                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-2009

Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3022




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IMG-002                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3022
                                      ___________

                                    XUE MEI CHEN
                                                             Petitioner

                                            v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A97-331-546)
                     Immigration Judge: Honorable Alberto Riefkohl
                     _______________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                DECEMBER 1, 2008

              Before: MCKEE, NYGAARD, AND ROTH, Circuit Judges


                            (Opinion Filed: January 12, 2009)
                                       _________

                                         OPINION
                                        _________

PER CURIAM

       Xue Mei Chen petitions for review of the Board of Immigration Appeals’ (“BIA”)

final order of removal. For the following reasons, we will grant her petition.
                                              I.

       Chen, a native and citizen of China, arrived in this country without valid

documents in September 2004. She claimed during airport and credible fear interviews

and in an asylum application that she fled China because a local official’s son raped and

impregnated her and she was forced to have an abortion. After retaining new counsel,

however, she claimed in an amended application that she fled China because she feared

persecution for her practice of Falun Gong. She concedes removability, but seeks asylum,

withholding of removal and relief under the Convention Against Torture on that basis.

       Before the Immigration Judge (“IJ”), Chen disavowed her initial claim and

testified that she had made it on the advice of the “snakehead” who smuggled her out of

China and told her that she would be sent back if she disclosed her practice of Falun

Gong. She also testified about her experience with Falun Gong and Chinese authorities.

According to Chen, she and her younger brother started to practice Falun Gong in 1998.

In 1999, after Falun Gong was outlawed, Chinese authorities arrested them, detained

them for eight or nine hours, kicked her in the legs and forced them to sign a statement

disavowing Falun Gong and promising not to practice it. She stopped practicing but,

several years later, a friend convinced her to hand out Falun Gong pamphlets. Someone

told the authorities, who came to her house, searched her room and discovered the Falun

Gong pamphlets. They arrested her and again detained her for eight or nine hours,

slapping her five or six times and hitting her “around the hip area,” finally letting her go



                                              2
after she promised to tell them who had given her the pamphlets. Instead of going home,

she went to stay with an aunt. Authorities started “harassing” her parents after they found

out that she had “escaped,” so her aunt arranged for her passage to the United States. In

addition to this testimony, Chen submitted an affidavit from her mother and the 2004

country report detailing the persecution of Falun Gong practitioners in China.

       The IJ, without making a credibility determination, denied relief after concluding

that Chen had failed to prove that she actually practiced Falun Gong in China.1 The BIA

affirmed without opinion.2

                                              II.

       Aliens are eligible for asylum if they show a well-founded fear of persecution, see

Chukwu, 484 F.3d at 188, and are entitled to withholding of removal or relief under CAT

if they show that persecution or torture is more likely than not, see Jarbough v. Att’y



  1
    The IJ initially noted that “[Chen’s] case is obviously effected [sic] by the prior
statements and suffers from a basic lack of credibility as to the Court can accept the
excuse for the first false statements in consideration for the basis for relief.” (IJ Decision
at 9, A.45.) Whatever that statement might mean, the IJ ultimately concluded that he
“tend[ed] to believe” Chen’s explanation, (id. at 10, A.46), and, as the Government
concedes, never made an adverse credibility determination.
  2
   We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. §
1252(a)(1). Because the BIA affirmed the IJ’s order without opinion, we review the
decision of the IJ. See Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006). We review
the IJ’s factual finding for substantial evidence and must uphold them ‘“unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” Chukwu v.
Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Nevertheless, The IJ’s conclusions “must be based on the record, not on conjecture or
unsupported suppositions about conditions in the applicant’s country.” Id.

                                              3
Gen., 483 F.3d 184, 190-91 (3d Cir. 2007). A showing of past persecution gives the alien

a rebuttable presumption of future persecution. See id. Although the IJ did not discuss

Chen’s claims precisely in these terms, we construe his decision as concluding that Chen

had failed to show either past persecution or a well-founded fear or likelihood of future

persecution. We agree with the first conclusion.3 The second, however, is not supported

by substantial evidence.

       The IJ properly acknowledged that the practice of Falun Gong can provide a basis

for immigration relief. He also did not make an adverse credibility finding, so “we will

proceed as if the applicant’s testimony were credible.” Toure, 443 F.3d at 326.4 We also

note that credible testimony alone may be sufficient to carry an applicant’s burden of

proof. See Jishiashvili v. Att’y Gen., 402 F.3d 386, 392 (3d Cir. 2005). The IJ

nevertheless denied relief on the sole basis that that Chen had not proven that she

practiced Falun Gong in China. The IJ based that ruling on three primary conclusions,

each of which is problematic.

       First, the IJ stated that Chen “has not provided the Court with any type of

corroborating information” regarding her practice of Falun Gong or mistreatment by



  3
   The IJ concluded that “nothing major was done” to Chen. (IJ Decision at 9, A.45.)
We agree, as the Government argues, that Chen’s mistreatment did not rise to the level of
persecution. See, e.g., Jarbough, 483 F.3d at 191.
  4
   The REAL ID Act of 2005 codified this principle at 8 U.S.C. § 1158(b)(1)(B)(iii), but
Chen filed her asylum application before May 11, 2005, so the statutory provision does
not apply to her. See Toure, 443 F.3d at 326 n.9.

                                             4
authorities (IJ Decision at 9, A.45), and later referred again to “the lack of any kind of

corroboration,” (id. at 11, A.47). As Chen argues, however, she provided a corroborating

affidavit from her mother, which the IJ did not discuss. (A.248-249.)5 See Toure, 443

F.3d at 323 (noting that the BIA recognizes “letters from family members” as forms of

corroboration). Moreover, as Chen also argues, the IJ did not follow the three-step

procedure required before denying a claim for lack of corroboration. See Chukwu, 484

F.3d at 191-92 (“[T]he failure to produce corroborating information may undermine an

applicant’s case where (1) the IJ identifies facts for which it is reasonable to expect

corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to

adequately explain that failure.”). In particular, although the IJ mentioned that “[t]here’s

no record of any of the actions taken against her,” he did not explain what he expected

Chen to produce or why it was reasonable to expect her to produce it, and did not decide

whether corroborating evidence was or was not available.6

       Second, the IJ found it “strange” that Chen’s parents suffered no direct

consequences as a result of her practice of Falun Gong. (IJ Decision at 9-10, A.45-46.)

Both Chen’s testimony and her mother’s affidavit, however, make it clear that her parents

  5
   The Government argues that this affidavit conflicts with Chen’s testimony in several
respects, but the IJ did not base his ruling on those alleged conflicts or otherwise evaluate
the affidavit. We may not do so in the first instance. See Chukwu, 484 F.3d at 189.
  6
   For this reason, the relevant inquiry is not, as the Government insists, whether a
reasonable trier of fact would be compelled to conclude that corroborating evidence is
unavailable. See 8 U.S.C. § 1252(b)(4). See also Toure, 443 F.3d at 325 (noting that the
REAL ID Act does not alter IJs obligation to apply the three-part framework).

                                               5
themselves never practiced Falun Gong. The IJ’s apparent assumption that the Chinese

government generally punishes parents for the crimes of their children does not have

record support.7

       Finally, the IJ noted that Chen had not made any connections with Falun Gong

practitioners in New York City, from which he concluded that she is not practicing Falun

Gong “freely” in the United States. (IJ Decision at 11, A.47.) He further believed that

this conclusion bolstered his conclusion that Chen had not actually practiced Falun Gong

in China. (Id.) Chen, however, testified that she practices Falun Gong several times a

week, both inside and outside her home. Once again, there is no record support for the

IJ’s assumption that this manner of private practice somehow is inconsistent with Chen




  7
    The IJ based this conclusion on his personal experience in “[h]aving dealt with the
Chinese government now, for almost a period of 30 years[.]” (IJ Decision at 10, A.46.)
The Government argues that such experience is a sufficient basis for this conclusion and
cites a concurring opinion for the proposition that “[w]here the IJ relies on his or her
expert knowledge of general country conditions to draw inferences of plausibility, it may
be that these inferences are worthy of deference.” Jishiashvili, 402 F.3d at 398 (Aldisert,
J., concurring). Judge Aldisert, however, made that statement merely by way of noting
that there “may be” exceptions to the general principle that reviewing courts are as
competent as IJs to assess plausibility. Id. His opinion certainly does not stand for the
proposition that an IJ’s conclusions need not be based on the record, which the majority
in Jishiashvili squarely reaffirmed they must. See id. at 393. See also Toure, 443 F.3d at
316 (“deference is expressly conditioned on support in the record”). The Government
also argues that this conclusion is supported by record evidence of “oppressive conduct”
by the Chinese government in general. The IJ himself, however, did not base his
conclusion on that evidence. Even if he had, general oppressiveness hardly supports the
specific assumption that the Chinese government punishes the non-practicing parents of
Falun Gong practitioners.

                                             6
having practiced Falun Gong in China.8

       Accordingly, we will grant the petition for review, vacate the BIA’s order of

removal, and remand for further proceedings. On remand, the BIA is directed to

reevaluate Chen’s claims in light of this opinion.




  8
    The Government argues that Chen’s failure to corroborate her practice of Falun Gong
in the United States was part of the basis of the IJ’s decision and cites testimony that it
claims made it reasonable for the IJ to expect such corroboration. The IJ, however, did
not fault Chen for failing to corroborate her practice of Falun Gong in the United States
or rely on any of the testimony that the Government cites. Instead, he concluded that
Chen’s manner of practice in the United States – i.e., privately, and without making
contact with other Falun Gong practitioners – is inconsistent with her having practiced in
China. As explained above, that conclusion lacks record support.

                                          7
