United States Court of Appeals
For the First Circuit
No. 04-2623
XUE XIANG CHEN,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States; et al.
Respondents.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Lipez, Circuit Judges.
Douglas B. Payne on brief for petitioner.
George B. Henderson, II, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief for
respondents.
August 12, 2005
LYNCH, Circuit Judge. The petitioner, Xue Xiang Chen,
from the People's Republic of China, unlawfully entered the United
States on June 17, 2001, and applied for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).
The application was based on Chen's allegations that the government
forced his girlfriend to have an abortion in China in 1998.
The Immigration Judge (IJ) found him not credible and
denied him the requested relief. The Board of Immigration Appeals
(BIA) adopted and affirmed the IJ's decision. It also added an
additional, independent ground for denial. The BIA reasoned that
even assuming Chen was credible, he was not married to his
girlfriend, and thus was not eligible for this type of refugee
status: the BIA has interpreted the scope of the relevant statutory
provision, Section 601 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), which amended 8
U.S.C. § 1101(a)(42)(B), to limit eligibility for asylum to persons
forced to undergo abortions or sterilization procedures themselves
and to their spouses.1 See Ma v. Ashcroft, 361 F.3d 553, 554 (9th
Cir. 2004); In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997). Chen
argues that it is irrational for the BIA to permit spouses to apply
1
IIRIRA added to the definition of "refugee" the following: "a
person who 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 or for other resistance to
a coercive population control program." 8 U.S.C. § 1101(a)(42)(B).
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for asylum, but not boyfriends or girlfriends. There is an active
circuit split on this question of law.2
We acknowledge but do not weigh in on the question. That
is because we affirm on the ground of the adverse credibility
finding,3 which was also adopted and affirmed by the BIA, and for
which there is ample evidence.4
2
For example, compare Ma v. Ashcroft, 361 F.3d 553, 561 (9th Cir.
2004) (holding 8 U.S.C. § 1101(a)(42)(B) applicable to "husbands
whose marriages would be legally recognized, but for China's
coercive family planning policies, and not only to husbands whose
marriages are recognized by Chinese authorities") with Chen v.
Ashcroft, 381 F.3d 221, 226-27, 229 (3d Cir. 2004) (giving Chevron
deference to the BIA's "decision not to extend C-Y-Z- to unmarried
partners" but dubious about the BIA's reasoning extending statutory
protection to spouse who was not forced to undergo abortion or
sterilization). See also Yuan v. U.S. Dep't of Justice, No. 02-
4632-AG, 2005 WL 1745200, at *4 (2d Cir. July 26, 2005) (expressing
doubt as to BIA's reasoning in C-Y-Z-). The Second Circuit has
recently remanded three cases raising the issue of the eligibility
of boyfriends and fiancés under 8 U.S.C. § 1101(a)(42)(B) to the
BIA so that the BIA can "more precisely explain its rationale"
behind its construction and define if and when non-married partners
may be eligible for asylum. Lin v. U.S. Dep't of Justice, No. 02-
4611, 2005 WL 1791996, at *5 (2d Cir. July 29, 2005).
3
Chen's petition for review is solely focused on his claim for
asylum, challenging the credibility finding and the BIA's
interpretation of 8 U.S.C. § 1101(a)(42)(B). He has offered no
arguments with respect to his claims for withholding of removal or
protection under the CAT. He has therefore waived any challenge to
the BIA's denial of these claims. See Ali v. Gonzales, 401 F.3d
11, 14 n.3 (1st Cir. 2005).
4
Alberto Gonzales was sworn in as Attorney General of the
United States on February 3, 2005. We have substituted him for
John Ashcroft, previous holder of that office, as the lead
respondent. See Fed. R. App. P. 43(c)(2).
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I.
In his application for asylum, Chen recounted the
following story. Chen lived with his parents in their house in
Tantou Town, which is in Changle City in Fujian Province. On July
7, 1997, three public health officials saw Yung Liu, Chen's
girlfriend, and wanted "to detain her for a pregnancy checkup." As
the officials struggled with Liu, Chen attempted to intervene, and
the officials "used a[n] electro-shock apparatus and momentarily
stunned [him], rendering [him] immobil[iz]ed." When Chen revived,
he fled the scene, and one of the officials, who chased after Chen,
"slipped and fell, injuring himself in the process." Liu's
pregnancy test turned up negative.
On July 25, 1997, the same public health officials
brought policemen to Chen's house to question him. Chen was not
home. Chen's father "panicked trying to open the door for the
police" and "fell down the stairs and injured his head, causing
severe injuries." He died ten days later in the hospital from the
injury.
Chen wrote:
After my father was injured, I went to the
hospital to see him until he died. I borrowed
money from friends and buried my father. Then
I went to the police station trying to find
answers as to why my father was injured and
why no one helped him. At the police station,
. . . the police beat me. They then took me
to the hospital. I stayed in the hospital for
two days.
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After he left the hospital, Chen attempted to sue the government.
When no attorney would take his case, he became frustrated and
"took a large rock and threw it at a government building and broke
the plate glass."
On April 1, 1998, the police went to Chen's house to
arrest him for breaking the window. While Chen was not there, they
found Liu. The public health officials again took Liu to be
examined. She was three months pregnant this time, and the
hospital performed an unwanted abortion on her.
Chen wrote that he stayed in Changle City, hiding with
friends until April of 1999. He then went to Yunnan Province,
where he met a "snakehead" -- a smuggler who helped him enter the
United States.
Chen received a merits hearing before an IJ on September
11, 2003. His testimony before the IJ was inconsistent in numerous
ways with his written application. We recount the highlights.
Chen testified that during the July 7, 1997 incident,
while the family planning officials were struggling with his
girlfriend, he tried to intervene and was beaten for 10 minutes.
There was no mention of an "electro-shock" device as set out in his
written application. In this version, after the family planning
official tripped and fell as he pursued Chen, Chen escaped to his
aunt's house in Changle City and stayed there for three to four
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months. Chen had not mentioned fleeing to his aunt's house in his
written application.
Chen's testimony was also different from his written
application regarding the circumstances of his father's death.
Contrary to his written application, Chen testified that he did not
have a chance to see his father while his father was in the
hospital. Also contrary to his application, Chen testified that
because he was still in hiding, his family and neighbors, but not
he, buried his father.
There were inconsistent explanations about his visit to
the police at Town Hall. Chen testified that he went to speak with
the police at Town Hall on October 5, 1997. Unlike his written
application, which clearly stated that he went seeking answers for
his father's death, Chen's testimony was unclear as to what was his
purpose in going to Town Hall. After much questioning, he
indicated that he wanted to negotiate with city officials to help
pay for his father's burial and explained that he thought he would
"tell them that my father already died so you just don't bother,
don't bother with me."
Chen was also inconsistent about what happened to him at
Town Hall and afterwards. In his written application, he wrote
that he was brought to the hospital after the police beat him, and
that after he was released, he hid with friends. In his oral
testimony, however, Chen made no mention of a hospital. Instead,
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he said that other villagers came to Town Hall and negotiated with
the police for his release. Chen also testified that after he left
Town Hall, he hid, not with friends, but first in his aunt's house
and then in his uncle's house.
Chen testified that he did not know what happened to his
girlfriend after he left home or where she was. He said that he
was in contact with his mother, and she had not heard from his
girlfriend.
Along with his application, Chen submitted documents
purporting to be 1) a "certificate of arrest" for Chen issued on
March 31, 1998 for "[i]nterference with public affairs"; 2) a
certificate that Liu had an abortion on April 1, 1998; and 3) his
father's death certificate. During the hearing, the government
objected to the documents on the ground that they were not properly
authenticated and did not comply with the requirements of 8 C.F.R.
§ 287.6. The IJ accepted the documents de bene. The IJ attempted
to ascertain how Chen obtained the documents. Chen was unclear
whether he obtained all of the documents when he was in the United
States or when he was in hiding in China, but it was clear that he
did not obtain the documents contemporaneously with the events of
his narrative.
II.
Because the BIA adopted the IJ's credibility
determination and decision, we review the IJ's decision as the
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adopted final agency determination.5 Albathani v. INS, 318 F.3d
365, 373 (1st Cir. 2003).
We do not recite the full panoply of burdens and
standards for denial of asylum. Suffice it to say that many asylum
claims, as this one, depend on whether the statements made by an
alien in support of the asylum application are accepted as
credible. See, e.g., Dhima v. Gonzales, No. 04-2545, 2005 WL
1774549, at *3 (1st Cir. Jul 28, 2005). Where the agency's final
decision rests on the ground that the alien was not credible, then,
we see whether the determination of non-credibility is conclusive
of his claim. See id. If the adverse credibility determination is
supported by substantial evidence -- that is, if we cannot say a
finding that the alien is credible is compelled -- then the
decision must be affirmed. See 8 U.S.C. § 1252(b)(4)(B);
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005).
There may be times when, in performing our judicial review
function, we are impaired because the agency does not explain the
adverse credibility finding. That situation does not arise when
the IJ gives specific reasons for the determination, which are in
turn supported by the evidence. See Akinwande v. Ashcroft, 380
F.3d 517, 522 (1st Cir. 2004).
5
Chen argues that the BIA, though it explicitly stated that it
adopted the IJ's decision, in fact "distance[d] itself from [the
IJ's credibility] finding." This argument simply misreads the BIA
opinion, which clearly adopted the IJ's findings and went on to
provide an additional, independent ground for affirmance.
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The IJ's adverse credibility determination here is amply
supported by stated reasons and the record. A quick glance through
the facts recited above reveals numerous inconsistencies, gaps, and
contradictions. The IJ gave reasons for her adverse credibility
finding: 1) in his account of the first encounter with family
planning officials, Chen was inconsistent about whether he was
shocked with an electro-shock device and could not explain the
inconsistency satisfactorily; 2) he was inconsistent about whether
he saw his father during the time when his father was supposedly in
the hospital due to the head injury; 3) he was inconsistent about
whether he was present at his father's burial, and could offer no
convincing explanation for the inconsistency; 4) he could not
adequately explain why he went to the Town Hall to see the police
when he was still hiding from the police; 5) the general outlines
and the details of Chen's story were inconsistent with the U.S.
State Department's Profile of Asylum Claims and Country Conditions
for China, and specifically the conditions in Fujian Province, but
were consistent with the stories that snakeheads suggest to those
they smuggle; and 6) Chen's story was lacking in crucial detail and
supporting evidence such that the IJ could not find that Chen's
girlfriend even exists, let alone that the events recounted by Chen
happened. Each of these separate findings contributing to the
overall adverse credibility finding is well-supported by the
evidence.
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Chen makes two arguments in reply: 1) that the IJ misused
the State Department's Profile of Asylum Claims and 2) that there
are innocent explanations for the inconsistencies. The IJ, argues
Chen, used the Profile of Asylum Claims to treat "Chen as [a]
member of a class of suspect people, people from Fujian Province in
China. That is not permissible." This is a gross mis-
characterization of the IJ's decision. The IJ made it clear in her
decision: "I will adjudicate this case on its merits but I do note
that there are, . . . certain patterns . . . in [the Profile of
Asylum Claims]." The IJ is certainly permitted, even encouraged,
to consider the Profile of Asylum Claims as background material to
an individual claimant's case. See Hernandez-Barrera v. Ashcroft,
373 F.3d 9, 24 (1st Cir. 2004). There was nothing inappropriate.
The second argument is a non-starter. That the IJ might
have accepted Chen's explanations of his inconsistencies is not to
say she was required to do so. Nothing compels a contrary
conclusion.
The petition for review is denied.
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