Dong v. Ashcroft, Docket No. 03-4075.

• Decision Date: 22 April 2005
• Docket Number: Docket No. 03-4075.
• Citation: 406 F.3d 110
• Parties: Xu Duan DONG, Petitioner, v. John ASHCROFT, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

406 F.3d 110

Xu Duan DONG, Petitioner, v. John ASHCROFT, Respondent.

Docket No. 03-4075.

United States Court of Appeals, Second Circuit.

Argued: April 4, 2005.

Decided: April 22, 2005.

Karen Jaffe (Charles C. Day, of counsel), New York, N.Y. for Petitioner.

Michael R. Holden, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, of counsel; David N. Kelley, United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, New York, N.Y. for Respondent.

Before: WINTER, McLAUGHLIN, and CABRANES, Circuit Judges.

PER CURIAM.

Petitioner Xu Duan Dong, a native and citizen of the People's Republic of China ("China"), petitions this Court for review of a December 16, 2002 order of the Board of Immigration Appeals ("BIA") affirming a December 29, 1997 decision by an immigration judge ("IJ") that denied petitioner's application for asylum and for withholding of removal. At the hearing before the IJ, petitioner testified that, having fathered three children, he had suffered persecution, including forcible sterilization, under China's family-planning policy, and that he had a well-founded fear of further persecution upon return to China. The IJ found petitioner to be not credible, citing inconsistencies among petitioner's testimony and other evidence in the record, the lack of corroborating documentary evidence, failure of petitioner's allegations to comport with record evidence on conditions in China, and petitioner's demeanor at the hearing.

Where, as here, the BIA summarily affirmed the IJ's decision, we review the IJ's decision rather than the BIA's order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Our review of the IJ's credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ's "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). "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." Zhang, 386 F.3d at 74 (citations and internal quotation marks omitted).

In this case, the IJ found that an essential factual allegation underlying petitioner's asylum claim — that he was forced to undergo surgical sterilization without an anesthetic — was omitted from petitioner's three asylum applications.¹ Although petitioner eventually alleged — in a brief affidavit supplementing his third asylum application — that he was forcibly sterilized, the IJ reasoned that a delay in asserting this "extraordinarily crucial" fact "strains ... credulity." We agree. Petitioner's omission was not incidental or ancillary; indeed, the alleged sterilization went "to the heart of his asylum claim." Ramsameachire v. Ashcroft, 357 F.3d 169, 182 (2d Cir.2004). Therefore, the IJ properly based the adverse credibility finding on petitioner's omission.

Petitioner argues that the omission of the sterilization claim did not warrant an adverse credibility finding in light of our decision in Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir.2003). His reliance on Secaida-Rosales is misplaced. In that decision we declined to credit an IJ's adverse credibility finding when that finding was based on the omission of ...