Gang Yong Cai v. United States Attorney General

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 06-3077
_______________
GANG YONG CAI,
Petitioner,
v.
UNITED STATES ATTORNEY GENERAL
Respondent.
______________
On Petition for Review of an Order of the
Board of Immigration Appeals
U.S. Department of Justice, Executive Office of Immigration Review
(BIA No. A97-974-086)
I.J. Henry S. Dogin
_____________
Argued June 28, 2007
______________
Before: BARRY, FUENTES, and GARTH, Circuit Judges
(Opinion Filed: October 23, 2007)
Theodore N. Cox [Argued]
401 Broadway, Suite 701
New York, NY 10013
Counsel for Petitioner
Peter D. Keisler
Richard M. Evans
Nancy E. Friedman

-- 1 of 13 --

1Counsel for the government was scheduled to argue this case before the panel on June
28, 2007. However, because of a scheduling error, counsel was unable to attend. By letter faxed
to the Court on the date of argument, the government consented to submit the matter on its
written brief and acknowledged that it understood that petitioner would present oral argument as
scheduled.
2
Office of Immigration Litigation
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent1
____________________
OPINION
____________________
Garth, Circuit Judge:
Petitioner Gang Yong Cai seeks review of a final order of removal entered by the
Board of Immigration Appeals (“BIA”) on June 5, 2006. The BIA adopted and affirmed the
decision of the Immigration Judge (“IJ”) to deny petitioner’s request for political asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252. We will deny the
petition for review.
I
Petitioner filed applications for asylum and withholding of removal, claiming past
persecution in China on account of political opinion because the government forced his wife
to have an abortion. He also applied for CAT protection. At a hearing before the IJ, he

-- 2 of 13 --

3
testified in support of these applications.
Petitioner testified that he was born on January 30, 1975, in Longfeng Village, Fujian,
China. He stated that he married his wife, Bi Yun Zheng (“Zheng”), in a traditional
ceremony on October 1, 1995. Petitioner claimed that he and Zheng then had a daughter,
born on August 14, 1996. Petitioner did not register their marriage with the government until
March 3, 1997.
Petitioner testified that, when he went to register their marriage on that date, Zheng
was required to have a physical examination. The exam disclosed that Zheng already had
a child and that she was one month pregnant. Petitioner testified that three people
immediately took his wife to an operating room for an abortion. Zheng was also fitted for
an IUD.
The marriage certificate was issued on March 4, 1997. A few days later, a village
official fined the couple 10,000 RMB for “early birth and early marriage.” (Administrative
Record (“A.R.”) 82.) Petitioner stated that he and his wife paid the fine in full on March 8,
1997. The couple was issued a receipt, but, as petitioner explained, the receipt used an
incorrect Chinese character for one of the characters in petitioner’s name.
Petitioner stated that when he and Zheng attempted to register their daughter into their
Household Registration on May 13, 1999, the misspelling of his name on the receipt caused
problems. The town issued a new receipt on June 2, 1999. (Ex. 14, A.R. 219.) This receipt
stated that “[in] November 1996, [Zheng] had IUD insertion, and was fined ten thousand
Yuan for giving birth to more than one child.” See Ex. 14, A.R. 219 (emphasis added).

-- 3 of 13 --

2The document indicates that “23,000 Yuan” is “corrected from 28,000.” See Ex. 14,
A.R. 134.
4
Interestingly, it also stated that she had given birth to no male children and to one female
child, and that her “first child” had been born in August 1996. (Ex. 14, A.R. 219.)
Even though petitioner was told that the March 1997 fine would be the last he would
receive, petitioner and Zheng were again fined on January 11, 2000, this time 28,000 RMB.
Petitioner testified that instead of crediting the 10,000 RMB he already paid, the government
only credited him for paying 5,000 RMB, resulting in a new fine of 23,000 RMB.2 (Ex. 23,
A.R. 134.) According to the document, this fine was due because Zheng “gave birth to one
girl on March 1996, which violated the premature birth giving age.” (Ex. 23, A.R. 134.)
Petitioner stated that his aunt, who worked for the town family planning division,
advised him to postpone paying this fine. On January 14, 2000, petitioner and his wife fled
to Shangdong Province, where they stayed for a year, and then to Fuzhou City. Their
daughter stayed with petitioner’s parents. Petitioner testified that because they fled, Zheng
was unable to attend her required periodic gynecological exams by the family planning
division to ensure the IUD remained in place. Petitioner said that his aunt paid a doctor 200
RMB at the time of each missed exam so the doctor would sign the form indicating Zheng’s
IUD was in place and she was not pregnant. This form indicates that Zheng has a “[b]oy and
1 girl” and, in the place where the form asks for the “month and year of birth of [the]
youngest child,” the given answer is “August 1996.” See Ex. 13, A.R. 224. It also states that
the IUD was inserted in June 1997. (See Ex. 13, A.R. 224.)

-- 4 of 13 --

5
On April 1, 2001, well after petitioner had fled, another fine notice was sent to
petitioner’s parents’ house. This notice demanded that petitioner and his wife pay 28,000
RMB. The reason stated for the fine was that Zheng “gave birth to one girl on August 1996,
which violated the premature birth giving age.” (Ex. 15, A.R. 217.)
Petitioner left China in September 2003, with the help of smugglers, and his wife left
soon after he did. Petitioner arrived in the United States on October 20, 1993, but the
smugglers took Zheng to Japan, where she remains. Petitioner stated that although it has
been ten years since the birth of their daughter, and family planning officials sometimes give
permission to rural residents to have a second child several years after their first, this
permission was not a possibility in his case. As petitioner explained, he is classified as a
rural resident but his wife is an urban resident, and urban residents cannot get permission to
have a second child. See Ex. 14, A.R. 219 (showing that petitioner is classified as
“Agricultural” and Zheng is classified as “Non-Agricultural”).
On cross-examination, petitioner was questioned about why the June 2, 1999, receipt
stated that Zheng’s IUD was inserted in November 1996, if, as petitioner testified, the
government did not know of Zheng’s first pregnancy until March 1997. Petitioner answered
that the document was written by officials and he did not know why they had written it that
way.
The IJ rendered an oral decision denying petitioner’s application for asylum,
withholding of removal, and protection under the CAT. The IJ believed many parts of
petitioner’s story, but also found that petitioner “deliberately lied to this Court” about his

-- 5 of 13 --

3Exhibit 14 is the June 2, 1999 receipt.
6
wife having an abortion. (A.R. 46.) The IJ stated that the “only documentation [supporting
this claim] is from the respondent and his wife, the two most interested persons in this case.”
(A.R. 47.) The IJ also remarked that no documentation regarding the abortion was offered
from the family planning official, his aunt, or from anyone else, nor was any official
document offered concerning the abortion. More importantly, the IJ stated that documents
in the record directly contradicted petitioner’s claim regarding the forced abortion. The IJ
stated:
I have a document that directly contradicts the respondent’s
story concerning whether or not there was an abortion. And that
is Exhibit No. 143 which was a document submitted not by the
Government, but by the respondent. The respondent’s
testimony is . . . we were married in 1995. We had a child in
1996. We wanted to register that child in 1997, and as a result
by our coming forward, it was learned that there was an
abortion. Nobody even knew these people until they came
forward in 1997. And yet the respondent submits a document in
Chinese, Exhibit 14 that has been translated, that blows his story
right out of the water. It states in 1996, she had an IUD
insertion and was fined 10,000 rmb for giving birth to more than
one child. That totally, directly contradicts his story. How I can
believe that there was an abortion when I have this bomb shell,
Exhibit No. 14? The basis of his claim for abortion is it
happened in March of 1997. There was no IUD insertion until
after March of 1997. And suddenly, we have this document that
says that there was an IUD insertion in November, 1996. Now,
that is a document submitted by respondent which directly
contradicts his story. That raises the highest credibility issue....
[W]hen I have such a credibility issue which I do not believe
there was an abortion. That is an untruth. And I will deny
asylum based on that.

-- 6 of 13 --

4Exhibit 13 is the record of Zheng’s IUD check-up examinations.
7
(A.R. 47-49.) Consequently, the IJ also denied the petition for withholding of removal, and
because the IJ found no evidence that people who flee the country without permission will
be tortured on return, the IJ denied the CAT application as well.
The BIA “adopt[ed] and affirm[ed]” the IJ’s decision, with a few additions. (A.R. 2.)
The BIA affirmed the IJ’s adverse credibility finding, concluding that it was not clearly
erroneous. (A.R. 2); see also 8 C.F.R. § 1003.1(d)(3)(I). As support, the BIA noted “two
major inconsistencies in Exhibit 14.” (A.R. 3.) First, the BIA pointed out that Exhibit 14
indicated that petitioner and his wife were fined 10,000 RMB in November 1996 , at which
point his wife also had an IUD inserted. By contrast, the BIA noted that petitioner testified
that the IUD was not inserted until March 1997, and that the check-up certificate indicates
that the IUD was not inserted until June 1997, yielding three different dates for this event,
two of which differ from the date of the abortion.
Second, the BIA stated that petitioner testified that he and his wife have only one
child, a daughter, born on August 14, 1996, and that his wife had been pregnant twice, with
the second pregnancy ending in an abortion. By contrast, the BIA noted that Exhibit 14
indicates that petitioner and his wife were fined for “giving birth to more than one child” by
November 1996, thus “indicating that the August 1996 birth was not the first one to occur.”
(A.R. 2.) The BIA added that Exhibit 134 supported this conclusion because it indicates that
the couple had a son and a daughter, the youngest born in August 1996. (A.R. 2.) The BIA

-- 7 of 13 --

5Exhibit 23 is an official document dated January 11, 2000 fine which imposed the fine of
23,000 RMB.
8
also observed that Exhibit 235 records the daughter’s birth as having occurred in March 1996,
rather than in August.
In addition to denying petitioner’s asylum claim due to these “discrepancies in the
record,” the BIA also affirmed the denial of petitioner’s application for withholding of
removal and protection under the CAT.
This petition for review followed.
II
To establish eligibility for a discretionary grant of asylum, an alien must be a refugee,
that is, a person who is unable or unwilling to return to his 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)(A). A person “who
has been forced to abort a pregnancy or to undergo involuntary sterilization” qualifies as
having been persecuted on account of political opinion, id., as does that person’s spouse. See
Chen v. Attorney General, 491 F.3d 100, 103 (3d Cir. 2007); Matter of C-Y-Z, 21 I. & N.
Dec. 915 (BIA 1997) (en banc).
It is the alien’s burden to show he is a refugee. 8 C.F.R. § 208.13(a). He can sustain
this burden either by proving past persecution, or by proving both an objectively reasonable
and subjectively genuine fear of future persecution. See Chukwu v. Attorney General, 484
F.3d 185, 188 (3d Cir. 2007).

-- 8 of 13 --

9
An alien seeking withholding of removal must establish a “clear probability” that his
life or freedom would be threatened on account of a protected ground if he were to be
returned to the proposed country of removal. 8 C.F.R. § 208.16(b); Chen v. Gonzales, 434
F.3d 212, 216 (3d Cir. 2005). This standard is stricter than the standard for asylum
eligibility.
An applicant for CAT protection must show that it is “more likely than not that he or
she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §
208.16(c)(2).
III
In cases where, as here, the BIA adopts and affirms the decision of the IJ yet also
includes additional analysis of its own, we have jurisdiction to review both the decision of
the IJ and that of the BIA. See Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir. 2005). We
review an adverse credibility determination for substantial evidence. Gao v. Ashcroft, 299
F.3d 266, 272 (3d Cir. 2002). “We look at an adverse credibility determination to ensure that
it was appropriately based on inconsistent statements, contradictory evidence, and inherently
improbable testimony.” Toure v. Attorney General of U.S., 443 F.3d 310, 325 (3d Cir. 2006)
(citation omitted). Only if no reasonable factfinder could make an adverse credibility finding
based on the record will we conclude that the adverse credibility determination was not
supported by substantial evidence. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).
IV
The adverse credibility determination regarding petitioner’s refugee status is

-- 9 of 13 --

10
supported by substantial evidence. As correctly noted by the IJ and the BIA, substantial
inconsistencies exist between petitioner’s testimony and the documents proffered to support
his claim. The first discrepancy involved the date of the IUD insertion, which directly relates
to the date of the alleged abortion. Petitioner testified that the authorities did not learn of his
daughter’s birth until his wife’s physical examination on March 3, 2007. On that day,
petitioner claims they performed a forcible abortion and inserted an IUD. The documents
submitted by petitioner, though, tell a different story. As the BIA stated, Exhibit 14, which
petitioner claims is a receipt for the payment of his first fine, states that Zheng had the IUD
inserted in November 1996, several months before petitioner claims the authorities
discovered the birth of his first child and his wife’s second pregnancy. The document also
states that the IUD was inserted after the birth of more than one child. Notably, Exhibit 13,
which petitioner claims is a genuine record of Zheng’s IUD check-ups, states that the IUD
insertion occurred in June 1997, several months after petitioner claimed it occurred.
Discrepancies also exist concerning the date petitioner’s daughter was born. As noted
above, petitioner testified that his daughter was born in August 1996. Exhibit 23, which is
the January 2000 fine notice, though, states that petitioner’s daughter was born in March
1996. Therefore, this document conflicts with petitioner’s testimony and all of the other
documents in the case.
Another discrepancy is the number of children petitioner had. Petitioner testified that
he had only one daughter, and that his wife’s second pregnancy ended in abortion. However,
as the BIA correctly stated, Exhibit 14 states that Zheng’s IUD was inserted after the birth

-- 10 of 13 --

11
of “more than one child.” Moreover, Exhibit 13 states that petitioner and his wife had two
children, one boy and one girl, with the younger child born in August 1996.
These discrepancies cast doubt on petitioner’s claim that his wife only had one child,
that his second child was aborted, and that his wife had an IUD inserted after the birth of his
first child. Petitioner’s attempt to explain away these discrepancies is unavailing. He
contends that the discrepancies are the product of “bureaucratic indifference to biographical
details” and reflect poor record keeping by the relevant authorities. (Pet. Br. at 15.)
Petitioner also contends that “no one commissioning false documents would have accepted
such a ridiculous degree of inconsistency.” (Pet. Br. at 16.)
While these contentions may be true, they do not lead to the conclusion that “no
reasonable factfinder” could conclude that the IJ and BIA’s adverse credibility
determinations were not supported by substantial evidence. Dia, 353 F.3d at 249. The
substantial evidence standard requires that petitioner do more than simply offer a “plausible”
alternative theory. Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003). Based on the
inconsistencies in the record, it is equally plausible that petitioner’s wife had two children
and then received an IUD and was not forced to undergo an abortion. Likewise, it was
plausible that petitioner was not being truthful or proffered falsified documents. Either way,
this is not our determination to make. Where the IJ and BIA make their decision and support
it with substantial evidence, we will not disturb these determinations unless the alien
demonstrates that the evidence presented “was so compelling that no reasonable fact finder
could fail to find the requisite fear of prosecution.” INS v. Elias-Zacarias, 502 U.S. 478, 481

-- 11 of 13 --

12
n.1, 483-84 (1992).
Finally, our doubts about petitioner’s testimony is substantiated by the complete
failure of his parents and aunt to even mention an abortion in their respective letters
submitted by petitioner, even though this was seemingly the couple’s primary reason for
fleeing the country. (A.R. 201, 204.)
Based on the foregoing, we hold that the IJ’s and BIA’s adverse credibility
determinations were based on substantial evidence. Accordingly, petitioner’s request for
asylum was properly denied.
V.
Petitioner additionally seeks review of the IJ and BIA’s decisions to deny his request
for withholding of removal and relief under the CAT. Both requests will be denied.
Because, as we hold today, petitioner failed to establish his eligibility for asylum under the
lesser “well-founded fear” standard, it follows that he is unable to establish his eligibility for
withholding of removal under the more stringent standard of “clear probability”of
persecution. See Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991). Furthermore, the evidence
does not compel a finding that petitioner is “more likely than not” to be tortured upon his
return to China. See 8 C.F.R. § 1208.16(c)(2). Accordingly, his petition to review the denial
of withholding of removal and relief under CAT will be denied.
VI.
For the foregoing reasons, the petition for review will be denied.
__________________

-- 12 of 13 --

13

-- 13 of 13 --