NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0527n.06
Filed: July 28, 2006
No. 05-3896
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
XIU QING LIU, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM AN ORDER OF THE BOARD
) OF IMMIGRATION APPEALS
ALBERTO GONZALES, )
)
Respondent. )
Before: DAUGHTREY and COOK, Circuit Judges, and COLLIER,* District Judge.
PER CURIAM. Xiu Qing Liu petitions for judicial review of an order of the Board of
Immigration Appeals affirming an immigration judge's finding that she was subject to
removal as an illegal alien. We find no basis on which to overturn the Board’s decision or
that of the immigration judge, and we therefore deny review.
Liu, a citizen of China, entered the United States without inspection near Algonac,
Michigan, in May 2002. The Immigration and Naturalization Service immediately initiated
removal proceedings under § 212(a)(6)(A)(i) of the Immigration and Nationality Act. Liu
applied for asylum, withholding of removal, and relief under the United Nations Convention
*
The Hon. Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting
by designation.
No. 05-3896
Liu v. Gonzales
Against Torture, contending that she had been persecuted for violating China’s coercive
population-control policy. At an initial hearing in April 2003, Liu conceded removability, and
a date was set for a hearing on the merits of the asylum petition.
At the merits hearing, the petitioner testified that she and her husband were married
before either of them had reached the legal age for marriage. As a result, she said, when
the local authorities learned a few months later that she was pregnant, she was forced to
undergo an abortion. But Liu failed to produce any evidence to corroborate her testimony,
other than the testimony of a man who purported to be her father but was unable to
produce any identification other than a Maryland driver’s license that had been issued a few
weeks prior to the hearing.
The immigration judge denied Liu’s applications, finding that she failed to
demonstrate that she had suffered past persecution, did not establish the basis for a well-
founded fear of future persecution, and could not demonstrate that it was more likely than
not that she would be tortured if she were to return to China. On appeal, the Board of
Immigration Appeals affirmed the immigration judge’s decision. In affirming, the Board
specifically agreed with the immigration judge’s conclusion that in light of discrepancies in
Liu’s and her father’s testimony, “the respondent’s testimony is not sufficient on its own to
establish that she was persecuted in China.”
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Liu v. Gonzales
In her petition for review, Liu argues that her testimony had only a few minor
inconsistencies that were non-material and that her testimony was supported by country
condition reports.
On petition for review, we consider whether the immigration judge correctly
determined that Liu failed to sustain her burden of establishing eligibility for asylum or
protection under the Convention Against Torture. The Board's and the immigration judge’s
determination “must be upheld if ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (quoting 8 U.S.C. § 1105a(a)(4)). Under this deferential standard, we may not
overturn the decision simply because we would have decided the matter differently.
See Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir.1998); Klawitter v. INS, 970 F.2d 149,
151-52 (6th Cir.1992). Indeed, in order to set aside the Board's factual determinations, we
must find that the evidence “not only supports a contrary conclusion, but indeed compels
it.” Klawitter, 970 F.2d at 152.
Credibility determinations by the immigration judge are afforded great weight.
Nevertheless, those credibility determinations must be fairly supported by the record. In
this case, the only evidence other than Liu’s testimony is that of her father, who had no
evidence to prove his identity and who made statements that were not completely
consistent with Liu’s testimony. Thus, the immigration judge was not unreasonable in
concluding that her uncorroborated and sometimes inconsistent testimony was not
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No. 05-3896
Liu v. Gonzales
sufficiently credible, standing alone, to establish her eligibility for relief under the provisions
in 8 C.F.R. §§ 208.13(a) and 208.16(b).
In Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (BIA 1987) (abrogated on other
grounds by Pitcherskaia v. INS, 118 F.3d 641, 647-48 (9th Cir. 1997), the Board noted that
an ”alien's own testimony may in some cases be the only evidence available” but held that
“it can suffice [only] where the testimony is believable, consistent, and sufficiently detailed
to provide a plausible and coherent account of the basis for his fear.” In this case, the
petitioner testified that she could have gotten corroborative evidence but felt that it was
unnecessary. As a result, there is no adequate explanation for the absence of evidence
from a physician that she had been pregnant or had an abortion, or for the failure to provide
corroborating statements from her husband or husband’s parents – statements that Liu said
she could have acquired from her family in China within two months. But, as we have
observed:
[W]here it is reasonable to expect corroborating evidence for certain alleged
facts pertaining to the specifics of an applicant's claim, such evidence should
be provided. . . . The absence of such corroborating evidence can lead to a
finding that an applicant has failed to meet her burden of proof.
Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004) (quotation omitted).
There is nothing in the record before us to support Liu’s argument that a reasonable
fact-finder would be compelled to reach a different conclusion than that of the immigration
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No. 05-3896
Liu v. Gonzales
judge and the Board. We therefore DENY review of the immigration judge’s determination
to withhold relief in this case and the Board’s order affirming that decision.
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