2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-4-2010

Shiqi Xue v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2901

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Shiqi Xue v. Atty Gen USA" (2010). 2010 Decisions. Paper 1195.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1195
IMG-222 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2901

___________

SHIQI XUE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A099-573-425)

Immigration Judge: Susan Roy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 26, 2010

Before: FUENTES, ROTH AND VAN ANTWERPEN, Circuit Judges

(Opinion filed: June 4, 2010)

___________

OPINION

___________

PER CURIAM

Shiqi Xue, a native and citizen of China, seeks review of a May 29, 2009 decision

by the Board of Immigration Appeals (“BIA”), dismissing his appeal from the denial of
2

his requests for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). For the reasons that follow, we will deny the petition for

review. 

I.

Xue arrived in the United States in 2006, without proper documentation. In May

2007, he filed an application for asylum, withholding of removal, and protection under

the CAT, in which he alleged that his wife had suffered a forced abortion and sterilization

in China and that his business had been shut down by the Chinese family planning

authorities as a result of their violation of China’s population control laws. At his merits

hearing, Xue testified that he was married in 1996, and had his first child, a daughter, on

January 9, 1997. (AR 173.) He testified that in March 1997, at the request of family

planning officials, an IUD was implanted in his wife. (AR 174.) At some point in 2002,

however, the IUD fell out and Xue’s wife became pregnant. (AR 175, 197.) Xue

testified that when his wife was about five or six months pregnant, she traveled to her

mother’s house for New Year’s Eve. The family planning officials in that village found

out about the pregnancy and forced her to undergo an abortion. (AR 176-177.) Xue

testified that he did not learn of the abortion until the following day because he had been

at work at a construction site for the previous two days without access to a phone. Xue

testified that when he found out he was very angry and went directly to the family

planning office, but it was midnight and the doorman would not let him in. (AR 177.) 
3

He then went to his mother-in-law’s house, where his wife confirmed that she had been

forced to terminate her pregnancy. (AR 178.) 

About a month later, Xue’s wife was fitted with another IUD. (AR 178-79.) Xue

testified that he wanted more children, so in February 2004, he hired a private doctor to

remove the IUD. (AR 179.) In June 2004, Xue and his wife learned that she was

pregnant again. (Id.) Xue told his wife to remain home from work and limit contact with

outsiders to avoid detection. (Id.) In June 2004, Xue’s wife skipped her check-up

appointment with the family planning authorities. (AR 225.) Xue testified that during the

same month he went to a government agency to request a replacement marriage

certificate. (AR 224.) Xue’s second child was born on February 15, 2005. According to

Xue, the family planning officials found out about the birth, and on July 14, 2005, they

came to his office looking to sterilize, arrest, and fine him. (AR 190.) Xue was not there

at the time, but found out when a co-worker called him and told him that officials had

come looking for him and had closed down his business. (AR 191.) 

Xue testified that after this incident, he decided to escape. (AR 192.) He went to a

friend’s house for four months, then to his wife’s sister’s house for two months, and then

on April 16, 2006, he left China. (Id.) He now lives in New Jersey with his cousin and

works for a construction company in New York City. Xue maintains that the family

planning authorities were asking his co-workers questions about him and his whereabouts

as recently as 20 days prior to his merits hearing. (AR 226-27.) He also testified that
4

while he was still in hiding at his friend’s house in China, he talked to his wife and she

told him that she had been forcibly sterilized. (AR 193.) Xue testified that he is afraid to

return to China because he believes that he will be jailed and punished for violating the

family planning policy. (AR 194.) 

Applying REAL ID ACT standards, the IJ found that Xue’s testimony lacked

credibility because it was unclear, inconsistent, and contained multiple discrepancies and

omissions that went to the heart of his claims. The IJ further found that, even assuming

his credibility, Xue had not carried his burden of demonstrating that he suffered past

persecution or possessed a well-founded fear of future persecution. The IJ also found that

Xue did not demonstrate eligibility for withholding of removal or CAT protection

because those claims were based on the same testimony that the IJ had determined was

not credible. Xue appealed. The BIA dismissed Xue’s appeal, holding that even if Xue

had testified credibly, he had not established past persecution based on his wife’s forced

abortion and sterilization, or a well-founded fear of future persecution on account of

“other resistance” to the population control law. The BIA also concluded that the IJ’s

credibility determination was not clearly erroneous. This petition for review followed. 

II. 

We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a). 

When the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s

decision, “we have authority to review the decisions of both the IJ and BIA.” Chen v.
5

Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review adverse credibility

determinations for substantial evidence. See id. Because Xue filed his asylum

application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or

falsehoods upon which the adverse credibility finding is based need not go the heart of his

claim. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). Rather, the REAL

ID Act permits credibility determinations to be based on observations of Xue’s demeanor,

the plausibility of his story, the consistency of his statements, or “any other relevant

factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). We must defer to and uphold the IJ’s adverse

credibility determinations “unless the evidence not only supports a contrary conclusion,

but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (citations

omitted). 

III.

Xue protests that the IJ’s adverse credibility finding was neither specific nor

cogent, and was based on factual determinations unsupported by the record. We have

closely reviewed the record and conclude that substantial evidence supports the adverse

credibility determination in this case. Both the BIA and IJ provided numerous reasons for

concluding that Xue lacked credibility. First, the IJ noted that although Xue testified that

he had been working at a construction company when his wife was taken to have the

abortion, this employer is not listed anywhere on his I-589 application. Xue’s explanation

for this omission was that he did not think it was important, even though this job kept Xue
6

from finding out about the abortion until the following day – a key aspect of his testimony

concerning this incident. Second, the IJ found it inconsistent that Xue would have sought

to replace his marriage certificate in June 2004, the same month that his wife purposely

missed her gynecological exam, in light of his testimony that he had told his wife they

needed to be careful and limit contact with outsiders while she was pregnant. When

questioned about his motivation, Xue initially stated that he was not afraid to renew the

certificate because his wife had not missed her checkup yet, but after he was shown his I589 indicating that she missed her appointment in June 2004, Xue changed his testimony

and stated that he was not concerned because the marriage certification and family

planning offices were located in different parts of town. (AR 225.) The IJ was also

troubled by Xue’s testimony that officials in China are still looking for him. Xue testified

that twenty days or so before his hearing, his wife told him that his former co-workers

were approached by plain clothes officers identifying themselves as family planning

officials and looking for Xue to arrest him. However, this information came to light only

through questioning at the end of the hearing, and was not provided in his I-589 or in any

other document. Xue testified that he did not think to amend his application, but as this

testimony concerns the very reason that Xue is afraid to return to China, the IJ found it to

be a last-minute attempt to buttress his claim. The record does not compel a contrary

conclusion. 

The BIA reviewed the IJ’s decision and concluded that the IJ was not unreasonable
 For example, we agree that Xue’s testimony that he went to his mother-in-law’s 1

house on December 29th, not December 28th, was eventually clarified on crossexamination. However, the IJ’s assessment that Xue’s testimony about this incident was

“not forthright or straightforward or candid” is also supported by the record. (AR 59.)

7

in finding that Xue’s testimony was generally convoluted and non-responsive. The BIA

also noted Xue’s lack of evidence or affidavits corroborating key parts of his claim, such

as the claim that he owned a business, or that family planning officials were still looking

for him. In response, Xue attempts to demonstrate that his testimony was internally

consistent, and that his explanations for failing to provide corroboration were reasonable. 

Although Xue may be able to rehabilitate his testimony in one or two respects, we find 1

that the IJ’s adverse credibility determination is supported by “reasonable, substantial,

and probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d

266, 272 (3d Cir. 2002) (citations omitted). 

With respect to Xue’s claims under CAT, the BIA found that Xue had not claimed

that he had been tortured in the past, and failed to establish that he more likely than not

would suffer torture in the future. This assessment is also supported by substantial

evidence. The IJ found that, for essentially the same reasons that he did not present

credible evidence of past persecution, Xue did not present credible evidence that anyone

in China would seek to torture him upon his return. 

IV.

Accordingly, the petition for review will be denied.