Mei Chai Ye v. U.S. Dept. of Justice

• Decision Date: 06 June 2007
• Docket Number: Docket No. 05-0170-ag.
• Citation: 489 F.3d 517
• Parties: MEI CHAI YE, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Alberto Gonzales, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

489 F.3d 517

MEI CHAI YE, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Alberto Gonzales, Attorney General,^* Respondent.

Docket No. 05-0170-ag.

United States Court of Appeals, Second Circuit.

Argued: March 16, 2007.

Decided: June 6, 2007.

Theodore Cox (David X. Feng, The Feng Law Firm, P.C., on the brief), New York, NY, for Petitioner.

Richard S. Murray, Assistant United States Attorney, for Margaret M. Chiara, United States Attorney for the Western District of Michigan, Grand Rapids, MI, for Respondents.

Before: CALABRESI, SACK and WESLEY, Circuit Judges.

CALABRESI, Circuit Judge.

When an asylum applicant himself has submitted two or more affidavits in support of his application that, he says, have been provided by different persons, but which are strikingly similar in their structure or language, our court has allowed an Immigration Judge ("IJ") to treat those similarities as evidence supporting an adverse credibility finding. See Surinder Singh v. Bd. of Immigration Appeals, 438 F.3d 145, 148 (2d Cir.2006) (per curiam) (holding that the IJ's adverse credibility finding was properly based on "the nearly identical language in the written affidavits [petitioner] submitted," which the petitioner had alleged were "provided by different people in India in support of [petitioner's] applications"). We have repeatedly allowed IJs to take into account such "intra-proceeding" similarities¹ because, in most cases, it is reasonable and unproblematic for an IJ to infer that an applicant who herself submits the strikingly similar documents is the common source of those suspicious similarities.

In the case before us, we are confronted with a related but far more difficult question: whether an IJ may consider "inter-proceeding" similarities — that is, striking similarities between affidavits that were submitted separately by ostensibly unrelated asylum applicants — as evidence of incredibility. To assume that one asylum applicant is responsible for, or even aware of, the striking similarities that appear in an unrelated applicant's submissions is much more problematic. This is because, in inter-proceeding cases, it may well be, inter alia, (1) that both applicants have inserted truthful information into a similar standardized template; (2) that the different applicants employed the same scrivener, who wrote up both stories in his own rigid style; (3) that "the other" applicant plagiarized the truthful statements of the petitioner; or (4) that the similarities resulted, not from the original documents themselves, but rather from inaccurate or formulaic translations — which unaffiliated applicants would not be in a position to discover or contest.²

In light of these possibilities, it is clear that any reliance an IJ places on inter-proceeding similarities must be met by a reviewing court with an especially cautious eye. Nonetheless, for the reasons here stated, we conclude that an IJ may, in appropriate situations, take such similarities into account. Because the IJ in this case carefully considered the particular similarities in question and rigorously complied with the procedural protections of Ming Shi Xue v. Board of Immigration Appeals, 439 F.3d 111, 125 (2d Cir.2006) (see infra at note 5 for a description of these), we deny the petition for review as to the merits of petitioner's asylum claim. And because petitioner either waived or failed to exhaust key issues with respect to her withholding of removal and Convention Against Torture ("CAT") claims, we deny review of these as well.

BACKGROUND

Petitioner Mei Chai Ye ("Ye"), a native and citizen of the People's Republic of China, entered the United States in April 2002. She was placed in removal proceedings shortly thereafter, and, in January 2003, filed an application for asylum, withholding of removal, and relief under the CAT. In a statement attached as an addendum to her I-589 form, Ye claimed that she had been subjected to two forced abortions in China, and that she feared that, if returned to that country, she would be involuntarily sterilized.

Ye first appeared before IJ Alan A. Vomacka on January 28, 2003, and then testified at length on June 13, 2003. On both occasions, she recounted the details of her two forced abortions, as well as her eventual escape from China. Ye's husband, Qiu Peng Hu ("Hu"), also testified at the June 13 hearing. Hu asserted that he and his wife left China together after she had been subjected to the two forced abortions. When IJ Vomacka asked Hu why he had not filed for asylum on his own behalf, Hu replied that he had been receiving assistance from the "Huang Li Li law firm," and that the firm advised him that he and his wife "cannot apply together." Hu also acknowledged that Huang Li Li was "helping [him] with [his][i]mmigration case," and that the firm helped his wife Ye with her asylum application. IJ Vomacka commented, in passing, "I see a lot of lawyers in Court, but I don't think I'm familiar with Huang Li Li."

Toward the close of the June 13 hearing, IJ Vomacka mentioned to counsel for both parties that he seemed to recall an asylum application filed by a different petitioner — in a case also pending before IJ Vomacka — that strikingly resembled Ye's own asylum application. Moreover, both Ye and the unidentified petitioner were then being represented by the same lawyer, Baird Cuber ("Cuber"). Because IJ Vomacka believed privacy concerns were implicated in the sharing of affidavits across unrelated cases, he asked the Department of Homeland Security ("DHS") to prepare redacted versions of the two applications. DHS agreed to do so, and the hearing was then adjourned for the day.

On June 17, 2003, Cuber submitted to IJ Vomacka a handwritten statement that was in the Chinese language. IJ Vomacka stated that he could not read it, to which Cuber replied:

As your Honor has stated that there are some similarities in this case, I just wanted to present basically the handwritten statements of the respective respondents just to, just to show that they did individually make out their own statements.

IJ Vomacka admitted the documents into the administrative record, and then asked Cuber to respond to the fact that there appeared to be striking similarities between the two petitioners' supposedly-unrelated affidavits. Cuber attempted a response:

I believe that any similarities in the two cases would really relate more to a pattern of practice of the Chinese Government with regard to their coercive family planning policy. I do not believe that there are unique details included in the statements that, that might lead one to believe that, that the two, the two cases have striking similarities that would, that would strike one as strange. I, I do believe that although both female respondents received abortions, I believe that that is a common occurrence in, in the People's Republic of China. The, they do have a population problem there. I, I believe that, I think it's the Country Reports that state that they have about one quarter of the world's population and only seven percent of, of the farmable land in, in the world. And, and so they — . . . .

IJ Vomacka interrupted at this point and pushed back: "Well, that might be some explanation of why they might have a birth control policy, but the Immigration law indicates that that is an acceptable congress in terms of forced birth control." To this, Cuber said, "Yeah." IJ Vomacka continued:

So the reason isn't really relevant. It seems to me there are some noticeable similarities in terms of the narrative statements. . . . Similar phrasing, similar structure, many things that are mentioned which wouldn't necessarily have to be mentioned but are mentioned. And it seems as though the, the parallel nature of the structure of the statements is pretty noticeable. . . . But I still think that the, the explanation, whatever explanation there might be for why the statements are so similar in structure and vocabulary, I guess, would be what's puzzling the Court. You might assume that there is a country where a lot of people are persecuted the same way, but you wouldn't expect two people in the United States to write down the history of their persecution in such a noticeably similar way.

Cuber chimed in and argued that, "I guess, you know, I guess, Your Honor, you know, with regard to translating, I, I think that when somebody, somebody starts translating documents, I, I think they develop a certain style." IJ Vomacka acknowledged this possibility, but rejoined, "Well, I don't have any evidence that that's so. I don't even know that the documents were translated by the same person." And Cuber conceded, "Right, that's true." The June 17 hearing was then adjourned.

The parties reconvened on June 30, 2003. Cuber did not attend, but Ye was represented at the hearing by David X. Feng ("Feng"). As IJ Vomacka explained,

the Court has provided the attorneys [including both Cuber and Feng] with copies of the narrative statements of the respondents in this case and the other case, in which I've made notes in capital letters of what seems to me to be extremely similar. And, as we've discussed off the record, I expect this case to be reset in case Mr. Cuber finds anything he needs to explain, present, et cetera, in terms of documents, after studying the Court's notations and so on about these similarities.

On August 8, 2003, counsel reconvened, although Ye — who had requested a waiver of appearance — was not herself present. As to the striking similarities that the IJ had identified in his careful annotations, Cuber had no explanation to offer. Instead, Cuber requested a withdrawal from his representation of Ye:

Your Honor, I do not speak the Chinese language and I do have to rely on other individuals to translate documentation as well as addend[a]. And after reviewing the notations that Your Honor has made in these two separate addend[a], I would request a withdrawal from my...