Xin Jie Xie v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 02-3615
XIN JIE XIE,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
Petition for Review of an Order of
the Board of Immigration Appeals
(A-70-907-033)
Argued October 16, 2003
Before: SLOVITER, ROTH, and
STAPLETON, Circuit Judges
(Filed: February 24, 2004)
Marco Pignone, III (Argued)
Wilson & Pignone
Philadelphia, PA 19103
Attorney for Petitioner
Robert D. McCallum, Jr.
Assistant Attorney General
Civil Division
Terri J. Scadron,
Assistant Director
Anthony W. Norwood
Ethan B. Kanter
John M. McAdams, Jr.
Jennifer A. Parker (Argued)
United States Department of Justice
Office of Immigration Litigation
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Petitioner Xin-Jie Xie (“Xie”) has
filed the pending Petition for Review of
the decision of the Bureau of Immigration
Appeals (“BIA”) dismissing Xie’s
application for asylum and withholding of
deportation under 8 U.S.C. §§ 1158,
1231(b)(3). In so ruling, the BIA
explicitly adopted the adverse credibility
finding of the Immigration Judge (“IJ”).
I.
Xie arrived in the United States on
May 27, 1993 as a nonimmigrant visitor
for business. He testified his company
sent him to the United States “for a certain
kind of product and merchandise research
team.” A.R. at 108.1 He was authorized to
1 There is both an Administrative
Record, cited here as A.R., and an
Appendix, a portion of which is attached
to the petitioner’s brief and the remainder
in a second volume, which we cite as
App. The opinions of the IJ and the BIA

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2
stay in this country for thirty days. He did
not leave when his visa expired and on
January 7, 1997, the Immigration and
Naturalization Service (“INS”) charged
him with deportability under 8 U.S.C. §
1251(a)(1)(B). He conceded deportability,
but requested relief in the form of asylum
and withholding of deportation or, in the
alternative, voluntary departure. Xie
claims that he “has a reasonable fear of
future persecution if he is removed to
[China].” Petitioner’s Br. at 8.2 The IJ
found that Xie was not credible. The BIA
considered Xie’s appeal, which it
dismissed with an opinion holding that the
IJ’s adverse credibility finding was
supported by the record.
Xie timely filed this Petition for
Review and we have jurisdiction under 8
U.S.C. § 1252. When the BIA has
rendered its own opinion, we review the
decision of the BIA and not the IJ. Gao v.
Ashcroft, 299 F.3d 266, 271 (3d Cir.
2002). In this case, however, for reasons
explained hereafter, we also have
jurisdiction to review the IJ’s decision.
II.
Xie was married in 1973, and he
and his wife have three children, born in
1974, 1977, and 1979 respectively. In his
application for asylum, Xie alleged that he
seeks asylum because he fathered three
children, which violated Chinese national
policy of family planning. Xie alleged that
he was detained in 1976 after the birth of
his second child and was released after his
wife had an IUD loop inserted. In his
sworn statement supplementing his asylum
application, Xie notes that when his wife
became pregnant again in 1979 despite the
IUD, she went into hiding at a relative’s
home in another village and Xie went into
hiding in yet another village, leaving his
children in the care of his parents. Unable
to locate either Xie or his wife in their
home, the local authorities became angry,
broke his door and took some of the
furniture; he and his wife lost their jobs
and were asked to pay a fine of 5,000
RMB.3 They did not have the money to
pay the fine and “We decided to leave this
country. This is why I came to America to
seek a better life.” A.R. at 308.
In his testimony at the hearing, Xie
stated that after his wife had given birth to
their daughter in 1979, government birth
control officials took her to the Province
Hospital where she was forcibly sterilized.
appear in both the Administrative Record
and the Appendix. We have chosen to
cite to them in the Appendix.
2 The brief actually states, “if he is
removed to Serbia” but we assume that
was a typographical error.
3 Xie’s asylum petition states that
he and his wife were fined 5,000 RMB at
the birth of their third child. Because
there is nothing in the record to indicate
that two separate fines were imposed and
the alleged 5,000 RMB fine is never
again referred to, we will assume he
referred to the 9,300 RMB fine discussed
infra.

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3
Xie claimed that thirteen years later,
toward the end of 1992, birth control
officials came to his home and ordered
him to pay a penalty of 9,300 RMB.4 Xie
testified that after he learned of the fine, he
argued with the birth control officials and
told them he had no more money; they
beat him up, detained him for about a
week, and released him because of his
wife’s connections but told him he had to
pay the balance of the penalty due within
three weeks. Xie left China in February
1993. His wife and children remain in
China.
III.
In his brief Xie states that he
“established a well-founded fear of
persecution on account of his political
opinion as his wife was forcibly
sterilized.” Petitioner’s Br. at 6. He
argues that he is entitled to asylum as a
“refugee,” defined in the statute as: “any
person . . . unable or unwilling to return to
. . . [his or her] 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).
In 1996, Congress amended the
definition of refugee as follows:
a person who has been
forced to abort a pregnancy
or to undergo involuntary
sterilization, or who has
been persecuted for failure
or refusal to undergo such a
procedure or for other
resistance to a coercive
population control program,
shall be deemed to have
been persecuted on account
of political opinion, and a
person who has a well
founded fear that he or she
will be forced to undergo
such a procedure or subject
to persecution for such
failure, refusal, or resistance
shall be deemed to have a
we ll founded fea r of
persecution on account of
political opinion.
8 U.S.C. § 1101(a)(42). The BIA
extended this provision to apply to spouses
of persons who have undergone coercive
birth control procedures. In re C-Y-Z, 21
I. & N. Dec. 915 (BIA 1997).
Neither the BIA nor the IJ reached
the merits of Xie’s argument that he
qualifies for asylum under the statutory
definition of refugee. As th e
Government’s brief states, the IJ “denied
Xie’s claim on the basis of an adverse
credibility determination and did not make
an alternative finding as to whether Xie’s
evidence, if deemed credible, was
4 We find nothing in the record to
support the statement in Xie’s brief that
the penalty was $9,000. Petitioner’s Br.
at 5. Instead, the IJ stated that after Xie’s
wife paid the officials 1,300 RMB the
balance of 8,000 RMB was equivalent to
approximately $1,000.

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4
sufficient to meet his burden of proof.”
Govt’s Br. at 3 n.2. Xie apparently agrees,
as his counsel stated at the oral argument
before us that the “only issue here is
credibility.”
In its opinion dismissing Xie’s
appeal, the BIA held that the IJ’s adverse
credibility finding is supported by the
record. It further stated, “[a] persecution
claim that lacks credibility cannot satisfy
the burdens of proof and persuasion
necessary to establish eligibility for
asylum or withholding of deportation. See
Matter of M-S-, 21 I. & N. Dec. 125 (BIA
1995); see generally Abdulai v. Ashcroft,
239 F.3d 542 (3d Cir. 2001).” App. at 6-7.
We will therefore limit ourselves to the
first issue as presented by the Government:
“Whether the Board’s finding that Xie
failed to meet his burden of proof is
supported by substantial evidence where
Xie’s testimony and evidence contained
several material inconsistencies, crucial
omissions, implausibilities, and was
refuted by the State Department Report
and Comments?” Govt’s Br. at 3.5
The BIA failed to find past
persecution because it found Xie to be
incredible. Our precedent is clear that
when the BIA defers to an IJ, we must
review the IJ’s decision as the final agency
decision. See Abdulai, 239 F.3d at 549
n.2. In this case, the BIA both adopted the
IJ’s adverse credibility determination and
discussed some, but not all, of the
underlying bases for the IJ’s adverse
credibility determination. As to the
remaining bases, the BIA also stated that
“the Immigration Judge found several
other inconsistencies and discrepancies
between the respon dent’s asylum
application and his testimony.” App. at 6.
In Senathirajah v. INS, 157 F.3d
210 (3d Cir. 1998), which also involved an
adverse credibility finding based, in part,
on an asylum application, we discussed
both the IJ and the BIA’s decisions. W e
did not consider the propriety of reviewing
both decisions, but we noted that “the
BIA’s ruling result[ed] in substantial part
from the deference it gave the immigration
judge’s decision,” and that the BIA
“appear[ed] to have substantially relied
upon the adverse credibility ruling of the
immigration judge.” Id. at 216. Similarly, 5 We therefore will not reach the
provocative issues of statutory
interpretation touched upon at the oral
argument. One of the issues was whether
the statutory language that a person who
has undergone an involuntary
sterilization and a person who has a fear
that she/he will be forced to undergo
such a procedure “shall be deemed” to
have been persecuted on account of
political opinion or “shall be deemed to
have a well founded fear of persecution”
establish an irrebuttable presumption.
Another issue alluded to at the oral
argument which we do not reach is the
effect of a time gap of more than 15
years between the spouse’s sterilization
and the application for asylum. We
express no opinion on these issues and
the Government’s brief does not discuss
them.

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5
in Miah v. Ashcroft, 346 F.3d 434 (3d Cir.
2003), we examined the decisions of both
the IJ and the BIA because the “BIA
adopted the IJ's analysis on corroboration
while rejecting the IJ's conclusion
regarding credibility, a conclusion which
influenced the IJ's corroboration analysis.”
Id. at 439. Likewise, the BIA in the
instant case did briefly discuss many of the
inconsistencies troubling the IJ and stated
that “[it] believe[s] that the inconsistencies
and omissions mentioned by the
Immigration Judge actually exist in the
record.” App. at 6. Although it gave only
some examples of those inconsistencies,
the BIA also appears to have substantially
relied upon the adverse credibility finding
of the IJ. Accordingly, we have
jurisdiction to review both the BIA’s and
IJ’s opinions.
In its decision, the BIA stated:
We give significant weight
to an Immigration Judge’s
adverse credibility finding.
See Matter of A-S-, 21 I&N
Dec. 1106, 1109 (BIA
1998); Matter of Burbano,
20 I&N Dec. 872, 874 (BIA
1994). Specifically, we
have stated that we accord
deference to an adverse
credibility finding based
upon the inconsistencies and
omissions regarding events
central to an alien’s asylum
claim where a review of the
record reveals that (1) such
discrepancies and omissions
actually exist; (2) the
discrepancies and omissions
provide specific and cogent
reasons for the Immigration
J u d g e ’ s c r e d i b i l i t y
determination; and (3) the
alien has not supplied a
convincing explanation for
such discrepancies and
omissions. Matter of A-S-,
supra, at 1109.
App. at 6.
Adverse credibility determinations
are reviewed under the substantial
evidence standard. Gao, 299 F.3d at 272
(citing Balasubramanrim v. INS, 143 F.3d
157, 161 (3d Cir. 1998)). Under this
standard, the Board's adverse credibility
determination must be upheld on review
unless “any reasonable adjudicator would
be compelled to conclude to the contrary.”
Id. (citing INA § 242(b)(4)(B), 8 U.S.C. §
1252(b )(4)(B)) (internal quotation
omitted). “[M]inor inconsistencies” do not
provide an adequate basis for an adverse
credibility finding. Id. Because we
conclude that there is no reason to compel
a contrary conclusion, we uphold the
BIA’s finding.
One of the principal inconsistencies
and omissions discussed by the BIA as
supporting the IJ’s finding of lack of
credibility was Xie’s failure to mention in
his written asylum application that his wife
had been sterilized. App. at 6. The IJ
stated, “If indeed his wife had been
sterilized, this would be such a traumatic
event in both his and his wife’s life that I
find it implausible and incredible that this

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6
would have been not mentioned to the
Immigration officer and would not have
been included in the I-589 application.”
App. at 17. We have reviewed Xie’s
asylum application and agree. In that
application, Xie mentioned that his wife
had an “IUD loop” inserted and that he
was asked to undergo sterilization (which
he apparently declined). A.R. at 308.
There was no reference to his wife’s
supposed forced sterilization. Given Xie’s
appreciation of the relevance of compelled
birth control, the BIA’s concern about
Xie’s failure to mention his wife’s forced
sterilization in his original written asylum
application is well taken. This is indeed a
significant event that one is not likely to
forget.
The BIA also noted the
inconsistency with respect to Xie’s
claimed detention. In his asylum
application, Xie stated that he was
detained in 1976 after the birth of his
second child6 and was released only after
his wife had an IUD loop inserted. The
BIA pointed out that the IJ noted that Xie
testified that he was detained after the birth
of his third child (which was in 1979).
App. at 6. The IJ noted an inconsistency
regarding Xie’s detention within the same
application because he responded to
question 22 that he was not detained but to
question 18 that he was detained after the
birth of his second child. Finally, both in
Xie’s supplemental statement and his
testimony he states that he was detained in
1992 following the fight he had with
officials regarding his payment of the fine,
which the IJ noted differed from the
response given in his asylum application.
App. at 18. Moreover, Xie’s asylum
application did not mention any fight with
officials. Inasmuch as Xie further testified
that he was only detained once, these
inconsistencies cannot be reconciled.
We believe the inconsistency
regarding Xie’s detention is material. He
purported to be able to tie the date of his
detention to a particular event. The IJ
found that this inconsistency “severely
weakened” Xie’s credibility. App. at 18.
The BIA also concluded that Xie’s
testimony was not consistent with the
implementation of the one-child policy.
App. at 6. Xie claims that his wife was
forcibly sterilized in October of 1979 but
the BIA noted the date because “the ‘one-
child’ policy was not promulgated until
1979 or 1980,” (citing Bureau of
Democracy, Human Rights & Labor,
China–Country Conditions and Comments
on Asylum Applications (Dec. 11, 1995)),
and “the birth control policy was not
implemented at the grass roots level until
the early 1980s.” App. at 6. Xie criticizes
the BIA’s interpretation of the China
Country Report as stating when grassroots
implementation of birth control policies
began. The Government retorts that the
6 We note parenthetically that it
appears that his second child was born
July 13, 1977, A.R. at 88, 145, but this is
not the relevant inconsistency as failure
to remember the precise year of a
detention 15 years earlier may be
explicable. A different inconsistency is
noted in the text.

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7
China Report Comments do indeed state
that the family planning policy was not
promulgated until 1979.
We have previously stated,
“Country reports . . . are the most
appropriate and perhaps the best resource
for information on political situations in
foreign nations.” Zubeda v. Ashcroft, 333
F.3d 463, 477-78 (3d Cir. 2003) (internal
quotation and citation omitted). The
relevant part of the China Report states
that “[b]y the mid-1970s, China had
stepped up efforts to limit population and
had begun to popularize the two-child
family. In 1979, the PRC promulgated a
comprehensive and highly intrusive ‘one-
child’ policy. . . .” A.R. at 285. It
continues, “How family plan ning
personnel at the grass roots implemented
the policy in the early 1980s has been the
subject of particular attention, but
criticisms of current methods continue.”
A.R. at 285.
Even assuming the Report was
vague or ambiguous, so long as the BIA
could have used the Report to conclude
that Xie’s sterilization claim is untenable,
the BIA is entitled to do so. In INS v.
Ventura, 537 U.S. 12, 17 (2002), the
Supreme Court reversed a decision of the
Court of Appeals for the Ninth Circuit that
decided an asylum application instead of
remanding to the BIA. The Court noted in
dictum that the Ninth Circuit’s reliance on
the relevant State Department report was
in error because the report was sufficiently
ambiguous to suppo rt the BIA ’s
conclusion. Because the Report relevant
to this case expressly refers to the early
1980s in connection with the Chinese
government’s population control policies,
that Rep ort constitutes substantial
evidence in support of the BIA’s
conclusion that Xie’s testimony was not
consistent with the date of the
implementation of the one-child policy.
The BIA also found Xie’s
“testimony improbable that several months
after his fine was imposed for violations of
the birth control policies, which he did not
fully pay, he was issued an official
passport for public affairs on with which
he was able to travel to the United States.”
App. at 6. The IJ also found it not
plausible that “the Chinese Government
issued him a passport, even though he
owed that Government a good portion of
the fine that had been levied against him.”
App. at 15. At the oral argument before
us, the Government offered some
elucidation of the significance of Xie’s
having received the passport on which he
traveled, as the passport for public affairs
is different from the ordinary tourist
passport. We believe Xie’s attempt during
his testimony to explain the receipt of the
passport “[b]ecause it was through a
friend’s connection they gave [him] a list,”
A.R. at 114, is sufficiently non-responsive
and unconvincing to support the BIA’s
conclusion.
Because the BIA referenced with
approval the IJ’s findings of “other
inconsistencies and discrepancies,” we
review those inconsistencies even though
they were not specifically referred to in the
BIA’s decision. The IJ noted that Xie
stated on his asylum application that after

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8
the birth of his third child he and his wife
both lost their jobs, but in his testimony
Xie stated that he did not lose his job in
China. Moreover, there was nothing in the
record to reflect that his wife had ever
worked in China.
The IJ noted Xie’s contradictory
testimony regarding when his belongings
were confiscated. Xie stated that in July
1979, when he returned to his village to
see his children, his parents informed him
that Chinese officials had broken down his
door and taken all of his belongings while
he was away. He also testified that his
wife told him that since he has been here
in the United States in 1993, the
government has taken all of his
belongings. Although he testified to two
insta n c e s w h e n t h e g o v e rn m e n t
confiscated his belongings, both his
asylum application and sworn statement
discuss only one such incident.7
It was also evident that the IJ
disbelieved Xie’s testimony that he left his
wife and children in China and is afraid to
return home because he would be required
to pay the balance of the fine of about
$1,000. Xie had been working in the
United States for a number of years, and
sent $300 a month back to China for the
support of his family. App. at 21. He told
his attorney that he has enough money to
pay for a trip back to China. The IJ stated
that Xie “could have paid this fine while
working and living here in the United
States. He opted not to do so.” App. at
21. It was the IJ’s opinion that Xie “is not
paying the fine as a excuse for not
returning to his country.” App. at 21.
Xie’s sole explanation for the
inconsistencies is to attempt to lay the
responsibility on the travel agent who
filled out the asylum application. He
testified he had no idea what it was. A.R.
at 125. The IJ stated:
the Court will not buy into
an individual trying to put
blame on either an attorney
or a travel agency or anyone
else in the completion of the
I-589 as a scapegoat to
avoid being found incredible
because of contradictions
and a conflict between the
testimony given and the
d o c u m e n t a r y e v i d en c e
presented. On redirect
examination the respondent
again stated for the record
that he does not know what
is contained in his affidavit.
App. at 19. The IJ viewed this explanation
as suspect.
In this connection, we note that Xie
had a responsible position in China. He
was second in command at a factory that
manufactured religious incense papers
with six or seven employees under him.
The IJ stated that he did not believe Xie
7 Xie’s supplemental statement
explicitly discusses the 1979 incident;
the reference in his asylum application is
not dated but it also appears to reference
the 1979 incident.

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9
would “just allow[ ] any travel agent to put
anything down on [his] application.” A.R.
at 141. The differences in Xie’s accounts
of his detention are too specific and too
dissimilar to be attributed to the
incompetency of the preparer. The
strength of these omissions is sufficiently
substantial to sustain the BIA’s adverse
credibility finding. The BIA’s assessment
of Xie’s credibility on the various
inconsistencies that it had noted was just
as damning, as the BIA stated “[w]e find
the respondent’s explanations of his
inconsistencies to be unconvincing.” App.
at 6 (citing Matter of A-S, 21 I. & N. Dec.
1106, 1109 (BIA 1998)). Xie argues, “It is
unclear why the B oard and th e
Immigration Judge assume that Petitioner
controlled the content of his original
application. It is apparent that while some
information is correct, other information is
wrong.”8 Petitioner’s Br. at 12. That is
not a convincing response to the numerous
inconsistencies that the BIA and the IJ
noted.
In a number of opinions this court
has declined to give much significance to
discrepancies in statements made when the
applicant has arrived at the point of entry.
See, e.g., Balasubramanrim, 143 F.3d at
162-63 (“[T]he hand written record of the
airport interview . . . may not be reliable .
. . . [T]he airport statement is not an
application for asylum. The questions
posed were not designed to elicit the
details of an asylum claim, and it appears
the airport examiner . . . had no interest in
developing the details of a potential
asylum claim.”); Senathirajah v. INS, 157
F.3d at 218 (holding “the immigration
judge and the BIA gave far too much
weight to the affidavit taken during
Senathirajah’s airport interview”). Those
cases differ from this case. Xie arrived
legally on an official visa on May 27,
1993. He did not complete his asylum
application until almost a month later.
Further, he was not questioned by
potentially intimidating immigration
officials, but by an agent of a travel
agency. There was no reason for him to
have been beset by the fear and confusion
that immigrants may experience during an
airport interview.
We have also noted that
“immaterial discrepancies between airport
interviews and subsequent testimony
should not be used to make adverse
credibility determinations.” Mulanga v.
Ashcroft, 349 F.3d 123, 137 (3d Cir.
2003). However, as explained throughout
8 The Petitioner also argues that the
IJ and BIA reliance on the asylum
application when prepared by an
unauthorized representative (a travel
agent) is a violation of due process.
Petitioner brings this argument for the
first time on appeal, and therefore there
is no record to review on this issue.
Section 1252(d)(1) of Title 8 provides
that a court of appeals may review final
orders only if the alien has exhausted all
available remedies, and because this
court has described statutory exhaustion
requirements as being jurisdictional,
Massieu v. Reno, 91 F.3d 416, 422 (3d
Cir. 1996), we are without jurisdiction to
decide this issue.

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10
this opinion, the discrepancies in the
instant case go to the heart of the claim.
The IJ concluded that based on his
adverse credibility determination, Xie has
not established a well-founded fear of
persecution if his application for asylum
were denied and he was returned to China.
Again, based on his view that Xie was not
honest, forthright, and credible, the IJ
concluded that Xie was not a person of
good moral character, and denied
voluntary departure. In its decision
dismissing the appeal, the BIA did not
consider the voluntary departure issue, but
inasmuch as it found that the IJ’s findings
of adverse credibility were supported by
the record, there was no need for it to do
so.
IV.
This court has held on more than
one occasion that we must sustain the
BIA’s adverse credibility determination if
there is substantial evidence in the record
to support it. See, e.g., Gao, 299 F.3d at
272. We discussed the substantial
evidence test in a recent en banc decision
where we stated, “We look at an adverse
credibility determination to ensure that it
was appropriately based on inconsistent
statements, contradictory evidences, and
inherently improbable testimony . . . in
view of the background evidence on
country conditions.” Dia v. Ashcroft, 353
F.3d 228, 249 (3d Cir. 2003) (en banc)
(internal quotations and citations omitted).
After consideration of the record,
we conclude that the BIA, and before it the
IJ, provided the required “specific, cogent
reasons” for the adverse credibility
finding.9 Senathirajah, 157 F.3d at 216.
Nothing in the record compels a
contrary conclusion, and accordingly, we
will deny the petition for review.
9 The IJ also based his adverse
credibility finding on Xie’s demeanor.
We are aware of the skepticism of one of
our colleagues on the weight accorded to
demeanor, i.e. the “squirm” test, which
he expressed in his separate opinion in
Dia, 353 F.3d at 273-80 & n.8 (McKee,
J., concurring in part and dissenting in
part). In this case, the IJ explained the
basis for his opinion, i.e. that Xie kept
his hands “firmly placed in his lap” while
testifying to rather easy questions but put
his hands in front of his face when asked
questions that were difficult to answer.
App. at 19. The BIA opinion did not
refer to Xie’s demeanor and we therefore
do not rely on this aspect of the IJ’s
opinion.

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