Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-12-2008
Li v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5108
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-5108
___________
FENG LI,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
________________________
On Petition for Review from
the Board of Immigration Appeals
BIA No: A78-045-531
Immigration Judge: Miriam K. Mills
________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 22, 2008
Before: McKEE, FUENTES, and JORDAN, Circuit Judges.
Opinion Filed: August 12, 2008
___________
OPINION OF THE COURT
____________
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FUENTES, Circuit Judge.
Feng Li, a native and citizen of China, was smuggled into the United States in July
of 2000, in a van across the border from Mexico to Arizona. She was taken into custody
and issued with a notice to appear. Subsequently, Li applied for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). She bases her
claim for relief on persecution that she claims she experienced in China: being forced to
submit to an involuntary abortion and being threatened with the implantation of an
involuntary IUD. In support of her petition, she submitted, among other things, an
official abortion certificate. Once in the United States, she claims that she got pregnant
and had a child, whom she sent back to live in China. For the reasons that follow, the
petition will be denied.
The IJ originally denied her claim, finding her to be not credible because her
testimony was “weak” and indicating, among other things, that she did not provide any
medical evidence that she was pregnant, though she appeared to be so at her hearing.
(App. 227.) The IJ also referred to Li as a single woman.
On appeal, the BIA remanded the case, finding that the IJ did not sufficiently
articulate its reasons for its adverse credibility finding, and failed to analyze “the
consistency (or lack thereof) of [Li’s] testimony as compared to her written application.”
(App. 208.) Specifically, the BIA was troubled that the IJ did not explain why it found
there was no evidence that she was married, especially given that the IJ interrupted her
testimony at the hearing that she was married in a traditional ceremony that was not
2
registered with the civil authorities in China. In addition, the BIA criticized the IJ for
determining that Li’s credibility was negatively affected because she did not submit
evidence that she was pregnant at the time of the hearing. The BIA expressed confusion
about why Li needed to show additional proof, given that the IJ noted that she appeared to
be pregnant, and noted that her pregnancy did not seem to be related to her claim for
relief.
On remand, the IJ made another adverse credibility finding and again denied Li’s
claim. The IJ found that Li failed to have her abortion certificate authenticated, and failed
to provide any explanation of why no attempt was made to authenticate the document.
The IJ noted that the abortion certificate was cast into doubt by the State Department’s
Profile of Asylum Claims and Country Conditions Report for China from 1998 and 2004
(“Country Reports”), which confirms the existence of widespread document fabrication in
China and indicates that the United States is unaware of abortion certificates being issued
for involuntary abortions. The IJ also found that Li failed to prove that she gave birth to a
daughter in the United States. Accordingly, the IJ found that Li had failed to provide a
credible claim upon which relief could be granted.
Upon her second appeal to the BIA, the BIA affirmed the decision of the IJ,
finding that the record provided a basis to question the official abortion certificate and
birth of Li’s child.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252.
See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007). Li’s removal
3
proceedings occurred in Philadelphia, Pennsylvania so venue is proper in the Third
Circuit under 8 U.S.C. § 1252(b)(2).
Where, as here, the BIA issues a decision on the merits and not simply a summary
affirmance, we review the BIA’s, not the IJ’s, decision. Li v. Att’y Gen., 400 F.3d 157,
162 (3d Cir. 2005). The BIA is bound by the IJ’s factual determinations “including
findings as to the credibility of testimony” and reviews these findings only to determine
whether they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i). “The BIA’s conclusions
regarding evidence of past persecution and the well-founded fear of persecution are
findings of fact,” which we review under the deferential substantial evidence standard.
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under the deferential
substantial evidence standard, the BIA’s findings “must be upheld unless the evidence not
only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477,
484 (3d Cir. 2001) (citation omitted).
On appeal before us, Li asserts that the “birth of Li’s child is irrelevant to Li’s
asylum claim.” (Pet’r Br. 9.) We agree. The basis for Li’s claim for relief is that she
suffered past persecution in China, and any pregnancy in the United States has no bearing
on that claim.1 However, Li cannot prevail on her claim based on past persecution. As
noted by the IJ, Li failed, despite being represented by counsel, to get her official abortion
certificate authenticated, and, this document is further cast into doubt because the Country
1
To the extent that Li is seeking relief based on a fear of future persecution because of
the birth of a child in the United States, she has not adequately supported that claim.
4
Reports explain that the U.S. Embassy and Consulates General are not aware of abortion
certificates being issued for involuntary abortions. Accordingly, we conclude that the
BIA’s decision is supported by substantial evidence, and, we will deny the petition.
5