Ye v. Department of Homeland Security

• Decision Date: 02 May 2006
• Docket Number: Docket No. 04-4519 AG.
• Citation: 446 F.3d 289
• Parties: Xian Tuan YE, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Alberto R. Gonzales,<SMALL><SUP>*</SUP></SMALL> U.S. Attorney General, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

Page 289

446 F.3d 289

Xian Tuan YE, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Alberto R. Gonzales,^* U.S. Attorney General, Respondents.

Docket No. 04-4519 AG.

United States Court of Appeals, Second Circuit.

Argued: April 5, 2006.

Decided: May 2, 2006.

COPYRIGHT MATERIAL OMITTED

Ramesh K. Shrestha, New York, NY, for Petitioner.

Thomas I. Meehan, Jr., Assistant United States Attorney (Chuck Rosenberg, United States Attorney for the Southern District of Texas, on the brief), United States Attorney's Office for the Southern District of Texas, Houston, TX, for Respondent.

Before: CABRANES, SOTOMAYOR, and RAGGI, Circuit Judges.

PER CURIAM.

We consider here principally (1) whether an adverse credibility finding is supported by substantial evidence where a petitioner's written asylum application and subsequent testimony contain material inconsistencies that "reach[] to the heart of the claim" of persecution; (2) whether an IJ was required to afford the petitioner an opportunity to respond before basing an adverse credibility determination on such inconsistencies; (3) whether the BIA engaged in improper fact-finding by relying on evidence in the record not cited in the IJ's decision; (4) whether the BIA erred in declining to make administrative findings regarding the "corrected" abortion certificate which petitioner submitted for the first time on appeal, and (5) whether the BIA erred in denying petitioner's request for withholding of removal or other relief under the CAT.

BACKGROUND

Petitioner Xian Tuan Ye ("Ye"), a native and citizen of China, petitions this Court for review of a July 26, 2004 Order of the Board of Immigration Appeals ("BIA"), affirming an April 16, 2003 decision of Immigration Judge ("IJ") Sandy Hom, see In re Xian Tuan Ye, File No. A 72-780-428 (New York, NY),¹ which denied Ye's application for asylum, withholding of removal, and relief under Article 3 of the United Nations Convention Against Torture ("CAT").²

Ye illegally entered the United States at Puerto Rico over a decade ago, in February 1994. He applied for asylum and withholding of deportation in October 1994, claiming that his wife had been abducted and forced to undergo an abortion, that he opposed the abortion because of his Christian beliefs, and that family planning officials fined and threatened him for speaking out against the abortion to others at his church. Following a hearing in October 1995, the IJ denied Ye's application, making an adverse credibility finding and concluding that Ye's forced abortion claim could not stand without a nexus to a protected ground, in light of then-prevailing law.³ In denying Ye relief, the IJ noted that Ye's written application failed to mention that he had been "detained for a three-day period and beaten very badly," and in that respect was inconsistent with his later testimony.

Ye appealed to the BIA, which affirmed the IJ's decision in July 1996. The BIA found "ampl[e] support[]" for the IJ's adverse credibility determination, noting that "[t]he account in [Ye]'s asylum application omits events which were so crucial to his claim that it is not credible that [Ye] would have overlooked them when preparing the application if they had in fact occurred." The BIA specifically highlighted Ye's failure to mention in his I-589 form "the facts he testified to at his hearing regarding a 3-day detention in which he was beaten, and his having distributed anti-government leaflets."

In June 1997, Ye moved the BIA to reconsider its decision in light of Congress's 1996 expansion of the definition of "refugee" to include victims of coercive family planning policies. See 8 U.S.C. § 1101(a)(42) (providing that involuntary sterilization constitutes persecution "on account of political opinion"); Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (holding that an alien whose wife has been subjected to coercive family policy may establish past persecution to himself).

In April 2002, the BIA granted Ye's motion and remanded the case to the same IJ who had presided over Ye's initial application. Once again, the IJ denied Ye's asylum application, finding that he failed to demonstrate eligibility under either a religious persecution⁴ or coercive family planning theory. Regarding Ye's family planning claim, the IJ again found that Ye was not credible, this time emphasizing inconsistencies between (a) Ye's 2003 testimony and an abortion certificate submitted in support of his application, and (b) Ye's 1995 and 2003 testimony concerning how and when his wife's pregnancy was discovered. The IJ also found Ye ineligible for withholding of removal or relief under the CAT because he had not demonstrated that he was "more likely than not" to be tortured or persecuted upon his return to China.

Ye appealed to the BIA, which affirmed the IJ's adverse credibility finding, relying on inconsistencies highlighted by the IJ and BIA in their 1995 and 1996 opinions but not reiterated in the IJ's 2003 decision. Specifically, the BIA noted that: (1) while Ye's I-589 form indicated that he was taken to the family planning office and threatened with arrest, he later testified that he was detained and severely beaten over a three-day period; and (2) while Ye testified in 1995 that he was released after he asked someone to do him a favor, he testified in 2003 that he was released because his uncle posted bond for him. In light of these inconsistencies, which the BIA found "reach[] to the heart of Ye's [asylum] claim," the BIA declined to address the IJ's findings about the authenticity of the abortion certificate.⁵ Finally, the BIA affirmed the IJ's finding that Ye failed to meet his burden with respect to CAT relief. Ye filed a timely petition for review.

DISCUSSION

"When the BIA issues an opinion, `the opinion becomes the basis for judicial review of the decision of which the alien is complaining.'" Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655 (7th Cir. 2004)). Here, the BIA adopted the conclusions of the IJ and upheld its adverse credibility finding, but did so for reasons other than those cited in the IJ's most recent decision. Because this is most analogous to a case in which "the BIA adopts the decision of the IJ and merely supplements the IJ's decision," we will "review the decision of the IJ as supplemented by the BIA." Id.; cf. Xue Hong Yang v. U.S. DOJ, 426 F.3d 520, 522 (2d Cir.2005) (holding that when the BIA rejects part of the basis of an IJ's decision, but affirms the holding in every other respect, we review the IJ's opinion as modified by the BIA); Yan Chen, 417 F.3d at 271 (holding that when the BIA does not "adopt the decision of the IJ to any extent," we review the BIA decision only).

We review an IJ's factual findings, including his adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary ....") (emphases added); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) ("[W]e will not disturb a factual finding if it is supported by `reasonable, substantial, and probative' evidence in the record when considered as a whole.") (internal quotation marks omitted).

As we have reiterated on multiple occasions, we afford "`particular deference to the credibility determinations of [an] IJ.'" Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). "Accordingly, our review does not permit us to engage in an independent evaluation of the cold record or ask ourselves whether, if we were sitting as fact finders, we would credit or discredit an applicant's testimony." Guan v. Gonzales, 432 F.3d 391, 394-95 (2d Cir.2005). "Where the IJ's adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise." Zhou Yun Zhang, 386 F.3d at 74.

Of course, "the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review." Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). An adverse credibility determination must be based on "specific, cogent reasons" that "bear a legitimate nexus" to the finding. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (citation and internal quotation marks omitted). Inconsistent testimony often bears a legitimate nexus to an adverse credibility finding, but it need not be fatal if it is minor and isolated, and the testimony is otherwise generally consistent, rational, and believable. See Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000).

In upholding the IJ's adverse credibility determination, the BIA relied primarily on omissions in Ye's written application for asylum that were inconsistent with his subsequent testimony.⁶ Specifically, the BIA emphasized that, in describing his mistreatment at the hands of Chinese authorities, Ye "testified to a significantly different event" that was nowhere outlined in his 1994 application. Far from being "a mere omission" in his paperwork, the BIA concluded that this inconsistency "reaches to the heart of [Ye's] claim" because "this is the only persecutory event which the respondent claims happened to him directly, aside from his wife's alleged abortion."

Upon our review of the record, we agree with the BIA's assessment that Ye's inconsistent statements concerning the nature of his mistreatment support the IJ's adverse credibility finding. In his written application, Ye claimed only that Chinese family planning officials took him to a government office to teach him a...