Jianli Chen v. Holder

United States Court of Appeals
For the First Circuit

No. 11-1925

JIANLI CHEN,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

No. 12-1250

JIANLI CHEN AND MIN FEN HU,

Petitioners,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITIONS FOR REVIEW OF ORDERS OF THE

BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Selya and Stahl, Circuit Judges.

Gang Zhou on brief for petitioners.
 Tony West, Assistant Attorney General, Civil Division, Stuart
F. Delery, Acting Assistant Attorney General, Richard M. Evans,
Assistant Director, Office of Immigration Litigation, and Kevin J.
Conway, Attorney, on brief for respondent.

December 21, 2012
 SELYA, Circuit Judge. The petitioners, Jianli Chen and

her husband, Min Fen Hu, are Chinese nationals. They seek judicial

review of the final orders of the Board of Immigration Appeals

(BIA) (i) affirming the denial of their applications for asylum,

withholding of removal, and relief under the United Nations

Convention Against Torture (CAT); and (ii) denying their motion for

reconsideration. Chen appears both as an applicant for relief in

her own right and as a derivative beneficiary of her husband's

application. After careful consideration, we leave the BIA's

orders intact.

I. BACKGROUND

Hu entered the United States without inspection on

December 1, 2005. Chen followed suit on March 8, 2006. Federal

authorities subsequently placed them in removal proceedings. See

8 U.S.C. §§ 1182(a)(6)(A)(i), 1229a(a)(2). Both petitioners

conceded removability and cross-applied for asylum, withholding of

removal, and CAT relief. Their cases were consolidated for hearing

before an immigration judge (IJ).

We rehearse the facts in line with the petitioners'

direct testimony. Chen and Hu were married in China on November

14, 2001. On January 13, 2003, Chen gave birth to their first

child (a daughter). Approximately two months later, government

functionaries directed the implantation of an intrauterine device

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(IUD) in Chen, pursuant to China's coercive population control

policy.

Chen and Hu went through a sham divorce in order to avoid

the annual pregnancy checks required for all married women. Chen

then asked a private physician to remove the IUD so that she could

bear a second child. She became pregnant and, to conceal her

condition from the authorities, she hid at her uncle's home.

Despite this professed need for secrecy, the petitioners traveled

openly to Thailand for a vacation, securing visas and passing

through customs.

During this pregnancy, Chen skipped the mandatory

gynecological examinations routinely scheduled by the municipal

family planning office. Nevertheless, she voluntarily underwent

two ultrasound examinations, including one at a provincial hospital

run by the Chinese government.

When family planning officials concluded that Chen was

trying to dodge the population control policy, they took her mother

into custody and Chen was informed that her mother would be held

indefinitely unless Chen allowed a pregnancy check to be performed.

Chen capitulated: on August 23, 2005 (shortly after returning from

the Thailand vacation), she was examined, found to be pregnant, and

subjected to a forced abortion.

In mid-October, Hu left China. He flew from Beijing to

Paris and then traveled to Venezuela, where he remained for three

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days. Thereafter, he spent two months traveling to the United

States by boat, vehicle, and on foot. Almost immediately after his

arrival, the Department of Homeland Security commenced removal

proceedings against him in the New York immigration court.

Chen left China three days after Hu. She remained in

Venezuela for five months before traveling to the United States

through Mexico. She arrived in March of 2006 and, in short order,

removal proceedings were instituted against her.

On May 17, 2006, the petitioners remarried in the United

States. Roughly two-and-one-half years later, Chen gave birth to

a second child (a son) in New York.

In the removal proceedings, the petitioners conceded the

foundational factual allegations but insisted that, if repatriated,

they would be subjected to involuntary sterilization. When they

moved to Springfield, Massachusetts, the cases were transferred to

Boston.

Following an evidentiary hearing, the IJ determined that

the petitioners' testimony was not believable and that, therefore,

their factual account could not be credited. With these

determinations in mind, the IJ concluded that the petitioners had

failed to establish either past persecution or a well-founded fear

of future persecution. Consequently, she rejected the petitioners'

cross-applications for relief and ordered them removed to China.

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 The petitioners appealed to the BIA, which upheld the

IJ's adverse credibility determinations and affirmed the IJ's

rulings save for a perceived need to remand Hu's asylum application

for findings as to whether he suffered past persecution. The

petitioners moved for reconsideration, arguing that the BIA had

improvidently fashioned its own factual findings in order to uphold

the adverse credibility determinations. The BIA rebuffed this

argument, stating that its prior decision did not "incorporate[] or

rel[y] . . . on any improper factfinding."

In the same motion, the petitioners sought

reconsideration of the remand order. The BIA reconsidered this

issue and withdrew the remand order, accepting Hu's representation

that he did not wish to pursue the issue of past persecution.

The petitioners have now sought judicial review.1 We

have jurisdiction under 8 U.S.C. § 1252(a)(1).

II. ANALYSIS

Our analysis necessarily begins with the standard of

review, which is complicated here because the petitioners have

challenged both the BIA's original decision and its partial denial

of their motion for reconsideration. Withal, the issues are

essentially the same and, for ease in exposition, we assume,

1
Chen filed a petition for judicial review while the motion
for reconsideration was pending before the BIA. Chen and Hu
jointly filed a second petition after the BIA disposed of the
motion for reconsideration. We have consolidated the two petitions
and it is not necessary for us to distinguish between them.

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without deciding, that the more petitioner-friendly substantial

evidence standard applies to those issues.2

The substantial evidence standard pertains to the review

of factual findings, including credibility determinations. Segran

v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007). Viewing the evidence

through this deferential lens, we will reverse only if the record

is such as to compel a reasonable factfinder to reach a contrary

determination. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir. 2007).

In other words, findings of fact will stand as long as they are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992) (internal quotation marks omitted).

Rulings of law are a different matter. Such rulings

engender de novo review, but with some deference to the agency's

reasonable interpretation of statutes and regulations that fall

within its sphere of authority. See Seng v. Holder, 584 F.3d 13,

17 (1st Cir. 2009); see also Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

In the immigration context, judicial review ordinarily

focuses on the BIA's decision. See, e.g., Seng, 584 F.3d at 17.

But where, as here, the BIA adopts portions of the IJ's findings

while adding its own gloss, we review both the IJ's and the BIA's

2
The standard of review applicable to the denial of a motion
for reconsideration is abuse of discretion. See INS v. Doherty,
502 U.S. 314, 323-24 (1992).

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decisions as a unit. Villa-Londono v. Holder, 600 F.3d 21, 23 (1st

Cir. 2010).

To qualify for asylum, an alien must establish that he is

a refugee within the meaning of 8 U.S.C. § 1101(a)(42). Carrying

this burden requires a showing of either past persecution or a

well-founded fear of future persecution. See id. § 1101(a)(42)(A);

see also Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir. 2009).

The immigration statutes take special account of persons

who are forced to flee their homeland because of coercive family

planning policies. The law provides in pertinent part that the

term "refugee" shall include "a person who has been forced" through

government action "to abort a pregnancy or to undergo involuntary

sterilization." 8 U.S.C. § 1101(a)(42)(B).

An asylum-seeker's testimony alone, if credible, may

suffice to carry the burden of establishing refugee status. See

Bebri v. Mukasey, 545 F.3d 47, 50 (1st Cir. 2008). But the

factfinder need not take an asylum-seeker's testimony at face

value; rather, the factfinder may discount such testimony, or

disregard it entirely, if she reasonably deems it to be

"speculative or unworthy of credence." Id.

Against this backdrop, we turn to the case at hand.

There is no question that the petitioners' account, if true in all

its particulars, could support a claim for asylum. The problem is

that the factfinder — the IJ — did not believe the petitioners'

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story; and if that story is set to one side, the record contains no

basis for granting asylum. Thus, our inquiry focuses on the

propriety of the adverse credibility determinations.

Before undertaking this inquiry, we pause to note that

the IJ's adverse credibility determinations are governed by the

provisions of the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 302

(2005), codified at 8 U.S.C. § 1158(b)(1)(B)(iii). This statute

provides that a factfinder

may base a credibility determination on the
demeanor, candor, or responsiveness of the
applicant or witness, the inherent
plausibility of the applicant's or witness's
account, the consistency between the
applicant's or witness's written and oral
statements (whenever made and whether or not
under oath, and considering the circumstances
under which the statements were made), the
internal consistency of each such statement,
the consistency of such statements with other
evidence of record (including the reports of
the Department of State on country
conditions), and any inaccuracies or
falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant's
claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii).3 We proceed to evaluate the adverse

credibility determinations under these guidelines and in light of

the totality of the circumstances. See Rivas-Mira, 556 F.3d at 4.

3
This standard is less petitioner-friendly than its
predecessor, which demanded that an adverse credibility
determination be based on inconsistencies that "pertain to facts
central to the merits of the alien's claims." Bebri, 545 F.3d at
50 (quoting Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir. 2006)).

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 The petitioners advance two broad claims of error with

respect to the denial of asylum. Their first attack is procedural;

it posits that the BIA engaged in improper factfinding to sustain

the adverse credibility determinations. Their second attack is

substantive; it posits that both the IJ and the BIA arbitrarily

denigrated their testimony and, thus, erred in rejecting their

claims for asylum based on a well-founded fear of future

persecution. We examine these challenges sequentially. We then

address some miscellaneous matters.

A. The Procedural Claim.

To place into perspective the petitioners' argument that

the BIA overstepped its bounds by engaging in independent

factfinding, it is necessary to understand the relative roles of

the IJ and the BIA in the decisional process. The IJ has the

front-line duty of finding the facts. Her factual findings,

including credibility determinations, are reviewed by the BIA only

to ensure that they are not clearly erroneous. See 8 C.F.R.

§ 1003.1(d)(3)(i). Although the BIA may take "administrative

notice of commonly known facts such as current events or the

contents of official documents," it is prohibited from "engag[ing]

in factfinding in the course of deciding appeals." Id.

§ 1003.1(d)(3)(iv). The petitioners say that, in this instance,

the BIA usurped the role of the IJ.

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 At the outset, the petitioners take issue with the BIA's

statement that the IJ found their testimony "internally

inconsistent." The IJ, they say, never made any finding of

internal inconsistency.

This hair-splitting is unpersuasive. Although the IJ did

not use the phrase "internally inconsistent" to describe the

petitioners' testimony, her findings justify the use of that

description. In her analysis, the IJ refers to "diverging

answers," "discrepancy," and "dissonance" in the petitioners'

testimony. These findings fit comfortably under the carapace of

internal inconsistency.

Let us be perfectly clear. Although the BIA may not

engage in independent factfinding, it has the prerogative — indeed,

the duty — of examining the basis for, and then synthesizing and

analyzing, the IJ's findings. See Rotinsulu v. Mukasey, 515 F.3d

68, 73 (1st Cir. 2008). This multifaceted role is not meant to be

robotic. The BIA is not bound simply to parrot the precise

language used by the IJ but, rather, may use its own vocabulary.

In pursuing this claim of procedural error, the

petitioners also assail the BIA's statement that Hu's credibility

was suspect because he denied that he was ever questioned by border

patrol agents. The premise of the petitioners' attack is the

assumption that the BIA could not reasonably rely on Hu's I-213

form because that form does not indicate on its face whether a

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Chinese-language interpreter capable of a dialect understandable to

Hu was provided.4

We reject this contention. Strict rules of evidence do

not apply in immigration proceedings. See Henry v. INS, 74 F.3d 1,

6 (1st Cir. 1996). It is normally enough if the IJ reasonably

finds a proffered piece of evidence to be reliable and its use to

be fundamentally fair. See Yongo v. INS, 355 F.3d 27, 30 (1st Cir.

2004). The I-213 form at issue here satisfies these criteria, and

the IJ found as much.

At the hearing before the IJ, Hu at first denied speaking

to the border patrol agents at all. He then retreated to the

position that he had answered only a few routine questions. The IJ

credited the I-213 form, stating that it was "sufficiently reliable

on [its] face" and "was compiled with the aid of a telephonic

interpreter." These findings are supported by the record.

Relatedly, the petitioners maintain that the BIA

improperly supplemented the IJ's findings with respect to the

likelihood of forced sterilization in China. Specifically, they

point to the BIA's statement that they "have not shown that having

two children born almost six years apart violates their village's

family planning policy." They overlook, however, that this

4
An I-213 form is the form customarily prepared by border
patrol agents incident to an alien's apprehension at the border.

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statement is followed by a citation to a designated portion of the

IJ's decision and is simply a paraphrasing of the IJ's language.

For these reasons, the petitioners' procedural claim

fails. Simply put, the BIA did not engage in independent

factfinding.

B. The Substantive Claim.

We turn next to the petitioners' substantive claim of

error, which frontally challenges the adverse credibility

determinations. The petitioners start by questioning the agency's

reliance on omissions from their testimony. They insist that they

were entitled to, but did not receive, an opportunity to explain

any supposed omissions. Cf. Zeru v. Gonzales, 503 F.3d 59, 69-70

(1st Cir. 2007) ("An IJ's credibility determinations demand

deference where (1) the discrepancies and omissions described by

the IJ are actually present in the record; (2) those discrepancies

and omissions provide specific and cogent reasons to conclude that

the petitioners provided incredible testimony regarding facts

central to the merits of the asylum claim; and (3) petitioners do

not provide a convincing explanation for the discrepancies and

omissions.").

This argument is jejune. The petitioners have had

multiple opportunities, such as in their briefing to the BIA and to

this court, to explain the omissions. Despite these multiple

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opportunities, the explanations that they have advanced are

unconvincing.

This brings us to the petitioners' central theme: that

the adverse credibility determinations are clearly erroneous. The

critical question, of course, is whether those determinations are

supported by substantial evidence in the record as a whole. See

Pan, 489 F.3d at 85. We answer this question affirmatively.

A trial judge sees and hears the witnesses at first hand

and is in a unique position to evaluate their credibility. In the

absence of special circumstances — not present here — reviewing

courts ordinarily should defer to such on-the-spot judgments. See,

e.g., Ang v. Gonzales, 430 F.3d 50, 57 (1st Cir. 2005); Aguilar-

Solis v. INS, 168 F.3d 565, 570-71 (1st Cir. 1999). This is

especially true when, as in this case, the trial judge fortifies

her findings with particularized observations as to demeanor and

examples of inconsistencies and implausibilities. See Olujoke v.

Gonzales, 411 F.3d 16, 21-22 (1st Cir. 2005); Laurent v. Ashcroft,

359 F.3d 59, 64 (1st Cir. 2004). We illustrate briefly.

Here, the IJ observed that both petitioners were "evasive

and equivocal during certain crucial portions of their testimony;"

that both "testified in a furtive and incomplete manner when asked

about their infiltration into the United States;" and that both

"were non-responsive to important queries." Chen, in particular,

"appeared to stonewall the fact-finding process." Although it is

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difficult to assess demeanor-based findings from a paper record, we

discern nothing in the hearing transcript that undercuts the IJ's

detailed observations.

The IJ also identified a litany of inconsistencies and

implausibilities in the petitioners' tale. For example, Chen

testified that she hid at her uncle's house in order to elude

detection by Chinese government officials, yet she proceeded to

leave this safe haven to take an eight-day vacation with Hu in

Thailand. Further, the IJ remarked Chen's "opaque and

inconsistent" testimony as to why she scheduled an ultrasound

examination at a government-run hospital instead of an available

private facility.5

The IJ had obvious difficulty in swallowing Chen's

testimony about her forced abortion. Chen originally testified

inconsistently as to whether the abortion was or was not performed

on the same day that a pregnancy check revealed her gravidity

(August 23, 2005). The IJ reasonably concluded that a discrepancy

relating to so central a fact was telling.

Similar inconsistencies plagued Chen's description of the

logistics of her entry into the United States. She testified at

5
Chen initially testified that the hospital was not
interested in enforcing China's one-child policy; she later
testified that she went to the government-run hospital because
everyone else went there. The IJ supportably found that neither
answer sufficiently explained why Chen would voluntarily repair to
a government-run facility, thereby risking detection of her
pregnancy by family planning officials.

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one point that she agreed to pay a smuggler $70,000, giving him

$1,000 and promising to pay the balance from her earnings in the

United States. She subsequently testified, however, that Hu's

father sold one of his homes in China to pay the smuggler's fee.

Although the petitioners have attempted to provide an explanation

for this discrepancy, the IJ concluded that these "starkly

different answers" were irreconcilable, and we cannot say that the

evidence would compel a reasonable factfinder to reach a contrary

conclusion.

The IJ identified comparable inconsistencies and

implausibilities in Hu's testimony, particularly with respect to

his entrance into the United States and his subsequent

apprehension. For example, when asked if border patrol agents

interviewed him on December 2, 2005, Hu initially claimed that the

agents had not asked him any questions. Later on, he backtracked,

stating that the agents had only asked him about his parents, his

geographic origins, and his age. The IJ reasonably concluded that

both of these answers were false. As she pointed out, the veracity

of this account was called into serious question by the broader

range of information contained in his I-213 form.

This is part of a larger picture. The IJ's doubts about

the petitioners' credibility were compounded by a painstaking

comparison of their hearing testimony with both their written

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applications for asylum and their I-213 forms. The IJ compiled a

long list of such discrepancies. We offer a sampling.

C Despite their hearing testimony, neither Hu nor

Chen asserted in their I-213 forms that they had

any children.

C Chen's asylum application and hearing testimony

were materially inconsistent as to when she

learned of China's one-child policy.

C Chen's asylum application states that on one

occasion family planning officials came to her

parents' home and questioned her mother about

Chen's whereabouts and, on another occasion,

barged into her parents' house to search for her.

Chen's testimony before the IJ did not mention

either of these alleged incidents.

C Chen's I-213 form memorializes that she told the

border patrol agents that she entered the United

States to seek employment and did not fear

returning to China. She testified, however, that

she came to the United States to escape China's

coercive population control policy and that she

feared returning there.

The record contains other inconsistencies as well. For

instance, Hu's testimony during the hearing as to the route he took

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in journeying from China to the United States did not match the

description of his journey contained in his I-213 form (omitting,

among other things, any mention of his stop in Cuba).

To cinch matters, the record is pockmarked with

implausibilities. For example, the petitioners never

satisfactorily explained why they would opt for a holiday in

Thailand, risking official scrutiny, if Chen was hiding from the

government. By like token, they never satisfactorily explained

either Chen's decision to use a government-run hospital instead of

an available private facility or why they traveled separately to

reach the United States and took different routes in doing so. The

IJ was entitled to give weight to the absence of plausible

explanations. See, e.g., Bebri, 545 F.3d at 49; Aguilar-Solis, 168

F.3d at 571.

While some of the discrepancies identified by the IJ may

be picayune if viewed in isolation, the record as a whole presents

a picture consistent with the IJ's adverse credibility

determinations. Fairly viewed, this may well be a situation in

which the whole is greater than the sum of its parts. See Pan, 489

F.3d at 86 (explaining that even though inconsistencies "may seem

like small potatoes," their cumulative effect may be great); cf.

Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)

(acknowledging that the "sum of an evidentiary presentation may

well be greater than its constituent parts"). In the last

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analysis, it is for the IJ, not this court, to decide whether

omissions are significant, whether inconsistencies are telling, and

whether implausibilities should be accorded decretory significance.

See Kho v. Keisler, 505 F.3d 50, 56 (1st Cir. 2007) (explaining

that "[t]he court reviews agency proceedings but does not act as a

finder of fact itself").

The petitioners further complain that the agency relied

on unfavorable portions of documentary exhibits, including the 2007

U.S. Department of State Country Report on Human Rights Practices

in China and the Lianjiang County Family-Planning Information

Promotion Q&A for General Public. As the petitioners see it, the

agency should have focused on more favorable reports or, at least,

on more favorable passages from the cited reports.

This plaint is unfounded. Just as a factfinder may sift

through conflicting testimony, accepting some testimony and

rejecting other testimony, so too may a factfinder sift through

relevant documents, determining which documents are persuasive and

which statements within a particular document should be given

weight. See Pan, 489 F.3d at 87 & n.6 (citing Martinez v. INS, 970

F.2d 973, 975 (1st Cir. 1992)). In such matters, a court must

defer to the factfinder's reasonable choices.

There is one loose end. The petitioners seem to suggest,

albeit obliquely, that the agency erred in concluding that they had

not established a well-founded fear of persecution based on the

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birth of their second child in the United States. This suggestion

lacks force. As the Second Circuit explained, the BIA

has declined to construe the statutory term
"refugee" to exclude or to include all Chinese
nationals who have fathered or given birth to
more than one child. Rather, it has
determined that a case-by-case review is
necessary to identify which Chinese nationals
with two or more children demonstrate a fear
of future persecution that is both
subjectively genuine and objectively
reasonable.

Shao v. Mukasey, 546 F.3d 138, 142 (2d Cir. 2008).

In this instance, documentary evidence cited by the IJ

contradicts the claim of a well-founded fear of persecution based

on the birth of the petitioners' second child in the United States.

For example, the IJ supportably relied on the 2007 U.S. Department

of State China Profile of Asylum Claims and Country Conditions

¶ 112, which states in pertinent part that, with respect to the

petitioners' home province, "children born abroad . . . are not

considered as permanent residents of China, and therefore are not

counted against the number of children allowed under China's family

planning law." Here, too, the burden of persuasion was on the

petitioners, and the record as a whole does not compel a contrary

conclusion.

We have said enough about the asylum claims. Given the

myriad inconsistencies in the petitioners' testimony, the

implausibilities inherent in their account, their failure to offer

convincing explanations of seeming contradictions, and the IJ's

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detailed demeanor-related observations, we hold that the adverse

credibility determinations are supported by substantial evidence.

This holding, in turn, defeats the asylum claims. Stripped of the

petitioners' undependable testimony, the record contains no

evidence sufficient to ground the petitioners' professed fear of

future persecution: a factfinder cannot reliably tell what really

happened in China before the petitioners fled, nor can a factfinder

reliably forecast what may await them upon their repatriation. The

petitioners have the burden of proof and, on this scumbled record,

we cannot say that the agency erred in concluding that they failed

to carry it.

C. Other Relief.

We need not linger long over the petitioners' claims for

withholding of removal. Claims for asylum and claims for

withholding of removal have similar elements, but the quantum of

proof required for the latter is more demanding. Compare 8 U.S.C.

§ 1101(a)(42)(A) and id. § 1158(b), with id. § 1231(b)(3) and 8

C.F.R. § 208.16(b). Thus, an alien who cannot establish the

elements of an asylum claim cannot prevail on a counterpart claim

for withholding of removal. See Ying Jin Lin v. Holder, 561 F.3d

68, 74 (1st Cir. 2009); Segran, 511 F.3d at 7. That principle

applies here.

This leaves the petitioners' CAT claims. It is settled

beyond hope of contradiction that claims perfunctorily advanced in

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skeletal fashion are deemed abandoned. See, e.g., Jiang v.

Gonzales, 474 F.3d 25, 32 (1st Cir. 2007); United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Because the petitioners

have offered no developed argumentation in support of their CAT

claims, we reject them out of hand.

III. CONCLUSION

We need go no further. The petitions for judicial review

are denied.

So Ordered.

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