Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-12-2006
Jiang v. BCIS
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2638
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"Jiang v. BCIS" (2006). 2006 Decisions. Paper 1274.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2638
JING XI JIANG,
Petitioner
v.
BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES
On Petition for Review from the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A77 354 182)
Argued March 29, 2006
Before: McKEE, BARRY, and VAN ANTWERPEN, Circuit Judges.
(Filed April 12, 2006)
Theodore N. Cox
Joshua E. Bardavid (Argued)
401 Broadway, Suite 701
New York, NY 10013
Counsel for Petitioner
Peter D. Keisler, Assistant Attorney General, Civil Division
Katherine A. Carey, Trial Attorney, Torts Branch (Argued)
U.S. Department of Justice
P.O. Box 888, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Petitioner Jing Xi Jiang is a native and citizen of the People’s Republic of China.
He petitions for review of the April 25, 2005 Order of the Board of Immigration Appeals
(“BIA”) denying his claims for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture (“CAT”). We will grant his petition for the
reasons set forth below.
I
Jiang entered the United States at Los Angeles on April 7, 2001 without a visa, and
was subsequently charged with removability. On May 29, 2001, he submitted an asylum
application. At a February 20, 2002 hearing before an Immigration Judge (“IJ”), Jiang
conceded removability but indicated that he would pursue asylum, withholding of
removal, and relief under the CAT. At his December 19, 2002 merits hearing, Jiang was
the sole witness. Jiang’s claims were based on his testimony that Chinese authorities
forced his wife to have an abortion and to submit to insertion of an intrauterine device
(“IUD”), as well as his belief that he would be fined and incarcerated if he returned to
China. A summary of the facts Jiang sought to establish follows.
Jiang married Dong Juanlan in China on March 27, 1997, and the couple had a son
on December 23, 1997. A month later, authorities forced his wife to have an IUD
inserted. Their son fell seriously ill in February 1998, and though he recovered, he failed
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to thrive. At age two, he could not speak or walk. Wishing to have another child, the
couple paid a private doctor to remove the IUD illegally, and in February 2000, Juanlan
was pregnant again. She hid from family planning officials at her aunt’s house; when she
failed to appear for a medical exam, authorities notified Jiang that he was required to
undergo a sterilization procedure. Rather than submit, Jiang joined his wife in hiding. In
August 2000, their son was hospitalized for pneumonia. The couple went to stay with
him at the hospital, where they attempted to maintain a low profile by remaining in their
son’s room.
Their efforts to remain anonymous unraveled on the morning of August 6, 2000,
their second day at the hospital. When Juanlan left the room to get some warm water to
wash up with, family planning officials who happened to be at the hospital spotted her
and apprehended her. They immediately forced her to undergo an abortion, and to submit
to insertion of a new IUD. Jiang learned what had happened from a nurse. The next day,
someone orally notified him that he was liable for a 3,000 RMB fine for violation of the
family planning policy, which he paid. Jiang remained in China until April 2001, when
he came to the United States. As related above, he became subject to the current
proceedings soon thereafter.
Following his merits hearing in Immigration Court in Philadelphia, Pennsylvania,
the IJ issued a written decision dated January 20, 2005 denying Jiang’s asylum,
withholding, and CAT claims, and ordering him removed to China. The IJ concluded that
inconsistencies and implausibilities in Jiang’s testimony rendered him not credible, and
that he had not corroborated parts of his testimony. Jiang appealed to the BIA, which
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affirmed without opinion in an April 25, 2005 Order pursuant to 8 C.F.R. § 1003.1(e)(4).
II
Jiang filed a timely petition for review in this Court, which has jurisdiction under 8
U.S.C. § 1252(a)(1). Where the BIA summarily affirms an order of the IJ, the Court of
Appeals reviews the IJ’s decision as if it had been rendered by the BIA. Gao v. Ashcroft,
299 F.3d 266, 271 (3d Cir. 2002). We review findings of fact, including adverse
credibility determinations, for substantial evidence. Id. at 272. “Under this standard, the
. . . adverse credibility determination must be upheld on review unless ‘any reasonable
adjudicator would be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C. §
1252(b)(4)(B)). With respect to asylum and withholding, “[w]hether an asylum applicant
has demonstrated past persecution or a well-founded fear of future persecution is a factual
determination . . .” also reviewed for substantial evidence. Id. We likewise review the
denial of CAT relief for substantial evidence. Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d
Cir. 2003).
III
Jiang advances three sets of claims. First, he argues that substantial evidence did
not support the IJ’s adverse credibility determination; second, that substantial evidence
did not support the denial of asylum and withholding of removal, and third, that
substantial evidence did not support the denial of CAT relief. Concluding that the IJ’s
credibility determination lacked substantial evidence, we will grant the petition.
A
Although we will defer on questions of credibility, the IJ must provide “specific,
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cogent reasons” for the finding. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en
banc) (quoting Gao, 299 F.3d at 276). “We look at an adverse credibility determination
to ensure that it was appropriately based on inconsistent statements, contradictory
evidences, and inherently improbable testimony in view of the background evidence on
country conditions.” Id. (citation, quotations marks, and ellipsis omitted). Thus, adverse
credibility determinations based merely on “speculation or conjecture” cannot stand. Id.
(quoting Gao, 299 F.3d at 272). The discrepancies that form the basis of an adverse
credibility determination must go to the heart of the alien’s claim. Gao, 299 F.3d at 272
(citing Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir. 1990)). In the present case,
the various aspects of the IJ’s credibility determination are either speculative, trifling, or
fail to reach the heart of Jiang’s claim. We treat them seriatim on our way to the
necessary conclusion that Jiang’s petition must be granted.
The IJ first took issue with a number of supporting documents offered by Jiang,
including his household registration. Jiang testified that his wife had conveyed the
documents to him through a friend and fellow villager who was traveling in the United
States. This friend called Jiang on his cell phone at his job in Pennsylvania, and arranged
a meeting with Jiang in Chinatown in New York City to give him the documents. Jiang
testified that he had not met the friend before, and did not know his name. Expressing
some suspicion that Jiang had obtained the documents fraudulently, the IJ noted that “the
one person who played a key role in . . . the chain of custody of these documents, is an
individual whom the respondent did not inquire as to his name or identity other than
learning that he was a friend of his wife.” The IJ did not, however, go so far as to find
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that the documents were fraudulent. Nor would he clearly have had a basis to do so on
this record. In the absence of a finding that the documents were falsified, the IJ’s use of
the documents against Jiang’s credibility amounts to speculation. See Dia, 353 F.3d at
249 (speculation an impermissible basis for adverse credibility determinations); see also,
Shtaro v. Gonzales, 435 F.3d 711, 716-17 (7th Cir. 2006) (mere skepticism as to
authenticity of documents, absent proper finding of fraud, not adequate to support adverse
credibility determination). The IJ also did not establish how the documents and any
problems they raise would go to the heart of Jiang’s claim that he suffered past
persecution as a result of the abortion and IUD insertion Chinese authorities forced on his
wife. We reject the IJ’s use of the documents to subvert Jiang’s claim.
The IJ also noted that Jiang’s household registration listing him and his wife as
members of the same household, was issued on May 15, 2001 – after he had left China.
The IJ concluded that it was implausible for authorities to issue the registration at a time
when Jiang, whom it listed as the head of the household, was unavailable. We cannot
identify a grounding in substantial evidence for this conclusion. Rather, we again note
that the IJ impermissibly speculated, this time in concluding that Chinese authorities
would not issue a fairly commonplace household registration without Jiang actually being
present. Because no record evidence supports this conclusion, we cannot defer to it. Cf.
Mulanga v. Ashcroft, 349 F.3d 123, 134 (3d Cir. 2003) (quoting Qiu v. Ashcroft, 329
F.3d 140, 154 (2d Cir. 2003), warning against “potentially mistaken, culturally based
assumptions about the existence and availability of documents.”).
The IJ also appears to have taken issue with Jiang’s failure to corroborate some of
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his testimony. “[T]he BIA may sometimes require otherwise-credible applicants to
supply corroborating evidence in order to meet their burden of proof.” Abdulai v.
Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001) (affording Chevron deference to BIA
corroboration rule set forth in In re S-M-J-, 21 I. & N. Dec. 722 (BIA 1997)). In accord
with S-M-J- and Abdulai, however, the IJ must render “(1) an identification of the facts
for which it is reasonable to expect corroboration; (2) an inquiry as to whether the
applicant has provided information corroborating the relevant facts; and, if he or she has
not, (3) an analysis of whether the applicant has adequately explained his or her failure to
do so.” Id. at 554 (quotation marks omitted). The IJ here plainly failed to perform this
analysis. Accordingly, the IJ’s unrealized quest for corroboration does not afford a basis
on which to conclude that Jiang has failed to meet his burden of proof.
The IJ also cast a jaundiced eye on other parts of Jiang’s account, including a
3,000 RMB fine imposed on him for violating family planning regulations that he did not
mention in his asylum application, the details of his employment history, and his proper
address in China. As with the documents Jiang presented, the IJ gave no sound reason to
disbelieve Jiang’s account of these aspects of his history. Furthermore, the IJ does not
appear to have relied on them in arriving at his adverse credibility determination. Finally,
none of these issues impugns the core of his asylum claim. Thus, they do not provide
substantial evidence for the IJ’s conclusions.
Accordingly, we conclude that the IJ’s adverse credibility determination in this
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case cannot stand because it is unsupported by substantial evidence.1
B
Jiang further challenges the IJ’s conclusions that he failed to meet his burden for
asylum, 8 U.S.C. § 1158, withholding of removal, 8 U.S.C. § 1231(b)(3)(A), and CAT
relief, 8 C.F.R. § 208.16(c)(2). Because the faulty adverse credibility determination was
the exclusive basis of the denial of asylum and withholding, and clearly considered in the
denial of CAT relief, the denials cannot stand. We will vacate the BIA’s Order, and
remand to that body for proceedings consistent with this opinion.2 See Liu v. Ashcroft,
372 F.3d 529, 534 (3d Cir. 2004) (citing I.N.S. v. Ventura, 537 U.S. 12 (2002), and
stating, “[w]e are obliged to remand to the agency to reconsider and reweigh the facts,
rather than attempting to undertake that task ourselves.”).
1
While our standard of review is deferential, proceedings in immigration court are not
an occasion for ferreting out any possible basis to disbelieve an applicant. See
Senathirajah v. I.N.S., 157 F.3d 210, 221 (3d Cir. 1998) (“The procedures for requesting
asylum and withholding of deportation are not a search for a justification to deport.”).
We reiterate, as we have countless times before, that adverse credibility determinations
must be supported by substantial evidence. E.g., Dia v. Ashcroft, 353 F.3d 228, 249 (3d
Cir. 2003) (en banc).
2
We note that the IJ’s decision, adopted by the BIA when it affirmed without opinion,
stated that “[i]f a review of this record were to determine that the respondent should be
found eligible as a matter of statute for asylum on a conditional basis, the Court would
not otherwise have exercised discretion adversely in this case.” We leave the ultimate
determination to the agency, as we must, but note that spouses of those forced to undergo
coercive abortions or birth control procedures are generally considered to have made out
persecution for purposes of asylum. See 8 U.S.C. § 1101(a)(42) (including those “forced
to abort a pregnancy or to undergo involuntary sterilization” in definition of “refugee”);
Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc) (past persecution of one
spouse can be shown by forced sterilization or abortion of partner spouse).
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IV
We have considered all other arguments made by the parties, and conclude that
further discussion is unwarranted. For the foregoing reasons, we will grant the petition.
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