Fo Chuan Mei v. JOHN ASHCROFT, Attorney General of the United States

* Hon. Dickinson R. Debevoise, United States District Judge for the District of New
Jersey, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4133
FO CHUAN MEI,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
APPEALS
(No. A71 519 179)
Submitted Under Third Circuit LAR 34.1(a)
JANUARY 22, 2004
Before: ALITO and CHERTOFF, Circuit Judges, and DEBEVOISE, District Judge*
(Opinion Filed: March 2, 2004)

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1 Though Alleyne involved 8 U.S.C. § 1105a, which subsequently was repealed, the
current statute governing jurisdiction over immigration appeals, 8 U.S.C. § 1252, uses
almost the identical language to describe exhaustion.
2
OPINION OF THE COURT
PER CURIAM:
I.
Mei Fo Chuan (“Mei”) challenges a final order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision finding Mei subject to
deportation. We conclude that Mei waived his argument on the question of the
translation at the first hearing and that substantial evidence supports the IJ’s decision. We
therefore deny Mei’s petition for review.
II.
A.
Mei’s first argument is that his right to due process was violated by the
Immigration Judge’s reliance on the transcript from his first trial. Mei argues that there
were translation difficulties in the first hearing and he was not provided a translator in a
language in which he was fluent.
We are barred from considering questions not raised on appeal to the BIA. See
Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989)1; see also, Florez-De Solis v. INS,

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3
796 F.2d 330, 335 (9th Cir. 1986). Also, though we generally are able to review
constitutional questions that a petitioner failed to raise before the BIA, where “a due
process claim not presented to the Board involves only a procedural error correctable
through the administrative process, we are unable to review it.” Alleyne, 879 F.2d at
1183 n.10.
Because Mei’s due process claim is based on an alleged procedural error of this
type, we are barred from considering that claim. See Malek v. INS, 198 F.3d 1016, 1021-
22 (7th Cir.) (declining to review the question whether petitioner’s wife should have been
granted an interpreter because he had failed to raise the argument before the BIA). Mei’s
notice of appeal to the BIA and his BIA brief show no mention of this argument
whatsoever. It was not even raised by implication. Therefore, we cannot address this
argument. In addition, even if we could address this argument, a close review of the first
hearing transcript shows that any translation difficulties were minor.
B.
The second argument made by Mei is that the IJ lacked substantial evidence upon
which to make an adverse credibility assessment. This argument is without merit.
The Administrative Record (“AR”) shows that Mei’s testimony and the evidence
he advanced were replete with inconsistencies. Only a few need be pointed to here. A
document presented to the IJ by Mei stated that his wife was sterilized in 1983. See AR
at 402. However, during his first hearing in 1993, Mei testified that his wife was

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sterilized in January 1981. AR at 497-98. In his second hearing on March 9, 2001, Mei
testified that she was sterilized on October 28, 1981. When on cross-examination he was
asked about the inconsistency between his 1993 testimony and his present testimony, he
stated that he could not recall the dates clearly at the time. Id. at 140. When asked why
his recollection would not have been clearer in 1993, Mei did not answer directly but,
instead stated, “It was because in ‘93, I went to Court, could not recall clearly and so lost
the case.” Id. at 141.
On Mei’s asylum application he stated that he was subjected to life punishment for
his violation of China’s one-child policy. Id. at 581. Mei’s application stated that if he
returned he would suffer from persecution for having a second child and that this
persecution would include having no job or employment assigned to him for his whole
life, being permanently ineligible for a “regular price food coupon,” and receiving no
social benefits for his whole life. Id. Yet when asked directly in 2001 whether he had
any problems with Chinese authorities after paying a fine for violating the one-child
policy, he stated that he had not. Id. at 124. This testimony was inconsistent with that
given in 1993, where Mei testified that he had paid no fine to the Chinese authorities and
that he had suffered consequences because of this failure to pay. Id. at 468.
In the first hearing Mei testified that he had been held in custody for at least ten
days and that his wife was sterilized in January 1980. Id. at 496. He then stated that the
date was actually January 1981 and that his wife was held for over one month. Id. at 497-

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98. Yet in the 2001 hearing, he gave no testimony about any imprisonment. Rather, his
testimony indicated that he paid the fine and that his wife was taken to the hospital for
several days and sterilized. See id. at 124-31.
Numerous other inconsistencies abound in the record. Taken together, these
inconsistencies amount to substantial evidence upon which the IJ could have determined
that Mei was not credible. Therefore, Mei’s argument concerning credibility must also
fail.
III.
We have reviewed all Mei’s arguments and see no grounds for granting his
petition. Therefore, his petition for review will be denied.

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