Shiqi Xue v. Attorney General of the United States

IMG-222 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2901
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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)
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OPINION
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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

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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.)

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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

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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.

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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

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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 I-
589 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

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For example, we agree that Xue’s testimony that he went to his mother-in-law’s1
house on December 29th, not December 28th, was eventually clarified on cross-
examination. 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.)
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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 find1
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.

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