Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-20-2008
Huang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4434
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4434
YI QING HUANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of
The Board of Immigration Appeals
Immigration Judge: Honorable Henry S. Dogin
(No. A97-950-010)
Submitted Under Third Circuit LAR 34.1(a)
February 8, 2008
Before: MCKEE, AMBRO and ALDISERT, Circuit Judges
(Opinion filed: February 20, 2008)
OPINION
AMBRO, Circuit Judge
Yi Qing Huang, a native and citizen of China, petitions for review of an order of
the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final
order of removal. For the reasons set forth below, we will deny the petition in part and
remand in part. As we write for the parties principally, our reference to facts is truncated.
I
Huang arrived in the United States in March 2004 without a valid entry document.
He conceded removability in subsequent proceedings before the IJ, but applied for
political asylum, withholding of removal, and relief under the Convention Against
Torture. Huang asserted that he would be persecuted if he returned to China because he
had violated strict Chinese family planning laws.
The IJ held a hearing in January 2005. He concluded that Huang was not credible,
denied his application in all respects, and designated his application for asylum as
frivolous under 8 U.S.C. § 1158(d)(6). Such a designation makes Huang permanently
ineligible for asylum.
Huang appealed to the BIA. It affirmed the opinion of the IJ, explicitly adopting
its reasoning.
Huang timely petitioned for review to the United States Court of Appeals for the
Second Circuit, which transferred the case to our Court because the IJ proceedings were
completed in New Jersey. Huang argues that the IJ erred in finding him not credible and
in concluding that his application for asylum was frivolous.
II
2
The BIA had jurisdiction over Huang’s appeal under 8 C.F.R. § 1003.1(b)(3). We
have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). We
generally review the decision of the BIA, but where, as here, the BIA adopts the opinion
of the IJ, we review the IJ’s decision directly. Voci v. Gonzales, 409 F.3d 607, 612-13
(3d Cir. 2005). We review credibility determinations for substantial evidence. He Chun
Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). “Under this deferential standard of
review, we must uphold the credibility determination of the BIA or IJ unless ‘any
reasonable adjudicator would be compelled to conclude to the contrary.’” Id. (quoting 8
U.S.C. § 1252(b)(4)(B)). However, we may reverse a credibility determination if it is not
grounded in the record. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).
III
The IJ made a number of observations about the quality of the evidence and
testimony provided by Huang. First, he found implausible Huang’s testimony regarding
the alleged 1993 abortion. Huang testified that his wife, after giving birth to a child in
1990, was fitted with a contraceptive device by family planning authorities but had it
removed at a private clinic, resulting in a pregnancy. He also testified that, though his
wife knew that the device had been removed and had missed her period, she nonetheless
appeared for an examination by family planning authorities, resulting in an abortion. The
IJ found this version of events implausible, asking why Huang’s wife did not hide rather
than “put[] her head into the mouth of the lion.”
3
Second, the IJ pointed to the investigation performed by an investigator for the
Department of Homeland Security (“DHS”) based at the consulate in Guangzhou, China.
That investigation indicated that the abortion certificate presented by Huang regarding the
alleged 1993 abortion was not issued by the hospital at which he claimed the abortion was
performed, but instead was fabricated.
Third, the IJ noted that the DHS investigation also contradicted Huang’s testimony
regarding an alleged abortion in 2004 (terminating the alleged 2003 pregnancy). The
report of that investigation concluded that the abortion certificate and the assessment of a
fine paid to Chinese authorities submitted as evidence of an 2004 abortion were
fabricated.
Finally, the IJ highlighted a discrepancy between Huang’s testimony at the
removal hearing and his statements at a credible-fear interview shortly after arriving in
the United States. This discrepancy pertained to the alleged pregnancy in 2003. The IJ
noted that Huang stated at the credible-fear interview that his wife fled only after hearing
a rumor that police were coming to arrest her, whereas he claimed at the IJ hearing that
she fled as soon as she knew she was pregnant.
The IJ made an adverse credibility finding on the basis of these considerations.
Huang argues that this was error because (1) the DHS investigation was unreliable
inasmuch as it might reflect a desire of the Chinese government to harm those who apply
for asylum in the United States; (2) the discrepancies between Huang’s testimony at the
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credible-fear interview and at the IJ hearing likely are the result of a poor summary by the
asylum officer (who was not present for cross-examination) because Huang could not
have said that his wife waited until the police were coming before fleeing; and (3) that it
was not implausible for Huang’s wife to have gone to the 1993 appointment with Chinese
officials even though she had good reason to believe she was pregnant.
Huang’s arguments are weakened by his failure to explain the discrepancies in his
testimony. He was given the opportunity by the IJ to reject the official summary of his
testimony at the credible-fear interview. However, when asked whether he had given the
summarized testimony at that interview, Huang merely stated “I do not recall.” At no
time did Huang explain the discrepancy between his testimony at the IJ hearing and the
credible-fear interview.
Nor does Huang explain why no reasonable adjudicator could find implausible his
claim that his wife went to an appointment with the state authorities even after having
reason to believe she was pregnant. The implausibility of this alleged decision by
Huang’s wife may not have been enough alone to support an incredibility finding, but, in
the context of other inconsistencies and flaws in the evidence offered, the IJ was not
unreasonable to find the account far-fetched.
The DHS investigation greatly undermines Huang’s credibility. Unlike the report
challenged in Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003), the report in this case
was created by a DHS investigator who had the ability to evaluate the credibility of the
5
information she reported. Accordingly, the DHS report does not suffer from hearsay
problems sufficient to render it unreliable for evaluating credibility, and the IJ was correct
to consider it. That said, we are troubled by Huang’s suggestion that investigations into
Chinese hospital records are inherently untrustworthy because of animus on the part of
Chinese officials toward asylum seekers. However, he presents no evidence suggesting
that such animus was a factor in the investigation into his purported documentation. Nor
does he identify record evidence indicating that this is a prevalent problem, such as a
report from the State Department describing a tendency of Chinese hospital officials to
deny the validity of purported records of abortions.
Accordingly, we conclude that a reasonable adjudicator could have made an
adverse credibility finding against Huang.1 Because we do not disturb the IJ’s adverse
credibility finding, we affirm the denial of asylum. We also affirm the denial of
withholding of removal because Huang necessarily fails to meet its more stringent
standard. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003).2
1
The Government argues that many of the specific arguments made by Huang were
not presented to the BIA. This raises a close question, since the brief submitted by Huang
to the BIA appears to have been vague boilerplate intended to preserve as many
arguments as possible for a review petition to our Court. This brief may not have put the
BIA sufficiently on notice about Huang’s specific arguments to exhaust each of those
contentions. However, we need not decide that question because at least some of
Huang’s arguments are properly before us and we would deny his petition for review
even assuming that we may consider all of these arguments.
2
Huang does not argue that the BIA erred in upholding the IJ’s decision to deny
relief under the Convention Against Torture.
6
IV
Huang asserts that the IJ erred in concluding that his asylum application was
frivolous. The Government claims that we lack jurisdiction over this question because
Huang did not raise it before the BIA. However, he did argue that the IJ’s adverse
credibility finding and resulting denial of asylum were incorrect. These claims implicitly
challenge the IJ’s finding that Huang’s asylum application was frivolous. They were an
“effort, however insufficient, to place the Board on notice of a straightforward issue
being raised on appeal.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005) (citing
Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004)); see also Zara v. Ashcroft, 383
F.3d 927, 931 (9th Cir. 2004) (finding exhaustion where petitioner gave the BIA “the
opportunity to resolve [the] controversy or correct its own errors before judicial
intervention”). Therefore, Huang sufficiently exhausted this claim.
We recently discussed the high standard for a frivolousness conclusion in Luciana
v. Attorney General, 502 F.3d 273, 281 (3d Cir. 2007). In light of that precedent, we
solicited additional briefing from the parties. The Government requested that the BIA
have the first opportunity to evaluate this case under Luciana if we concluded that we
have jurisdiction over the frivolousness challenge. We will defer to that request.
*****
We deny in part the petition for review, and remand in part for consideration of the
frivolousness finding under Luciana. This panel retains jurisdiction pending BIA review
7
of that finding.
8