Gui Cun Liu v. Ashcroft

• Decision Date: 24 June 2004
• Docket Number: No. 02-4334.,02-4334.
• Citation: 372 F.3d 529
• Parties: GUI CUN LIU; Xiu Ding Liu, Petitioners v. John ASHCROFT, Attorney General of United States of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 529

372 F.3d 529

GUI CUN LIU; Xiu Ding Liu, Petitioners v. John ASHCROFT, Attorney General of United States of America, Respondent.

No. 02-4334.

United States Court of Appeals, Third Circuit.

Argued December 4, 2003.

June 24, 2004.

Joseph C. Hohenstein (Argued), Philadelphia, for Petitioner.

Robert D. McCallum, Jr., Terri J. Scadron, Anthony W. Norwood (Argued), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, for Respondent.

Before SLOVITER and ALITO, Circuit Judges, and OBERDORFER, District Judge.^*

OPINION OF THE COURT

ALITO, Circuit Judge.

Mr. Gui Cun Liu and Mrs. Xiu Ding Liu ("the Lius") petition for review of an order of the Board of Immigration Appeals (BIA) affirming the denial of their application for asylum and withholding of deportation. Specifically, the Lius allege that the BIA erred in (1) affirming the opinion of the Immigration Judge (IJ) without opinion, in violation of their Due Process rights, (2) improperly finding that the Lius' testimony was not credible, (3) rejecting documentary evidence for failure to comply with the authentication procedures detailed in 8 C.F.R. § 287.6, and (4) ignoring favorable new evidence suggesting increased likelihood of persecution in their home country.

We agree that the IJ's improper application of § 287.6 caused him to disregard evidence that, if duly considered in the first instance, might have resulted in a favorable determination regarding credibility for the Lius. Because the adverse credibility finding was the crux of the order denying relief, we will grant the petition for review, vacate the order of the BIA, and remand.

I.

The Lius, both citizens of the People's Republic of China, seek asylum on the ground that they are unable to return to their native country "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). In particular, the Lius claim that Mrs. Liu was twice forced by the Chinese government to undergo an abortion,¹ and that both face government persecution on account of their Christian faith.

The Lius presented to the IJ documentary evidence supporting their claims, including a pair of certificates purportedly confirming that the two abortions had in fact been performed in China on the dates specified. See A.R. 272-73, 445-46. The Lius' counsel explained, upon submission of this evidence, that it had proved impossible to comply with the regulatory authentication procedure set forth in § 287.6; he had "attempted to comply with this procedure, but [was] told by the Chinese officials at the provincial level that no such authentication was performed at that level." A.R. 268; see also A.R. 289 (letter from U.S. Consulate in China to Lius' counsel, explaining that no authentication can be performed until documents have been signed and notarized by a local Chinese foreign affairs official). The IJ nevertheless refused to accept this explanation:

The regulations are specific, Mr. Hohenstein. It says they shall be certified. There's little or no weight that I can give a document that's in violation of the regulations, whether it be your client's inability to obtain proper certification of a document or whatever. The regulations say the documents shall be. There is no wiggle room there. So, what you'll have to do is, I'll allow it to remain in evidence but there's not much weight or any weight that I can give a noncertified document.

A.R. 184-85.

After hearing and considering testimony from both Mr. and Mrs. Liu, the IJ rejected their claims for asylum and withholding of deportation. In so deciding, the IJ relied on findings of several internal inconsistencies in the testimonies which rendered them "incredible." See A.R. 79 (noting "contradictions between the respondents' written applications and their testimony before the Court" as well as "contradictions in the testimony given by the respondents themselves"). In particular, the IJ noted one "dramatic" inconsistency (see A.R. 76) in Mrs. Liu's testimony regarding her second abortion, as reproduced in part here:

Q. Do you know if the baby was born alive or if it was born dead?

A. They, the nurse told me that it was a baby girl but dead.

Q. What did the nurse tell you again?

A. No, she told me it was a boy and it's, it's dead.

JUDGE TO MRS. LIU

Q. Wait, why do you keep changing your testimony. You just told me the nurse told you it was a baby girl and it was dead, then you say it was a baby boy and it was dead.

A. No, I meant that the nurse was a girl.

Q. Ma'am, just look this way. You see the word stupid written across my forehead?

A. No.

Q. You think I'm going to believe you when you change your testimony like that and give me such a half baked reason for changing the testimony?

A. No, I did not change.

A.R. 214-15; cf. A.R. 306 (affidavit of Mrs. Liu, stating that second aborted fetus was male). The IJ did not make reference to the abortion certificates in analyzing this or any other perceived inconsistency cited in the final decision, although he did state at the opening of his opinion that he had considered "all of the documentation that has been submitted thus far by both sides in this matter." A.R. 66.

On appeal to the BIA, a single member of the BIA elected to affirm the IJ's decision without opinion, pursuant to 8 C.F.R. § 3.1(e)(4). This appeal followed.²

II.

We begin our analysis by evaluating the IJ's interpretation and application of § 287.6 in effectively excluding the abortion certificates.³ We focus first on this evidentiary issue because we believe it follows from the IJ's reliance on Mrs. Liu's testimony regarding the gender of the fetus that the IJ was under the impression that the second abortion had, in fact, never occurred. In other words, if Mrs. Liu's confusion on this point is to be understood as impugning her credibility, it must be because the IJ took her confusion as evidence that the inconsistently-described fetus never actually existed.⁴ To the extent that there exists competent documentary evidence to the contrary (that is, that the abortion was performed as described by Mrs. Liu), the credibility determination of the IJ must accordingly be called into question.

The authentication regulation of 8 C.F.R. § 287.6 provides, in pertinent part:

In any proceeding under this chapter, an official record or entry therein, when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by an officer so authorized.... The attested copy, with the additional foreign certificates if any, must be certified by an officer in the Foreign Service of the United States, stationed in the foreign country where the record is kept.

Id. (emphasis added). As noted earlier, the IJ focused on the word "shall" in applying the regulation, emphasizing that it left him with "no wiggle room," and that the abortion certificates could hence be accorded only little or no evidentiary weight. A.R. 185.

Our precedent states that "[a]n agency's interpretation of its own regulation is `controlling ... unless it is plainly erroneous or inconsistent with the regulation.'" Abdulai v. Ashcroft, 239 F.3d 542, 552 (3d Cir.2001), quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). At oral argument, we specifically requested further guidance from the government as to its official interpretation of the regulation. In its supplemental brief submitted in response, the government contended that "8 C.F.R. § 287.6 is not an absolute rule of exclusion, and is not the exclusive means of authenticating records before an immigration judge." Letter Brief at 4. In so doing, it cited with approval Khan v. INS, 237 F.3d 1143 (9th Cir.2001), and Georgis v. Ashcroft, 328 F.3d 962 (7th Cir.2003), which held that "[i]t was error to exclude ... official records based solely on the lack of consular certification." Khan, 237 F.3d at 1144.⁵

While the government's reading of § 287.6 may not be the most obvious one, we cannot say that it is plainly erroneous or inconsistent with the regulation.⁶ Moreover, we fully agree, as the government states in its supplemental brief, that "asylum applicants can not always reasonably be expected to have an authenticated document from an alleged persecutor." Letter Brief at 3; cf. Senathirajah v. INS, 157 F.3d 210, 215-16 (3d Cir.1998) ("It is obvious that one who escapes persecution in his or her own land will rarely be in a position to bring documentary evidence or other kinds of corroboration to support a subsequent claim for asylum.... Common sense establishes that it is escape and flight, not litigation and corroboration that is foremost in the mind of an alien who comes to these shores fleeing detention, torture and persecution."). We believe that the Lius should have been allowed to attempt to prove the authenticity of the abortion certificates through other means, especially where (as here) attempts to abide by the requirements of § 287.6 failed due to lack of cooperation from government officials in the country of alleged persecution.

The government contends that, in any event, the improper application of § 287.6 was not prejudicial here since there was evidence in the record indicating that official documents from Fujian (such as the abortion certificates here) are commonly forged and thus are "virtually useless" as credible corroborating evidence. Letter Brief at 4; see A.R. 379 (State Department Country Report for China). However, the government's suggestion that the IJ relied (at least, in part) on the Country Report in his rejection of the abortion certificates is simply inaccurate. It is perfectly clear that the IJ based his decision on § 287.6 alone. See A.R. 184-85; cf. A.R. 95-96 (rejecting other evidence under § 287.6). We may not affirm the exclusion of evidence on grounds...