UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 6, 2006*
Decided October 5, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-2110
CHANG S. LU, On Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A77-297-836
ALBERTO R. GONZALES,
Respondent.
ORDER
Chang Sheng Lu fled China and attempted to enter the United States at the
airport in Los Angeles, California in March 2000. The Immigration and
Naturalization Service initiated removal proceedings and Lu conceded removability.
But Lu claimed that he feared persecution under China’s family planning laws, and
applied for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). After a hearing, the Immigration Judge determined that Lu
had not met his burden of establishing past persecution or a well-founded fear of
future persecution because his testimony was not credible. The IJ denied Lu’s
*
On December 6, 2005, we granted the petitioner’s motion to waive oral
arguments. Therefore, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 43(f).
No. 05-2110 Page 2
requests for relief and ordered him removed from the United States; the Board of
Immigration Appeals affirmed without opinion. Lu argues that the IJ’s credibility
finding is not supported by substantial evidence. We deny his petition.
Upon arriving in Los Angeles without valid immigration documents, Lu,
through an interpreter, spoke with an immigration inspector and swore under oath
that he fled China’s Fujian province because he was fired from his job, he did “not
have money or power,” and he could not “compete with the other people.” When
asked whether he had any fear or concern about being returned to China, Lu stated
that he might face financial penalties, and had heard that people who are returned
usually get beat up.
Five months later, Lu applied for asylum and altered his account. He stated
that in China he and his girlfriend had conceived an illegitimate child and that he
helped her escape detection by family planning officials. Since coming to the United
States, he learned that the authorities tracked down his girlfriend and forced her to
have an abortion.
At his hearing before the IJ, Lu again revised his account by adding a
description of an altercation he had with authorities. This time he said that he and
his girlfriend went into hiding after first being approached by family-planning
officials. Eventually, officials found them on a visit to her parents, and he testified
that he sustained minor injuries while fighting with the officials to protect his
girlfriend and unborn child. Despite his efforts, his girlfriend was taken away and
he learned before leaving the country that she was forced to have an abortion. Lu
acknowledged that this testimony contradicted the sworn statement he gave at the
airport, but he explained that he had been intimidated by the immigration inspector
and did not want to admit that he had violated Chinese marriage and family
planning laws.
To corroborate his forced-abortion claim, Lu submitted two letters. The first
letter, from his girlfriend, did not mention the abortion, but stated that her “health
has gradually recovered after the several months of rest and recuperation” after the
“development of events” that were “beyond expectation.” Lu also submitted a letter
from a friend stating that his girlfriend was emotionally unstable after the forced
abortion.
The IJ denied Lu’s application for asylum, withholding of removal, and relief
under CAT, in large part because Lu was not credible and so he had not met his
burden of proving past persecution. The IJ based her adverse credibility finding on
three reasons: first, in Lu’s airport interview he did not mention his girlfriend’s
forced abortion or his altercations with family planning officials; second, his asylum
application and hearing testimony conflicted as to the dates when he began living
No. 05-2110 Page 3
with his girlfriend and when they learned she was pregnant; and third, his asylum
application did not mention his altercation with family planning officials or the
injury he sustained. The IJ also concluded that Lu’s corroborating evidence was not
sufficient to demonstrate persecution. And even if Lu were credible, the IJ added,
8 U.S.C. § 1101(a)(42)(B) did not provide protection for unmarried men whose
girlfriends are forced to undergo abortions under China’s family-planning laws.
On appeal, Lu challenges principally the IJ’s second reason for the adverse
credibility finding. He disputes that he provided inconsistent information regarding
the dates he gave for when he started living with his girlfriend. He asserts that his
hearing testimony addressed the date when his girlfriend began staying with him
overnight, but his asylum application specified the date when she actually started
living in his dorm. He also contends that the IJ ascribed too much weight to the
inconsistent dates he gave for when he learned that his girlfriend was pregnant; he
says now that these dates were only approximations.
Credibility determinations must be based on “specific cogent reasons” that
have a “legitimate nexus to the finding.” Giday v. Gonzales, 434 F.3d 543, 550 (7th
Cir. 2006). Although minor inconsistencies are not a proper basis for an adverse
credibility determination, Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir. 2003),
we will uphold an IJ’s determination when the discrepancies go to the “heart” of the
applicant’s claim, Capric v. Ashcroft, 355 F.3d 1075, 1090 (7th Cir. 2004). If the IJ
finds the petitioner’s testimony not to be credible, then the applicant must come
forward with a convincing explanation of the discrepancies or credible corroborating
evidence. Jamal-Daoud, 403 F.3d at 922.
Here, even if Lu is correct that the IJ should not have relied on the second
reason for her adverse credibility finding, he does not attempt to explain the other
two key discrepancies that formed the basis for the IJ’s finding. First, Lu never
accounts for the inconsistency between his sworn statement at the airport asserting
that he left China for financial reasons and his hearing testimony that he fled to
escape family-planning officials. An IJ may properly consider statements made at
an airport interview as long as they are reliable. Jamal-Daoud, 403 F.3d at 923;
Balogun v. Ashcroft, 374 F.3d 492, 504 (7th Cir. 2004). Second, Lu never explains
why he failed in his asylum application to mention his altercation with family-
planning officials. These discrepancies are not minor, and they go to the “heart” of
Lu’s claim. Because the IJ found Lu’s testimony incredible, he was obligated to
come forward with more. But as the IJ properly concluded, the letters that Lu
introduced as documentary evidence were insufficient to support his claim of past
persecution.
Lu also challenges the IJ’s ruling that 8 U.S.C. § 1101(a)(42)(B) does not
protect the unmarried men whose girlfriends are forced to have an abortion under
No. 05-2110 Page 4
China’s family-planning laws. Section 1101(a)(42)(B) provides protection for anyone
who has “has been forced to abort a pregnancy or to undergo involuntary
sterilization” or who has been “persecuted for failure or refusal to undergo such a
procedure.” In addition, “past persecution of one spouse can be established by
coerced abortion or sterilization of the other spouse.” Matter of C-Y-Z-, 21 I. & N.
Dec. 915, 917 (BIA 1997). But Lu has not claimed that he was married to his
girlfriend or that they engaged in any sort of marriage ceremony. See Zhang v.
Gonzales, 434 F.3d 993, 999 (7th Cir. 2006) (holding couples who engage in
traditional marriage ceremony are considered spouses for purposes of asylum, even
if marriage is not recognized by Chinese government). Because § 1101(a)(42)(B) has
not been expanded to include boyfriends of women who were forced to have an
abortion, Lu cannot establish past persecution based on his girlfriend’s abortion.
See Zhu v. Gonzales, ___ F.3d ___ , 2006 WL 2788499 *3-4 (7th Cir. Sept. 29, 2006).
The petition for review is DENIED.