Yan Ping Lu v. Gonzales

Citation: 215 F. App'x 59Docket: No. 05-5227-ag

Court: Court of Appeals for the Second Circuit; January 29, 2007; Federal Appellate Court

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Yan Ping Lu seeks judicial review of the BIA's September 2005 order, which upheld Immigration Judge George T. Chew's denial of her asylum application, withholding of removal, and relief under the Convention Against Torture. The BIA's affirmation without opinion necessitates direct review of the IJ's decision as the final agency determination. The court applies a substantial evidence standard to factual findings, including credibility issues, which are treated as conclusive unless a reasonable adjudicator would reach a different conclusion. An adverse credibility determination must be supported by specific and cogent reasons linked to the finding.

The BIA has established that submitting false documents in support of an asylum claim raises serious doubts about the claimant's credibility. Lu filed two asylum applications, both deemed "totally fabricated" by the IJ. While Lu acknowledges that her first application was fraudulent, she contends that her subsequent application should not be assessed based on the first one, arguing that the IJ's adverse credibility finding lacked specific support for her second claim of persecution. However, the BIA's conclusion that a false asylum application severely undermines overall credibility was upheld by the court, which agreed that the IJ properly considered the falsity of Lu's initial filing in evaluating her credibility.

Additionally, the IJ found Lu complicit in creating fraudulent documentation, which justified holding her accountable for this misconduct, despite the disbarment of her attorney linked to the original filing. The court noted that Lu continued to rely on false documents even when presenting her second application, as evidenced by her claim of proof regarding her son's birth that was based on previously admitted false documentation.

The Immigration Judge (IJ) was justified in discrediting Lu’s claims in her second application for relief. A key aspect of Lu’s testimony—that her father-in-law, a family planning official, forced her to work hard in public during her pregnancy to induce a miscarriage—was deemed inherently implausible, as this action would contradict his intention to conceal her unlawful pregnancy. Although the IJ mistakenly found it implausible that her father-in-law could force her to have a termination, there was no evidence he had the authority to do so, nor was it reasonable to assume he would take such extreme measures against a family member to protect his reputation.

Furthermore, the IJ's decision to disregard a psychologist's report submitted on the hearing day was problematic. The IJ questioned the report's credibility due to its late submission and similarities to Lu’s asylum application, despite the psychologist’s qualifications and the presumption against dishonesty under penalty of perjury. While the IJ had discretion in evaluating the report, dismissing it solely for these reasons was an error. 

Despite these errors, the prior fraudulent application and Lu’s admission of its falsity significantly undermined her credibility. The substantial doubts regarding her credibility led to the conclusion that the IJ would likely arrive at the same decision even without the noted errors. Consequently, the IJ's denial of asylum was upheld, as Lu's credibility issues precluded her from succeeding in her claim for withholding of removal. Additionally, Lu did not contest the IJ’s denial of relief under the Convention Against Torture (CAT), leading to that claim being waived. The petition for review was thus denied, and the motion for a stay of removal was rendered moot.