Xiu Qing Jiang v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1662
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XIU QING JIANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A098-740-719)
Immigration Judge: Honorable Frederic Leeds
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 20, 2012
Before: RENDELL, FISHER and CHAGARES, Circuit Judges.
(Filed: March 29, 2012 )
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Xiu Qing Jiang (“Jiang”) applied for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). An Immigration Judge (“IJ”)
denied her application, and the Board of Immigration Appeals (“BIA”) affirmed the IJ’s

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ruling. Jiang now petitions for review. For the reasons set forth below, we will deny her
petition.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
Jiang is a native and citizen of China who arrived in the United States in
December 2005 without valid entry documents. On December 16, 2005, the Department
of Homeland Security served her with a notice to appear, charging her with being
removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an immigrant who, at the time of her
application for admission, was not in possession of a valid entry document. On
January 31, 2006, Jiang applied for asylum.
According to her asylum application, Jiang married Dian Zhi Jiang (“Dian”) on
January 4, 2001, and gave birth to a son on September 14, 2002. Because the child was
male, pursuant to family planning policies, she was not allowed to have a second child.
Instead, she was forced to have an intrauterine device (“IUD”) inserted and required to
submit to regular gynecological checkups. In June 2003, Jiang learned that the IUD had
fallen out and that she was one month pregnant. Because she wanted to keep the child,
she hid at her uncle’s house. She asserts that family planning officials arrested Dian, who
was able to obtain his release only by promising to turn Jiang over to the officials.

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Family planning officials eventually located Jiang, and on October 16, 2003, arrested her
and forced her to undergo an abortion at Langqi Town Health Center in Fujian Province.
Later that month, the “village” ordered Jiang and Dian to pay a fine, and the family
planning officials notified them that one of them would have to be sterilized. Dian fled
China and in December 2003, entered the United States and applied for asylum.1
The IJ held a hearing on the merits of Jiang’s asylum claim on August 14, 2007.
Although Jiang’s testimony was generally consistent with the statements in her asylum
application, there were several discrepancies, which the IJ deemed relevant to her
credibility. Specifically, Jiang testified that on October 16, 2003, when family planning
officials took her to undergo a forced abortion, Dian was present at the house, and was
beaten and arrested. Not only did no such allegation appear in Jiang’s asylum
Jiang
subsequently advised the family planning officials that because Dian was no longer in
China, she and Dian could no longer violate the family planning policy. The officials
agreed not to sterilize her, but forced her to have another IUD inserted. Jiang alleged that
the IUD caused her to suffer excessive menstrual bleeding and that, despite this
complication, the family planning officials refused to remove the device. She fled to the
United States in December 2005.
1 An IJ denied Dian’s application for asylum, and on July 7, 2006, the BIA
dismissed his appeal. The U.S. Court of Appeals for the Second Circuit denied his
petition for review on September 27, 2007. Jiang v. Keisler, 248 F. App’x 254, 257 (2d
Cir. 2007).

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application, but it actually contradicted Dian’s statements indicating that he was not
present. Jiang also submitted several pieces of documentary evidence, including an
“abortion certificate,” a fine notice, and several affidavits. The IJ found that the
“abortion certificate” and the fine notice appeared to have been procured for the purpose
of the hearing and thus refused to accord them any weight. Accordingly, the IJ
determined that Jiang’s claim that she was forced to undergo an abortion was not
credible, and her remaining claims failed to demonstrate a well-founded fear of future
persecution if she returned to China.
Jiang appealed the IJ’s decision to the BIA. On February 12, 2009, the BIA
dismissed her appeal, reasoning that she had failed to sufficiently explain significant
discrepancies in the record and submit critical corroborative documentation. Jiang filed a
timely petition for review.
II.
The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3), and we have
jurisdiction under 8 U.S.C. § 1252(a). We review the BIA’s decision and look to the IJ’s
ruling only insofar as the BIA deferred to it. Huang v. Att’y Gen., 620 F.3d 372, 379 (3d
Cir. 2010). We review the BIA’s legal conclusions de novo. Id. We defer to the BIA’s
findings of fact that are supported by substantial evidence, including adverse credibility
determinations, and will reverse only “if no reasonable fact finder could make that
finding on the administrative record.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).

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III.
A grant of asylum allows an alien who is otherwise subject to removal to remain
in the United States if she qualifies as a “refugee.” Chukwu v. Att’y Gen., 484 F.3d 185,
188 (3d Cir. 2007). A refugee is an individual who is unable or unwilling to return to her
home country because of past persecution or a well-founded fear of future persecution
based on a protected ground. Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003)
(citing 8 U.S.C. § 1101(a)(42)(A)). To establish a well-founded fear of future
persecution, the applicant must show that there is a “reasonable possibility” that she
would suffer persecution if returned to her country. 8 C.F.R. § 1208.13(b)(2)(i)(B). “[A]
person who has been forced to abort a pregnancy . . . or who has been persecuted for . . .
resistance to a coercive population control program, shall be deemed to have been
persecuted on account of [a protected ground.]” 8 U.S.C. § 1101(a)(42). A showing of
past persecution creates a rebuttable presumption of future persecution on the same basis.
8 C.F.R. § 1208.13(b)(1).
If believed, Jiang’s testimony that she was forced to undergo an abortion would
likely entitle her to asylum. However, nothing in the record would “compel[]” a
reasonable adjudicator to conclude that Jiang was credible, and thus that her claim that
she underwent a forced abortion was true. See 8 U.S.C. § 1252(b)(4)(B) (emphasis
added). Significantly, Jiang provided conflicting accounts of what occurred on
October 16, 2003, the day that she was allegedly forced to have an abortion. Jiang

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testified that when the family planning officials found her at her uncle’s house, a
neighbor ran to notify Dian, who was at work, and Dian returned immediately. However,
in her asylum application, Jiang never mentioned that Dian was present, let alone that he
was beaten and arrested. Her testimony was also inconsistent with Dian’s asylum
application and his testimony at his asylum hearing that he was not present when the
family planning officials took Jiang for the abortion. The BIA noted an additional
discrepancy between the accounts of Dian and Jiang: Dian testified that Jiang went into
hiding after he left China, but Jiang denied doing so. Although Jiang attempted to
explain these discrepancies, the BIA found such explanations inadequate, and under the
“extraordinarily deferential” substantial evidence standard, we cannot say that the BIA’s
conclusion was erroneous. See Abdulrahman v. Ashcroft, 330 F.3d 587, 598 (3d Cir.
2003).
Moreover, we agree with the BIA that Jiang’s submission of suspect documentary
evidence provided further reason to doubt her claims. According to the U.S. Department
of State’s “Country Report” on China, the U.S. Embassy in China is unaware of the
practice of issuing abortion certificates. In fact, the Country Report states that “the only
document that might resemble and be confused with such a certificate is a document
issued by hospitals upon a patient’s request after a voluntary abortion.” The BIA’s
conclusion that the abortion certificate undermined Jiang’s claim that her abortion was
forced is “consistent with the common sense notion that government officials who force a

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woman to abort a child would hardly be likely to issue a certificate attesting to that fact.”
Chen v. Gonzales, 434 F.3d 212, 219 (3d Cir. 2005). Additionally, as the BIA found, the
way in which the fine document is worded makes it appear that it was specifically
prepared for use in an immigration proceeding.
Because there were valid reasons to doubt Jiang’s credibility, it was appropriate
for the IJ and the BIA to look for corroborating evidence. See 8 C.F.R. § 1208.16(b).
Jiang, however, failed to provide medical records relating to her pregnancy or the
insertion of an IUD. She also failed to provide an affidavit from the neighbor who
allegedly fetched Dian from his work site on October 16, 2003. In light of Jiang’s
credibility issues, the problematic documentary evidence, and her failure to provide
corroboration as to key aspects of her claim, we conclude that the BIA’s decision that
Jiang did not suffer past persecution was supported by substantial evidence.
We similarly find no error in the BIA’s conclusion that Jiang presented
insufficient evidence that she would be subject to persecution if she was forced to return
to China. Generalized statements that she would be subjected to “the torture of

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sterilization or other more extreme measures” are insufficient to establish a “reasonable
possibility” of future persecution. See 8 C.F.R. § 1208.13(b)(2)(i)(B).2
2 Because Jiang has failed to satisfy the lower burden of proof required for an
asylum claim, she has likewise failed to satisfy the “clear probability” standard required
for withholding of removal. Chukwu v. Att’y Gen., 484 F.3d 185, 188 (3d Cir. 2007).
She has also failed to demonstrate eligibility for protection under CAT because she has
not shown that it is more likely than not that she would be tortured upon return to China.
See 8 C.F.R. § 1208.16(c)(2).
IV.
For the foregoing reasons, we will deny Jiang’s petition for review.

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