2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-28-2013

Biyun Liu v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3308

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-3308

____________

BIYUN LIU,

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

__________________________________

On a Petition For Review of an Order

of the Board of Immigration Appeals

(Agency No. A087-797-624)

Immigration Judge: Eugene Pugliese

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 1, 2013

Before: RENDELL, ALDISERT and NYGAARD, Circuit Judges

(Opinion filed: March 28, 2013)

____________

OPINION

____________

PER CURIAM

Biyun Liu (“Liu”) petitions for review of the Board of Immigration Appeals’ final 

order of removal. For the reasons that follow, we will deny the petition for review.

Liu was admitted to the United States in September, 2009 on a visitor’s visa and 

overstayed. She was served with a Notice to Appear, which charged that she is 

removable under Immigration & Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 
2

1227(a)(1)(B), for having remained in the United States for a time longer than permitted. 

These charges have been sustained. On or about February 3, 2010, Liu filed an 

application for asylum, withholding of removal, and for protection under the Convention 

Against Torture, in which she claimed that she had been forced to undergo an abortion in 

Lianjiang County in Fujian in 1999, and now fears persecution in China on the basis of 

her opposition to its coercive population control policies. 

In her statement in support of asylum, Liu explained that she left China in 

September, 2009. The events which caused her to leave began on January 23, 1999, 

when she and her husband-to-be, Zhenshun Weng, applied for a marriage certificate. She 

could not obtain a certificate to marry unless she underwent an abortion. After the 

abortion, Weng was forced to attend family planning classes and was required to send 

gifts to family planning officials, according to her statement. She and Weng were finally 

married on March 25, 1999, and their first daughter was born on February 9, 2000. Liu 

then hid from family planning officials but Weng was arrested. On April 25, 2000, she 

was forced to have an IUD inserted and Weng was released but was required to pay a 

fine. Weng left China and came to the United States in 2000. Liu tried but failed to 

leave China in 2004. In 2007, she had the IUD removed in a private clinic. Finally, she 

was able to reunite with her husband in the United States in 2009.

Liu’s removal hearing was held in Immigration Court on September 28, 2010. At 

it, she testified that she left China because she was persecuted by the family planning 

policy. She testified that she went to register for her marriage certificate on January 23, 

1999. On that date, family planning officials discovered that she was pregnant. She was 

arrested, and taken to Lianjiang County Hospital where she was required to undergo an 
3

abortion. Liu became pregnant again in late March, 1999, and the couple’s first child was 

born on February 9, 2000. After her daughter was born, she was required to have an IUD 

inserted. A month later she went to a private clinic and had it removed, and she stopped 

going for the gynecological exams that were required by family planning officials. Liu 

then hid at her mother’s house. Eventually, family planning authorities forced her to 

have another IUD inserted by arresting and detaining Weng. After the IUD was 

reinserted, Weng left China. Over the next few years, Liu continued going for the 

required gynecological check-ups. In 2007, she developed an infection and had the IUD 

removed at a private hospital. She then went into hiding for two years before leaving 

China for the United States. Liu testified that she feared she would be forced to terminate 

her current pregnancy and undergo sterilization if she is returned to China.

On cross-examination, Liu testified that she hid for two years at a friend’s house 

before leaving China, but when asked the name of her friend she stated, “I don’t know,” 

A.R. 210. Prior to the merits hearing, in support of her case Liu submitted the State 

Department’s 2009 Human Rights Report on China and certain news articles. She also 

submitted a letter from her husband, in which he corroborated the details provided in her 

asylum affidavit, and she submitted a letter from her father. When asked by the 

Immigration Judge whether her husband and father wrote the letters themselves (because 

the letters were similar both stylistically and substantively), Liu said yes.

On September 28, 2010, the IJ issued an oral decision denying Liu’s applications. 

Specifically, the IJ found that Liu was not credible based on several factors: (1) she gave 

two different dates regarding when her first pregnancy was discovered (January 23, 1999 

and March 15, 1999); (2) she testified that she was pregnant for the second time from late 
4

March, 1999 until February 9, 2000 but that would mean that she was pregnant for over 

10 months; (3) she gave specific dates in her sworn statement regarding when she went 

into hiding at her mother’s house but at her hearing she could not remember how long she 

remained in hiding; (4) she indicated that she was subject to a fine in her statement but 

she did not mention it during her testimony; (5) her demeanor undercut her credibility 

because there were long pauses before she answered questions and her testimony lacked 

narrative and was not persuasive; and (6) she did not provide reliable, independent 

evidence to corroborate her testimony in that her husband who lives in the United States 

did not testify on her behalf, and the letters from her husband and father were too similar 

to have been written independently. In addition, the IJ determined that there was nothing 

in the background material to support Liu’s claim that pregnant, unwed mothers in Fujian 

were required to undergo abortions. The IJ thus concluded that Liu had failed to proffer 

sufficient credible evidence to meet her burden of proof to establish eligibility for asylum 

or withholding of removal. The IJ also determined that Liu’s torture claim was not 

credible.

Liu obtained new counsel and appealed to the Board of Immigration Appeals. In 

her brief on appeal, Liu contended that the IJ’s adverse credibility finding was clearly 

erroneous and should be reversed. Liu then submitted an item titled “Supplement to 

Appeal Brief,” to which she attached new evidence of the birth of her second child, a son 

born in February, 2011, and additional background information on country conditions in 

China.

On August 3, 2012, the Board dismissed Liu’s appeal, concluding that the IJ’s 

adverse credibility determination was not clearly erroneous, and that the IJ had provided 
5

specific and cogent reasons for disbelieving Liu. The Board agreed with the IJ that Liu, 

when testifying, gave two different dates regarding when her first pregnancy was 

discovered, and the Board rejected her explanation that, in giving two dates, she was 

merely referring to two different dates on which she had attempted to register for a 

marriage certificate. The Board agreed that Liu’s testimony concerning her second 

pregnancy meant that she had been pregnant for over 10 months, which was implausible. 

The Board agreed that Liu’s uncertain testimony about the dates when she hid at her 

mother’s house did not match her asylum statement. The Board agreed that, although Liu 

had indicated that she was subject to a fine in her statement, she did not mention it during 

her testimony. The Board noted that Liu could not remember the name of the friend in 

whose house she was hiding when avoiding the family planning authorities from 2007 

until 2009. The Board also credited the IJ’s analysis of Liu’s demeanor, and agreed with 

the IJ that Liu did not independently corroborate her claim. The Board agreed that Liu’s 

explanation for why her husband did not appear on her behalf to testify (he was working) 

was inadequate, and agreed that the letters from her husband and father were suspiciously 

similar. The Board also upheld the IJ’s CAT determination. The Board did not address 

Liu’s supplemental brief and new evidence.

Liu has timely petitioned for review of the Board’s decision. We have jurisdiction 

under 8 U.S.C. § 1252(a)(1), (b)(1). In her brief on appeal, Liu argues that the IJ’s 

adverse credibility determination is not supported by substantial evidence, and that the 

Board abused its discretion by “summarily” denying her application for statutory 

withholding of removal and by “totally bypassing” the issue Liu first raised on appeal of 
6

having a well-founded fear of forced sterilization in light of the birth of her second child. 

See Petitioner’s Brief, at 4.

With respect to the IJ’s adverse credibility determination, Liu argues that the 

agency’s finding that she gave two different dates regarding when her first pregnancy 

was discovered is unsupported by the record and entirely without foundation because, 

when her testimony is read as a whole, it is patently clear that she was only trying to 

explain that she had attempted to apply for a marriage certificate on two different dates. 

See id. at 18-20, 22. Liu also argues that a 10-month pregnancy is not humanly 

impossible, see id. at 24; she did not give “specific dates” in her statement about when 

she was hiding in her mother’s home, see id. at 27; the Board engaged in fact-finding 

when it determined that she was not credible because she did not remember the name of 

the friend she stayed with prior to departing for the United States, see id. at 29; and she 

did in fact mention a fine during her testimony, see id. at 31-33. Liu argues that her long 

pauses in giving answers to questions were the fault of prior counsel for asking 

“unfocused open-ended questions,” id. at 40, that the IJ was sarcastic and biased, see id.

at 44, and that her testimony did not lack a narrative thread, see id. at 48-50. She argues 

that there is no evidence in the record to support the IJ’s conclusion that her husband’s 

and father’s letters were “forgeries,” see id. at 51-55, and she provided a sufficient 

explanation for why her husband did not appear at her hearing, see id. at 57.

We will deny the petition for review. When the Board issues a separate opinion, 

we review the Board’s disposition and look to the IJ’s decision only insofar as the Board 

has deferred to it, see Huang v. Att’y Gen. of U.S., 620 F.3d 372, 379 (3d Cir. 2010), 

but, in Liu’s case, the Board relied significantly on the IJ’s findings. We will thus review 
7

both decisions, see Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). The agency’s 

factual determinations are upheld if they are supported by reasonable, substantial, and 

probative evidence on the record considered as a whole. Immigration & Naturalization 

Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this deferential standard of 

review, we uphold the agency’s determination unless “any reasonable adjudicator would 

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Adverse 

credibility determinations are reviewed for substantial evidence, see Chen, 376 F.3d at 

222. We note that the INA provides in pertinent part that “a person who has been forced 

to abort a pregnancy or to undergo a procedure or for other resistance to a coercive 

population control program, shall be deemed to have been persecuted on account of 

political opinion.” INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B).

Under the REAL ID Act of 2005, there is no presumption of credibility. 8 U.S.C. 

§ 1158(b)(1)(B)(iii). Further, the IJ may assess credibility based on “the totality of 

circumstances, and all relevant factors,” including:

... the demeanor, candor, or responsiveness of the applicant or witness, the 

inherent plausibility of the applicant’s ... account, the consistency between 

the applicant’s ... written and oral statements (whenever made and whether 

or not under oath, and considering the circumstances under which the 

statements were made), the internal consistency of each such statement, the 

consistency of such statements with other evidence of record (including the 

reports of the Department of State on country conditions), and any 

inaccuracies or falsehoods in such statements, without regard to whether an 

inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's 

claim, or any other relevant factor. 

Id. We have explained that the IJ “alone is in a position to observe an alien’s tone and 

demeanor” and is “uniquely qualified to decide whether an alien’s testimony has about it 

the ring of truth.” Lin v. Att’y Gen. of U.S., 543 F.3d 114, 128 (3d Cir. 2008) (quoting 

Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003)).
8

Based on the “totality of the circumstances” and “all relevant factors,” the record 

does not compel the conclusion that Liu was credible. Even if we harbor doubts about 

whether Liu actually gave two different dates regarding when her first pregnancy was 

discovered, A.R. 193 (“I register for – I register – apply for the marriage certificate was 

in 1999, January 23, and the second time was in 1999, March 15.”), the remainder of the 

IJ’s findings are supported by substantial evidence. A ten-month pregnancy is 

implausible; Liu said in her statement that she hid at her mother’s house between 

February, 2000 and April, 2000, A.R. 461, but she testified that she could not remember 

how long she was in hiding at her mother’s house, A.R. 197; Liu did not mention the fine 

in her testimony until she was specifically asked about it by the IJ, A.R. 214; a negative 

inference may be drawn from the fact that her husband, with whom she lives in the 

United States, went to work instead of testifying in support of her application; the letters 

from Liu’s husband and father, which do corroborate her claim, were nonetheless so 

similar that her testimony that they were written independently need not be believed;1and 

Liu’s testimony overall was indeed hesitant, A.R. 201. We reject as unpersuasive Liu’s 

argument that prior counsel’s open-ended questioning caused her demeanor to suffer. 

We also reject as unpersuasive her argument that the IJ “gloated” over her inability to 

respond effectively to her counsel’s open-ended questions and thus exhibited bias.

Liu argues that the Board impermissibly engaged in fact-finding when it noted that 

she could not remember the name of the friend in whose house she was hiding before she 

 

1

The IJ used the word “forgeries” to describe the letters, which looked like they were 

written by the same individual from a common template. The INA makes it unlawful to 

forge documents for the purpose of obtaining an immigration benefit, see 8 U.S.C. § 

1324c, but we do not understand the Board to have upheld a finding that the letters were 

forgeries. The Board upheld only the finding that Liu’s testimony that the letters were 

independently written was undercut by the similarity in the letters.
9

departed for the United States, but the Board’s mention of the undisputed factual record 

in providing additional support for the IJ’s adverse credibility finding does not mean that 

it engaged in impermissible fact-finding. See Wallace v. Gonzales, 463 F.3d 135, 141 

(2d Cir. 2006) (where Board did not reject any factual determination made by IJ it did not 

engage in impermissible fact-finding and thereby exceed its authority under 8 C.F.R. § 

1003.1(d)(3)).

Accordingly, based on the totality of the circumstances, 8 U.S.C. § 

1158(b)(1)(B)(iii); cf. Wang v. Immigration & Naturalization Serv., 352 F.3d 1250, 1259 

(9th Cir. 3003) (reviewing court need not agree with every single ground for agency’s 

adverse credibility determination so long as determination is supported by substantial 

evidence), we are not compelled to conclude that Liu proffered sufficient credible 

evidence to meet her burden of proof to establish eligibility for relief. The agency 

properly denied Liu’s claims for asylum, withholding of removal, and protection under 

the CAT.

Last, Liu has argued that the Board completely overlooked the issue she first 

raised on appeal of having a well-founded fear of forced sterilization in light of the birth 

of her second child, see Petitioner’s Brief, at 62, and the Attorney General has invited us 

to “partially” remand this matter because the new evidence Liu submitted to the Board 

with her supplemental brief, which the Board did not address, could have been treated by 

the Board as a motion to remand under 8 C.F.R. § 1003.1(d)(3)(iv). We decline this

invitation for a partial remand. The regulation provides that “[a] party asserting that the 

Board cannot properly resolve an appeal without further factfinding must file a motion 

for remand. If further factfinding is needed in a particular case, the Board may remand 
10

the proceeding to the immigration judge or, as appropriate, to the Service.” Id. at 

1003.1(d)(3)(iv). Liu did not file a motion for remand as required by the regulation and 

we thus cannot conclude that the Board erred in not addressing the new evidence. Liu 

may file a motion to reopen, as provided for in 8 C.F.R. § 1003.2(c)(1)-(3), and present 

her new evidence to the Board in that motion.

For the foregoing reasons, we will deny the petition for review.