Yilan Jiang v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5092
YILAN JIANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A78-848-933)
U.S. Immigration Judge: Honorable Rosalind Malloy
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 8, 2007
Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.
(Filed December 26, 2007)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Yilan Jiang, a native and citizen of China, petitions for review of an order of the
Board of Immigration Appeals affirming the Immigration Judge’s final order of removal.
For the reasons set forth below, we will affirm.

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I.
Jiang arrived in the United States on August 12, 2001 without valid travel
documentation. INS detained her and she was later released. On August 20, 2001, INS
issued a Notice to Appear, charging Jiang with entering the United States without
permission, Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1182(a)(7)(A)(i)(I), and seeking admission to the United States by fraud or
willful misrepresentation of material facts, Section 212(a)(6)(C)(i) of the INA, 8 U.S.C. §
1182(a)(6)(C)(i). Jiang applied for relief in the form of asylum, withholding of removal,
voluntary departure and Convention Against Torture protection, on the grounds that she
was mistreated and suffered past persecution while in China. She testified she was forced
to undergo an abortion for becoming pregnant out of wedlock and suffered further
harassment when family planning officials came to her house and removed household
items after she refused to pay a fine.
Following several evidentiary hearings, the IJ denied Jiang’s applications for
asylum, withholding of removal, relief under the CAT and voluntary departure, and
ordered her removed. The IJ was not convinced Jiang had been pregnant and forced to
have an abortion, pointing to inconsistencies in her testimony and her affidavit. The IJ
also found Jiang’s failure to submit medical records of her gynecological history, which
the IJ had requested, demonstrated Jiang was not credible. Because Jiang provided
incredible testimony and showed no remorse for filing a fabricated application for

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While raised before the IJ, CAT protection is not at issue in this petition because1
Jiang does not contend she is eligible for it.
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asylum, the IJ also found Jiang knowingly filed a frivolous asylum application after
proper notice. Jiang filed a timely appeal to the Board of Immigration Appeals, which
affirmed without opinion on October 31, 2005. On November 18, 2005, Jiang filed a
petition for review and a Motion for Stay of Removal with this court.
II.
The BIA had jurisdiction over Jiang’s appeal under 8 C.F.R. § 1000.3(b)(3). We
have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). We
generally review the decision of the BIA, but where, as here, the BIA summarily affirms
the IJ without opinion, we review the IJ’s decision directly. 8 C.F.R. § 3.1(e)(4); Partyka
v. Attorney General, 417 F.3d 408, 411 (3d Cir. 2005). We review factual determinations
of the IJ, including credibility determinations, for substantial evidence. He Chun Chen v.
Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We thus defer to the IJ’s credibility
determinations unless the findings are not grounded on the record. Dia v. Ashcroft, 353
F.3d 228, 249 (3d Cir. 2003)
III.
The Government contends that we lack jurisdiction to consider several of Jiang’s
claims because Jiang failed to raise them on appeal to the BIA. Statutory exhaustion1
requirements are jurisdictional. Xie v. Ashcroft, 359 F.3d 239, 246 n.8 (3d Cir. 2004). We

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review questions of our jurisdiction de novo. Valansi v. Ashcroft, 278 F.3d 203, 207-08
(3d Cir. 2002). An alien must exhaust all administrative remedies available as of right
before we may review a final order of removal. 8 U.S.C. § 1252(d)(1). A petitioner
“need not do much to alert the Board that [she] is raising an issue,” Joseph v. Attorney
General of U.S., 465 F.3d 123, 126 (3d Cir. 2006), and has exhausted her administrative
remedies before the BIA “so long as [she] makes some effort, however insufficient, to
place the Board on notice of a straightforward issue being raised on appeal.” Yan Lan Wu
v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005) (citing Bhiski v. Ashcroft, 373 F.3d 363,
367-68 (3d Cir. 2004)).
The Government contends Jiang failed to exhaust her claim that the IJ erred in
finding her application for asylum frivolous. The Government claims, because Jiang did
not exhaust this claim, that she is “permanently ineligible” for asylum independent of any
review that the IJ lacked substantial evidence to find she was ineligible for asylum. But
on appeal to the BIA, Jiang challenged the IJ’s refusal to grant asylum, contesting the IJ’s
credibility determination and the IJ’s findings regarding whether Jiang suffered
persecution. These claims implicitly challenge the IJ’s finding that her asylum
application was frivolous and gave the BIA “the opportunity to resolve [the] controversy
or correct its own errors before judicial intervention.” Zara v. Ashcroft, 383 F.3d 927, 931
(9th Cir. 2004). If Jiang had prevailed on her claim before the BIA, it would not have
been frivolous. Therefore, she sufficiently exhausted this claim.

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Second, the Government contends Jiang failed to exhaust her claim that the IJ
erroneously speculated about Chinese government practices. Jiang argued in her appeal
to the BIA that the IJ erred in finding her incredible. The contention that the IJ engaged
in speculation falls within this claim. Jiang’s argument provided sufficient notice to the
BIA that “there was a claim of error hovering around the Immigration Judge’s findings.”
Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005).
Third, the Government contends Jiang failed to exhaust her claim that the IJ
improperly relied on the absence of corroborating evidence concerning Jiang’s abortion
because the IJ did not follow our three-part inquiry for corroborating evidence. See
Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001). Jiang did not specifically argue to
the BIA that the IJ failed to follow this inquiry. But the BIA considered whether the IJ
improperly relied on the absence of this evidence when it affirmed the IJ’s adverse
credibility determination. Jiang sufficiently put the BIA on notice of the issue. The
argument was before the BIA, and Jiang properly exhausted her claims.
IV.
We address the merits of Jiang’s case. Adverse credibility determinations are
reviewed for substantial evidence. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
Adverse credibility determinations based on speculation or conjecture are reversible. Id.
To support an adverse credibility finding, discrepancies in an alien’s testimony must

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involve the “‘heart of the asylum claim.’” Id (quoting Ceballos-Castillo v. INS, 904 F.2d
519, 520 (9th Cir.1990)).
Here, the IJ’s adverse credibility determination was based on the record, which
revealed multiple inconsistencies in Jiang’s testimony. The IJ found Jiang’s testimony
and affidavit were inconsistent with regard to where she was living at the time of the
abortion, the dates of the family planning officials’ visits, the involvement of her
boyfriend in these visits, the name of the hospital where the abortion was performed, and
the name of the doctor who performed the abortion. The IJ found Jiang could not
adequately explain these problems, which are not “minor inconsistencies . . . that ‘reveal
nothing about an asylum applicant’s fear for [her] safety.’” Berishaj v. Ashcroft, 378 F.3d
314, 323 (3d Cir. 2004) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.
1988). The inconsistencies are relevant to her claim of persecution, as they involve the
people, places, and times involved in the alleged abortion and subsequent visits by the
family planning officials. The IJ also considered the failure of Jiang to submit attainable
hospital records detailing whether she had undergone an abortion. This failure provided
additional support for an adverse credibility determination. Accordingly, the IJ had
substantial evidence to make the adverse credibility determination.
Jiang contends the IJ’s decision was based on impermissible speculation. Adverse
credibility determinations may not be based on speculation or conjecture. Gao, 299 F.3d
at 276. An IJ must support an adverse credibility finding with “specific[,] cogent

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reasons.” Id. Jiang points to the IJ’s decision in which the IJ found it “odd” that Jiang’s
boyfriend was not pursued by the family planning officials for collection of the fine. The
IJ explained she had heard another case in which a male asylum applicant, rather than his
girlfriend, had been harassed when the girlfriend had undergone an abortion. The IJ also
found it “peculiar” that Jiang’s boyfriend in China and husband in the United States had
similar names. But these comments are not central to the IJ’s conclusions. The IJ’s
ultimate conclusions “logically flow from the facts she considered.” Dia, 353 F.3d 228,
251 (3d Cir. 2003). The IJ relied on the many inconsistencies in Jiang’s testimony and
affidavit in reaching her conclusions. Accordingly, the IJ supported her adverse
credibility finding with specific, cogent reasons.
Jiang also contends the IJ did not follow our three part test for considering
corroborating evidence when the IJ found that Jiang’s failure to submit the medical
records the IJ requested contributed to her adverse credibility determination. To require
corroborating evidence, we demand from the IJ: “(1) an identification of the facts for
which it is reasonable to expect corroboration; (2) an inquiry as to whether the applicant
has provided information corroborating the relevant facts; and if he or she has not, (3) an
analysis of whether the applicant has adequately explained his or her failure to do so.”
Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001) (internal quotation marks omitted).
First, the IJ believed Jiang’s gynecological history could reveal whether she had
obtained an abortion, and the IJ said Jiang could have obtained the documents at a

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hospital two blocks from the Immigration Court. Because the IJ found the records were
“central to [Jiang’s] claim and easily subject to verification,” Abdulai, 239 F.3d at 543
(quoting In re S-M-J, 21 I. & N. Dec. 722, 1997 WL 80984 (1997)), the IJ identified facts
for which it was reasonable to require corroboration.
Second, Jiang did not provide the requisite corroboration. Jiang submitted hospital
records reflecting appointment dates with no information regarding her gynecological
history. The IJ correctly found Jiang did not submit the proper corroborating evidence,
especially in light of the ease of obtaining the proper records.
Third, the IJ explained Jiang was represented by counsel, who was aware of the
importance of obtaining these documents but failed to obtain them. The IJ said this
failure to obtain the documents leads to an adverse credibility determination, implicitly
finding Jiang did not adequately explain her failure to obtain the records. Jiang
improperly relies on Dia, a case in which the IJ expressed a desire for corroborating
evidence, discouraged the petitioner from providing it, but then penalized the petitioner
for not providing it. Dia, 353 F.3d at 254. Unlike in Dia, the IJ here specified exactly
what documentation she desired and why the documentation was important, and
examined the documents submitted and explained why they were inadequate. Therefore,
the IJ properly found Jiang’s failure to submit corroborating evidence contributed to her
adverse credibility finding.

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Jiang also contends the IJ erred in finding Jiang’s application for asylum frivolous.
8 C.F.R. § 208.20 provides:
[A]n asylum application is frivolous if any of its material elements is
deliberately fabricated. Such finding shall only be made if the immigration
judge or the Board is satisfied that the applicant, during the course of the
proceedings, has had sufficient opportunity to account for any discrepancies
or implausible aspects of the claim.
8 C.F.R. § 208.20. An IJ must consider the asylum application as a whole when
determining if it was fabricated, and an adverse credibility finding, while relevant, does
not necessarily equate to a finding of frivolousness. Muhanna v. Gonzales, 399 F.3d 582,
588-89 (3d Cir. 2005). Jiang was given a full and fair opportunity to present evidence,
Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003), and the IJ found the
application was frivolous by considering the application as a whole. Compare Muhanna,
399 F.3d at 588 (reversing an IJ’s finding of frivolousness where the IJ halted the
proceedings and found the petitioner’s application was frivolous without considering all
of the petitioner’s claims). The IJ warned Jiang of the serious consequences of filing a
frivolous application. After considering all the evidence Jiang wished to submit, the IJ
found Jiang filed a frivolous asylum application because material elements of her
application were deliberately fabricated.
V.
For the foregoing reasons, we will deny the petition and affirm the BIA’s order.

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