2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-1-2013

De Wen Lui v. Attorney General USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2732

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2732

___________

DE WEN LUI,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A098-715-331)

Immigration Judge: Honorable Miriam Mills

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 26, 2012

Before: FISHER, GARTH and ROTH, Circuit Judges.

(Opinion filed: February 1, 2013)

___________

OPINION

___________

PER CURIAM

Lui, a native and citizen of China, petitions for review of a decision by the Board 

of Immigration Appeals (“BIA”) which dismissed his appeal of an immigration judge’s
2

(“IJ”) decision denying his applications for asylum, withholding of removal, and 

protection under the Convention Against Torture.1

I.

Lui was served with a Notice to Appear in December 2004, two days after his 

arrival in the United States. He was charged with removability pursuant to 8 U.S.C. 

§ 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or 

paroled. Lui conceded removability and sought asylum, withholding of removal, and 

CAT protection with the immigration court.

Lui claimed that because his wife was under 24 years old at the time they were 

married, they were unable to obtain a permit to have a child. However, his wife became 

pregnant shortly after their request for a permit was denied and, two days after he learned 

of the pregnancy, a family planning official ordered his wife to report for a physical 

examination. In fear of the pregnancy’s discovery, he and his wife went into hiding. Lui 

claimed that family planning officials thereafter came to his house, harassed his family 

members, and destroyed his belongings, and, as a result of his wife’s pregnancy, Lui was 

fined and his father was arrested. His wife eventually turned herself in and was forced to 

have an abortion. Lui claimed that he still owes much of the fine levied against him, and 

 1 The Board of Immigration Appeals affirmed the decision of the Immigration 

Judge denying asylum, withholding of removal, and CAT protection to the petitioner as 

he had not carried his burden of establishing eligibility for any relief.
3

would be beaten, jailed, and tortured upon his return to China as a result. Moreover, he 

contends that he and his wife may face sterilization by the Chinese government.

After a hearing, the IJ determined that Lui was not credible and failed to 

sufficiently corroborate his claims. The IJ therefore denied his applications for relief and 

ordered him removed to China. On appeal, the BIA determined that the IJ’s adverse 

credibility finding was not clearly erroneous and agreed that Lui had provided 

insufficient corroboration for his claim. The BIA therefore dismissed his appeal, and Lui 

timely petitioned this Court for review.

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. 

§ 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001). We review 

factual findings, including any credibility determinations, under a substantial evidence 

standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005). Under that standard, 

we must uphold the BIA’s decision unless the evidence not only supports a contrary 

conclusion, but compels it. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 

2001). The burden of establishing eligibility for asylum, withholding of removal, and 
4

relief under the CAT is on the applicant. Toure v. Att’y Gen., 443 F.3d 310, 317 (3d Cir. 

2006) (citing 8 C.F.R. § 208.13(a)).2

III.

Lui presently argues that the IJ erred in finding his testimony improbable and 

incredible. Among other things, the IJ found that Lui’s contention that his then-twentythree-year-old wife was underage for a birth permit was inconsistent with the family 

planning regulations he submitted as evidence. Although Lui argues that the birth of his 

child did not qualify as a “late childbearing” under those regulations, see A.R. 424, the 

only regulations relevant to late childbearing provide that “citizens who practice late 

marriage and late childbirth shall be awarded with extended leaves for marriage and 

childbirth or other benefits.” A.R. 418. Indeed, nothing in the record – save Lui’s 

testimony – indicates that only “late childbearing” is permissible or that he and his wife 

were otherwise ineligible to have a child. Although the regulations do forbid “early 

childbirth,” the definition of that term makes no mention of a woman's age, and the 

provision does not apply to the circumstances Lui described because he and his wife were 

married and having their first child. A.R. 426.

 2 Because Lui 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 to the heart of his claim. See Lin v. Att’y Gen., 543 F.3d 

114, 119 n.5 (3d Cir. 2008). Rather, the REAL ID Act permits credibility determinations 

to be based on observations of Lui’s demeanor, the plausibility of his story, and the 

consistency of his statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuniya v. Att’y Gen., 

463 F.3d 316, 322 n.7 (3d Cir. 2006).
5

In fact, the regulations Lui submitted as evidence are inconsistent with the 

requirements he claims led to a forced abortion. They provide generally that “[a]fter 

approval is granted for a couple to have an additional child, the birth must occur at least 

four years after the previous child’s birth, and the wife must be at least 25 years of age.” 

A.R. 426. The regulations therefore appear to contemplate that children will be born to 

women younger than twenty-four: if, as Lui contends, a woman must be twenty-four 

years old to obtain permission to have her first child, a woman younger than twenty-eight 

years old could not, as a matter of course, have a second child four years after her first 

and comply with the rule. Lui offers no explanation of this inconsistency.

Accordingly, we are not compelled to disagree with the determination that Lui’s 

testimony regarding his wife’s allegedly forced abortion was not credible. The record 

likewise supports the determination that Lui failed to demonstrate that he will be 

mistreated upon return to China. We therefore find no error in the BIA’s conclusion that 

he is not entitled to relief.

3

IV.

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

 3 Because Lui is not entitled to relief, we need not address Lui’s challenges to 

other aspects of the BIA’s adverse credibility or corroboration analysis. Any errors in 

those aspects of the BIA’s decision would have been harmless and would not justify 

granting the petition for review. See Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d 

Cir. 2011) (“[W]e will view an error as harmless and not necessitating a remand to the 

BIA when it is highly probable that the error did not affect the outcome of the case.”).