an adverse credibility
finding on it.
Finally, the IJ's adverse credibility determination was
based, in part, on witness demeanor. "Since the IJ has the best
vantage point from which to assess the witnesses' testimonies and
demeanors, we accord significant respect to these witness
credibility determinations." Mam, 566 F.3d at 283 (quoting Cuko,
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522 F.3d at 37) (internal quotation marks omitted). At various
points throughout the hearing, the IJ noted that Zheng's demeanor
made her skeptical of Zheng's credibility and offered Zheng
multiple opportunities to supplement the record with further
documentation and witnesses in support of her claim. Zheng failed
to provide the IJ with the corroborating evidence that she had
requested.
Because Chen and Zheng failed to provide credible
testimony, they could not meet their burden of proof to establish
their asylum claims or the more stringent burden for withholding of
removal. See Mam, 566 F.3d at 285-86. Likewise, they cannot meet
their burden for relief under the CAT because their claims are
based on the same deficient testimony. See Khan v. Mukasey, 541
F.3d 55, 58 (1st Cir. 2008).
III.
The petition for review is denied.
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