Xie v. Ashcroft

• Decision Date: 24 February 2004
• Docket Number: No. 02-3615.,02-3615.
• Parties: Xin Jie XIE, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 239

359 F.3d 239

Xin Jie XIE, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3615.

United States Court of Appeals, Third Circuit.

Argued October 16, 2003.

Filed February 24, 2004.

Marco Pignone, III (Argued), Wilson & Pignone, Philadelphia, for Petitioner.

Robert D. McCallum, Jr., Assistant Attorney General Civil Division, Terri J. Scadron, Assistant Director, Anthony W. Norwood, Ethan B. Kanter, John M. McAdams, Jr., Jennifer A. Parker (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, for Respondent.

Before SLOVITER, ROTH, and STAPLETON, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Petitioner Xin-Jie Xie ("Xie") has filed the pending Petition for Review of the decision of the Bureau of Immigration Appeals ("BIA") dismissing Xie's application for asylum and withholding of deportation under 8 U.S.C. §§ 1158, 1231(b)(3). In so ruling, the BIA explicitly adopted the adverse credibility finding of the Immigration Judge ("IJ").

I.

Xie arrived in the United States on May 27, 1993 as a nonimmigrant visitor for business. He testified his company sent him to the United States "for a certain kind of product and merchandise research team." A.R. at 108.¹ He was authorized to stay in this country for thirty days. He did not leave when his visa expired and on January 7, 1997, the Immigration and Naturalization Service ("INS") charged him with deportability under 8 U.S.C. § 1251(a)(1)(B). He conceded deportability, but requested relief in the form of asylum and withholding of deportation or, in the alternative, voluntary departure. Xie claims that he "has a reasonable fear of future persecution if he is removed to [China]." Petitioner's Br. at 8.² The IJ found that Xie was not credible. The BIA considered Xie's appeal, which it dismissed with an opinion holding that the IJ's adverse credibility finding was supported by the record.

Xie timely filed this Petition for Review and we have jurisdiction under 8 U.S.C. § 1252. When the BIA has rendered its own opinion, we review the decision of the BIA and not the IJ. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). In this case, however, for reasons explained hereafter, we also have jurisdiction to review the IJ's decision.

II.

Xie was married in 1973, and he and his wife have three children, born in 1974, 1977, and 1979 respectively. In his application for asylum, Xie alleged that he seeks asylum because he fathered three children, which violated Chinese national policy of family planning. Xie alleged that he was detained in 1976 after the birth of his second child and was released after his wife had an IUD loop inserted. In his sworn statement supplementing his asylum application, Xie notes that when his wife became pregnant again in 1979 despite the IUD, she went into hiding at a relative's home in another village and Xie went into hiding in yet another village, leaving his children in the care of his parents. Unable to locate either Xie or his wife in their home, the local authorities became angry, broke his door and took some of the furniture; he and his wife lost their jobs and were asked to pay a fine of 5,000 RMB.³ They did not have the money to pay the fine and "We decided to leave this country. This is why I came to America to seek a better life." A.R. at 308.

In his testimony at the hearing, Xie stated that after his wife had given birth to their daughter in 1979, government birth control officials took her to the Province Hospital where she was forcibly sterilized. Xie claimed that thirteen years later, toward the end of 1992, birth control officials came to his home and ordered him to pay a penalty of 9,300 RMB.⁴ Xie testified that after he learned of the fine, he argued with the birth control officials and told them he had no more money; they beat him up, detained him for about a week, and released him because of his wife's connections but told him he had to pay the balance of the penalty due within three weeks. Xie left China in February 1993. His wife and children remain in China.

III.

In his brief Xie states that he "established a well-founded fear of persecution on account of his political opinion as his wife was forcibly sterilized." Petitioner's Br. at 6. He argues that he is entitled to asylum as a "refugee," defined in the statute as: "any person ... unable or unwilling to return to ... [his or her] 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 1996, Congress amended the definition of refugee as follows:

a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

8 U.S.C. § 1101(a)(42). The BIA extended this provision to apply to spouses of persons who have undergone coercive birth control procedures. In re C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997).

Neither the BIA nor the IJ reached the merits of Xie's argument that he qualifies for asylum under the statutory definition of refugee. As the Government's brief states, the IJ "denied Xie's claim on the basis of an adverse credibility determination and did not make an alternative finding as to whether Xie's evidence, if deemed credible, was sufficient to meet his burden of proof." Govt's Br. at 3 n. 2. Xie apparently agrees, as his counsel stated at the oral argument before us that the "only issue here is credibility."

In its opinion dismissing Xie's appeal, the BIA held that the IJ's adverse credibility finding is supported by the record. It further stated, "[a] persecution claim that lacks credibility cannot satisfy the burdens of proof and persuasion necessary to establish eligibility for asylum or withholding of deportation. See Matter of M-S-, 21 I. & N. Dec. 125 (BIA 1995); see generally Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir.2001)." App. at 6-7. We will therefore limit ourselves to the first issue as presented by the Government: "Whether the Board's finding that Xie failed to meet his burden of proof is supported by substantial evidence where Xie's testimony and evidence contained several material inconsistencies, crucial omissions, implausibilities, and was refuted by the State Department Report and Comments?" Govt's Br. at 3.⁵

The BIA failed to find past persecution because it found Xie to be incredible. Our precedent is clear that when the BIA defers to an IJ, we must review the IJ's decision as the final agency decision. See Abdulai, 239 F.3d at 549 n. 2. In this case, the BIA both adopted the IJ's adverse credibility determination and discussed some, but not all, of the underlying bases for the IJ's adverse credibility determination. As to the remaining bases, the BIA also stated that "the Immigration Judge found several other inconsistencies and discrepancies between the respondent's asylum application and his testimony." App. at 6.

In Senathirajah v. INS, 157 F.3d 210 (3d Cir.1998), which also involved an adverse credibility finding based, in part, on an asylum application, we discussed both the IJ and the BIA's decisions. We did not consider the propriety of reviewing both decisions, but we noted that "the BIA's ruling result[ed] in substantial part from the deference it gave the immigration judge's decision," and that the BIA "appear[ed] to have substantially relied upon the adverse credibility ruling of the immigration judge." Id. at 216. Similarly, in Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003), we examined the decisions of both the IJ and the BIA because the "BIA adopted the IJ's analysis on corroboration while rejecting the IJ's conclusion regarding credibility, a conclusion which influenced the IJ's corroboration analysis." Id. at 439. Likewise, the BIA in the instant case did briefly discuss many of the inconsistencies troubling the IJ and stated that "[it] believe[s] that the inconsistencies and omissions mentioned by the Immigration Judge actually exist in the record." App. at 6. Although it gave only some examples of those inconsistencies, the BIA also appears to have substantially relied upon the adverse credibility finding of the IJ. Accordingly, we have jurisdiction to review both the BIA's and IJ's opinions.

In its decision, the BIA stated:

We give significant weight to an Immigration Judge's adverse credibility finding. See Matter of A-S-, 21 I & N Dec. 1106, 1109 (BIA 1998); Matter of Burbano, 20 I & N Dec. 872, 874 (BIA 1994). Specifically, we have stated that we accord deference to an adverse credibility finding based upon the inconsistencies and omissions regarding events central to an alien's asylum claim where a review of the record reveals that (1) such discrepancies and omissions actually exist; (2) the discrepancies and omissions provide specific and cogent reasons for the Immigration Judge's credibility determination and (3) the alien has not supplied a convincing explanation for such discrepancies and omissions. Matter of A-S-, supra, at 1109.

App. at 6.

Adverse credibility determinations are reviewed under the substantial evidence standard. Gao, 299 F.3d at 272 (citing Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998)). Under this standard, the Board's adverse credibility determination must be upheld on review unless "any reasonable adjudicator would be compelled to conclude to the contrary." Id. (citing INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B)) (internal quotation omitted)....