Yan Yan Li v. Attorney General

IMG-159 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 10-4533
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YAN YAN LI,
Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES
____________________________________

On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A093-396-760)
Immigration Judge: Honorable Eugene Pugliese
____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)
June 22, 2011
Before: BARRY, HARDIMAN AND COWEN, Circuit Judges

(Opinion filed June 23, 2011 )
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OPINION
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PER CURIAM

Yan Yan Li, a citizen of the People’s Republic of China, arrived in the United

States in 2006 as a visitor. In 2007, she applied for asylum, withholding, and protection

under the Convention Against Torture (“CAT”). The Government subsequently charged

her as removable for overstaying her visa, which she conceded.
 In 2008, the Immigration Judge (“IJ”) made an adverse credibility determination

against Li, denied her relief, and ordered her removed to China. Li appealed the ruling to

the Board of Immigration Appeals (“BIA”). The BIA concluded that there was no reason

to disturb the adverse credibility finding or the IJ’s conclusion that Li did not meet her

burdens of proof and dismissed her appeal. Li presents a petition for review, arguing that

the BIA erred in upholding the adverse credibility finding. She also contends that she is

eligible for asylum, withholding, and CAT relief.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We consider questions of

law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n.2 (3d Cir. 2002). We review

factual findings, like an adverse credibility determination, for substantial evidence. See

Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). We evaluate whether a credibility

determination was “appropriately based on inconsistent statements, contradictory

evidences, and inherently improbable testimony . . . in view of the background evidence

of country conditions.” Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). We afford

an adverse credibility finding substantial deference, so long as the finding is supported by

sufficient, cogent reasons. See Butt, 429 F.3d at 434.

Li has one child in China, a son. She claimed to have undergone two forced

abortions before fleeing to the United States because she wanted to have more children.

She reported that the first incident happened in 1995 after she accidentally became

pregnant. Li testified that when her pregnancy was discovered she was dragged into a car

by enforcement agents and made to go to the hospital where the procedure was performed
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against her will. Li testified that she thought that someone in her work unit had informed

on her because she may have had nausea or could have been acting lazy at work. Li also

testified that she was fined 5,000 RMB, but she did not keep the receipt. She was then

fitted with an IUD and required to go for check-ups every six months.

Li testified that in 1997, she resigned from her government job and went into

business for herself, at which time her medical files, including her reproductive history,

were transferred from her work unit to her neighborhood committee. In 2005, Li became

pregnant again after she hired a private doctor to remove her IUD. Two months into her

pregnancy, Li testified that the neighborhood committee discovered the pregnancy and

forced her to undergo a second abortion. She also testified that she was fined 20,000

RMB, and produced a penalty decision letter attesting to that fact.

Based on recent State Department Reports, the IJ stated that he did not believe that

China utilized forced abortion with any degree of regularity and therefore would expect

from Li very good testimony or documentation in support of her claim. The IJ then

pointed to several aspects of Li’s testimony that undermined her credibility, and noted the

lack of corroborating evidence. The IJ concluded that Li could not meet her burdens of

proof. “[C]onsidering the totality of the circumstances and all relevant factors,”

including Li’s demeanor, “inconsistencies and omissions between her testimony and the

written statement, the implausibility of an event that underpins [her] persecution claim,

and her failure to adequately corroborate her claims,” the BIA found no clear error in the

IJ’s adverse credibility determination or conclusion that Li did not meet her burdens of
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proof. R. 7.

We conclude that the adverse credibility determination in this case was supported

by sufficient, cogent reasons. The IJ identified an inconsistency that served to elaborate

the account Li gave in her written application. Specifically, Li testified, but she did not

note in her application, that she was dragged into a car in 1995 when she was taken to

have a forced abortion. The IJ also pointed out that Li told the story of the discovery of

her pregnancy in 1995 differently on direct- and cross-examinations. On direct, Li stated

that she was ordered to go the family planning office where she worked, where she was

told that she had gotten pregnant and must undergo an abortion. On cross-examination,

Li reported that she was called into the family planning office and asked if she was

pregnant (at which point, she admitted that she was).

Furthermore, the IJ’s questioning of the vague nature and plausibility of Li’s

testimony about how the family planning committees found out about her pregnancies

finds support in the record. Li claims that she was forced to abort twice, each time when

she was two months pregnant. However, she could offer nothing more than speculation

about how family planning officials discovered her pregnancies. In support for the

adverse credibility finding, the IJ also noted Li’s calm demeanor that suggested that she

was reciting a story rather than recounting what had happened to her. An IJ’s personal

observations of an alien’s demeanor during testimony is afforded great deference. See

Dia v. Ashcroft, 353 F.3d 228, 252 n.23 (3d Cir. 2003) (en banc). On the whole, the IJ’s

adverse credibility finding is supported by the record.
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 Also, given the areas of vague or inconsistent testimony, the IJ looked for

corroboration to determine if Li could meet her burdens of proof. The IJ drew on the

2007 State Department Report, which noted that forced abortions occurred in some cases,

to support his conclusion that forced abortions do not occur with regularity. Li did not

provide an affidavit from her husband as proof that it happened twice in her case. Her

husband could have corroborated at least some of what happened. Li stated that she

asked her husband to swear out an affidavit, but that he declined to do so on the grounds

that he was too busy to do so. As the IJ noted, busyness was a weak excuse when more

than a year passed between the filing of Li’s asylum application and her hearing.

Furthermore, the IJ and BIA considered that the penalty decision that Li produced

described some of Li’s social and medical history but did not reference any 1995 abortion

or fine. For these reasons, the IJ did not err in concluding that Li did not meet her

burdens of proof.

As the IJ’s rulings are supported by the record, the BIA did not err in dismissing

Li’s appeal.1 Accordingly, we will deny her petition for review.

1
In coming to its conclusion, the BIA, which relied on the factors quoted in its
decision, supra, did not improperly find facts despite mentioning that Li returned to
China after a trip to Singapore and Malaysia after she got pregnant for the second time
after she had her son.
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