Xiao Xing Ni v. Gonzales

• Decision Date: 12 July 2007
• Docket Number: Docket No. 04-0042-AG.
• Citation: 494 F.3d 260
• Parties: XIAO XING NI, Petitioner, v. Alberto GONZALES, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

494 F.3d 260

XIAO XING NI, Petitioner, v. Alberto GONZALES, Attorney General,^* Respondent.

Docket No. 04-0042-AG.

United States Court of Appeals, Second Circuit.

Argued: February 14, 2007.

Decided: July 12, 2007.

Joan Xie, New York, NY, for Petitioner.

Kelly A. Zusman, Assistant United States Attorney (Kenneth C. Bauman, on the brief), for Karin J. Immergut, United States Attorney, District of Oregon, Portland, OR, for Appellee.

Before: JACOBS, Chief Judge, WALKER, CALABRESI, Circuit Judges.

Judge CALABRESI concurs in a separate opinion.

DENNIS JACOBS, Chief Judge:

Xiao Xing Ni, a native and citizen of China, seeks review of a December 15, 2003 order of the Board of Immigration Appeals ("BIA") affirming the July 18, 2002 decision of an immigration judge ("IJ"). In re Xiao Xing Ni, No. A79 399 277 (B.I.A. Dec. 15, 2003), aff'g A79 399 277 (Immig. Ct. N.Y. City July 18, 2002). The IJ determined that Ni's testimony was not credible, and denied her application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").

For the reasons that follow, we conclude that the IJ's decision was supported by substantial evidence. More analysis is required, however, because: [i] Ni has given birth to one child; [ii] certain documents (mentioned in Jin Xiu Chen v. U.S. Department of Justice, 468 F.3d 109 (2d Cir. 2006)) might—if they are authentic—indicate that the birth of one child could result in forced sterilization for a person who is returned to Fujian Province; and [iii] our opinion in Tian Ming Lin v. U.S. Department of Justice, 473 F.3d 48, 52 (2d Cir. 2007) (per curiam), suggests in dicta that, although by statute we "may not order the taking of additional evidence," 8 U.S.C. § 1252(a)(1), we may have "inherent power" to do so in the circumstances presented here. We need not decide whether (despite Congress's proscription) there may be circumstances in which we retain an inherent power to remand to the BIA for the consideration of additional evidence; we hold more narrowly that regardless of whether such residual inherent power exists, we should not exercise it if: [i] the basis for the remand is an instruction to consider documentary evidence that was not in the record before the BIA; and [ii] the agency regulations set forth procedures to reopen a case before the BIA for the taking of additional evidence.

I

Ni arrived in the United States in April 2001 and applied for asylum, withholding of removal, and CAT relief based on her claim of persecution under China's family-planning policy. Her asylum application claimed: She began living with a man in 1996, became pregnant about two years later, was forced to undergo an abortion when the cadre discovered the pregnancy in November 1998, and was fined for a violation of "birth control policy."

At the July 18, 2002 hearing, Ni testified that she and her boyfriend began living together in her parents' house in 1997 when they were both fifteen years old, that they were unmarried because they were under-age, that they had no traditional wedding ceremony because they "were worried about what the neighbors would say," but that neighborhood opinion did not inhibit them from having wedding photographs taken, or from cohabiting unmarried at age fifteen.

Ni further testified that she was given an abortion certificate, that her mother paid a fine imposed on Ni for becoming pregnant outside marriage (and was given a receipt), and that Ni left China when she became pregnant again because she feared another forced abortion and forced sterilization. When asked to explain why the asylum application mentioned no fear of sterilization, Ni twice said that she simply forgot to mention it.

Ni's son was born in the United States on November 12, 2001. The IJ did not make an adverse credibility finding as to Ni's assertion that she has one child, and the government does not dispute the point.

II

The IJ found that Ni's testimony was not credible and rejected her application for relief. The BIA affirmed. Where, as here, the BIA's decision affirms the IJ's adverse credibility finding without rejecting any portion of the IJ's decision, but emphasizing particular aspects of the reasoning, we review both decisions. See Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005) (per curiam). We review the agency's findings, including credibility findings, for "substantial evidence," Ye v. Dep't of Homeland Security, 446 F.3d 289, 294 (2d Cir.2006), treating the agency's findings as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

"When a factual challenge pertains to a credibility finding . . . we afford particular deference in applying the substantial evidence standard, mindful that the law must entrust some official with responsibility to hear an applicant's . . . claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant." Zhou Yun Zhang v. I.N.S., 386 F.3d 66, 73 (2d Cir.2004) (internal citations and quotation marks omitted). Our review of an adverse credibility determination is "exceedingly narrow," Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999), and ensures only that it is "based upon neither a misstatement of the facts in the record nor bald speculation or caprice." Zhang, 386 F.3d at 74.

The adverse credibility finding here was supported by substantial evidence. The IJ found that Ni's credibility was undermined by [i] the implausibility and inconsistency of Ni's testimony about her deference to the neighbors' views regarding her boyfriend and her pregnancy; [ii] Ni's failure to mention her claimed fear of sterilization on direct examination or in her asylum application, or until "the very last part of the hearing when the Court started to ask questions"; and [iii] the discrepancy between Ni's claim that she received an abortion certificate following her forced abortion and the 1998 State Department Country Report which states that United States authorities "are unaware of any so-called `abortion certificates'" and that "the only document that might resemble such a certificate . . . is a document issued by hospitals upon a patient's request after a voluntary abortion." Bureau of Democracy, Human Rights and Labor, U.S. Dep't of State, China: Profile of Asylum Claims and Country Conditions 24 (Apr. 14, 1998); see also Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.2006).

The adverse credibility finding undermines the only record evidence of Ni's alleged past persecution or risk of future persecution. Accordingly, the BIA's denial of Ni's application for asylum and withholding of removal is supported by substantial evidence. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Ni has pressed no meaningful challenge to the denial of her CAT claim; so any challenge is waived. Cf. Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir.2005).

III

In virtually all cases, the conclusion that substantial evidence supports the IJ's decision would end our inquiry; our review of an IJ's findings is limited to determining whether "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. 1252(b)(4). Absent a determination that a reasonable adjudicator would be so compelled, or that the IJ committed an error of law, the petition must be denied. See id. However, in Tian Ming Lin v. U.S. Department of Justice, 473 F.3d 48 (2d Cir.2007) (per curiam), a panel of this Court raised in dicta the prospect that we may be able nevertheless to remand for further fact-finding. The Tian Ming Lin panel: [i] took judicial notice of certain documents that were in the record of another case, Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006); [ii] relied on Guo for the proposition that the documents, "if authentic," "`apparently reflect[ ] governmental policy in the province in China where [the petitioner] lived,'" Tian Ming Lin, 473 F.3d at 51-52 (quoting Guo, 463 F.3d at 115); and [iii] remanded to the BIA for consideration of the so-called Guo documents because they "may constitute evidence of an official policy of forcible sterilization in Fujian Province," Tian Ming Lin, 473 F.3d at 51.

The Guo documents (if authentic) concern the possible sterilization of persons who have had two or more children. Id. Ni has had only one; but suspect documents to similar effect regarding persons who have had any number of unauthorized births were in the record in another recent case of this Court: Jin Xiu Chen v. U.S. Department of Justice, 468 F.3d 109 (2d Cir.2006). Thus, the question before us is whether, if we take judicial notice of the so-called Chen documents, we have inherent power to order a remand for the BIA to consider documents that are not in the record of this case. To answer this question, the interplay of these recent cases and the underlying statutory framework requires some explication.

In Shou Yung Guo, the petitioner moved to reopen her case before the BIA and attempted to establish her risk of torture in China by submitting, inter alia, documents that purported to show that in Fujian Province her American-born second child would be counted for purposes of Chinese family-planning policies, and that in Fujian "the birth of a second child would result in forced sterilization." 463 F.3d at 112-13. The panel observed that although the documents were "unquestionably" material, it was "not apparent to us that the BIA ever really paid any attention to the documents." Id. at 115. Accordingly, the Guo panel remanded so that the BIA could consider the evidence that had been "casually" and inexplicably "dismissed."¹ Id.

In Tian Ming Lin, the petitioner alleged similar factual circumstances: he was "the father of two United States-born children" and claimed that he too "would face forced sterilization if returned to Fujian Province." 473 F.3d at 49. Unlike petitioner Guo, however, Lin did...