Li v. Ashcroft

• Decision Date: 05 August 2004
• Docket Number: No. 02-72689.,02-72689.
• Citation: 378 F.3d 959
• Parties: Chun He LI, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.3d 959

Chun He LI, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-72689.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2004.

Filed August 5, 2004.

Bruno Joseph Bempi, Hempstead, NY, for the petitioner.

Earle Wilson and Ernesto H. Molina, Jr., United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before FARRIS, NOONAN, and RAWLINSON, Circuit Judges.

FARRIS, Senior Circuit Judge:

Chun He Li, a native of the Peoples Republic of China, petitions for review of the Board of Immigration Appeals' final order affirming an Immigration Judge's decision to deny his request for asylum and withholding of removal. Li alleges persecution by the Chinese Government. He asserts that he and his wife were arrested and fined, and that his wife was forcibly sterilized, pursuant to the PRC's one-child policy. Our review ends if there is evidence to support the IJ's adverse credibility decision. There is. We therefore deny the petition.

Background

Upon his arrival in the United States on May 4, 1992, Chun He Li applied for admission into the country. After an interview with INS officials, he was placed in exclusion proceedings and released into the community pending a hearing. Li failed to appear at the hearing, and was ordered deported in absentia. In 1992 and 1993, Li submitted three separate asylum applications, claiming he was persecuted in China because he and his wife had been fined for having too many children.

In 1999, Li filed a motion to reopen, which was granted. A hearing was held on August 26, 1999, at which Li conceded removability, and sought asylum and withholding of removal, alleging that he and his family had been persecuted by PRC government officials enforcing the country's one-child policy. In addition to his earlier claim that he had been fined, Li asserted for the first time that his wife had been forced to undergo sterilization.

In support of his claim, Li testified at the hearing that he married his wife, Feng Ying Chen in 1978. Their first son was born in 1979, while a second was born in 1981. According to Li, shortly after the second birth, government officials fined them for having too many children, then required Feng Ying to have an IUD inserted.

Due to an apparent malfunction, Feng Ying became pregnant again and gave birth to a third son on February 21, 1984. Li testified that when officials discovered this, they arrested him and told him that he would undergo mandatory sterilization. Fearing the procedure would destroy his ability to work, Li begged officials to sterilize his wife instead. They agreed, and took Feng Ying into custody the next day and forcibly sterilized her at a local commune hospital. Li testified that the family was also fined 8,000 yuan for having their third child, and told they would be jailed if the fine was not paid.

Because they could not afford the fine, Li's family moved to Guan Zhou City, located about 20-hours by train from their hometown. They lived there for seven years, during which they avoided government officials seeking to collect the fine. Later, Li learned that after the move, government cadres went to his house to collect the fine. When they discovered he had fled, the officials ransacked his house and seized his belongings.

Li testified that he fled China in late 1991, fearing that the outstanding penalty would result in additional jail time. At the time of the asylum hearing, Feng Ying and his children had moved in with her parents, who live in their home province. Although Feng Ying occasionally visited their home village, she feared that officials would find her and arrest her for failing to pay the outstanding fine.

Li also presented x-rays, purportedly of Feng Ying, that were taken in 1984. A doctor examined them in 1999 and concluded they were consistent with a tubal ligation performed on an unknown patient at an unknown time. Li also submitted a photograph of Feng Ying depicting a scar on her abdomen. We recognize that this testimony, if credible and unrefuted, would establish persecution.

The record includes Li's sworn interview statement to Immigration Inspector Richard Westlake at the Honolulu Airport on May 4, 1992. Inspector Westlake testified at the hearing and described the procedures utilized in 1992 for interviewing arriving aliens. INS also presented Li's three prior asylum applications. It is undisputable that he made a stronger case at the August 26, 1999 hearing than he had on any of three prior occasions. The question is whether there are sufficient inconsistencies for an IJ to reasonably conclude that the 1999 testimony was not credible.

At the close of the hearing, the IJ denied Li's request for asylum and withholding, finding him not credible. Li appealed the IJ's ruling, which the BIA affirmed without comment.

Discussion

Because the BIA affirmed the IJ without opinion, we review the IJ's ruling. Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003).

To qualify for asylum, Li was required to prove he was unable or unwilling to return to China "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1). "[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, shall be deemed to have been persecuted on account of political opinion." 8 U.S.C. § 1101(a)(42)(B). Spouses of those forcibly sterilized are deemed "refugees" under this section as well. Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir.2004).

To establish eligibility for withholding of removal, Li was required to prove that if removed to China, it is more likely than not that he will be persecuted on account of a statutorily-protected ground. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001); 8 U.S.C. § 1231(b)(3).

We review a ruling denying asylum or withholding of removal for substantial evidence. Baballah v. Ashcroft, 335 F.3d 981, 987 (9th Cir.2003). "It can be reversed only if the evidence presented ... was such that a reasonable fact finder would have to conclude that the requisite fear of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The IJ found Li's testimony incredible. We review under the same basic standard. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). While accorded deference, a credibility determination "must be supported by a specific, cogent reason." de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997) (citation omitted.) An adverse credibility ruling will be upheld so long as identified inconsistencies go to the "heart of [the] asylum claim." Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir.2002).

The IJ noted that Li filed three prior asylum applications containing key omissions and discrepancies. For instance, those applications failed to mention that Li's wife had been forcibly sterilized after Li was detained and threatened with sterilization himself. In fact, Li denied that he or any member of his family had ever been arrested, which contrasted with testimony at the hearing. Moreover, Li testified that he was assessed 200 Yuan after the birth of his second child and 8000 Yuan after the third. The earlier applications stated that he was fined 3000 Yuan for his second child and 3500 for his third. Whether these are "significant and relevant discrepancies" that undermine Li's credibility and support the IJ's decision to disbelieve him is a question about which reasonable minds may differ. Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.2000). But our inquiry is simply whether a reasonable IJ could so conclude.

Li argues that the IJ erred in considering his prior asylum applications because there was no evidence that a qualified legal professional who spoke his language filled out those forms. Contrary to these assertions, Li testified that the applications were completed at a law firm by an assistant who reviewed the forms with him in his native language. Li signed them under penalty of perjury. They had impeachment value as prior inconsistent statements.

The IJ also noted that Li failed to mention any persecution when interviewed by Inspector Westlake in 1992. When asked if he left China out of fear of being arrested or harmed by government officials, Li responded, "[n]o. I left China because I was deceived by people who promised me a good life overseas. The man said it would be easy for me to make money overseas." When asked if he had ever been mistreated by Chinese authorities, Li responded, "I have never been mistreated by the government because I never did anything wrong." Id. This conflicts with Li's subsequent claims.

We hesitate to view statements given during airport interviews as valuable impeachment sources because of the conditions under which they are taken and because a newly-arriving alien cannot be expected to divulge every detail of the persecution he or she sustained. See Singh v. INS, 292 F.3d 1017, 1021-24 (9th Cir.2002); see also Balasubramanrim v. INS, 143 F.3d 157, 163 (3d Cir.1998). But here, the IJ heard substantial evidence from Inspector Westlake about the procedures used to ensure that interviews were accurately understood and recorded. Both the INS supervisor and the interpreter would carefully question and evaluate the alien before the interview; if any sign of a language barrier was detected, the interview would be halted until an appropriate interpreter could be found. AR 80-81. After the interview, the interpreter would review questions and answers line-by-line with the alien to ensure there were no translation problems and to correct any misstatements that may have...