                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-25-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2199




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                                                                  NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                        No. 04-2199


                                    SONG OENG CHEN;
                                        * BETTY,
                                                 Petitioner

                      * (Dismissed    per Clerk’s Order of 2/22/05)

                                             v.

               ** ALBERTO     R. GONZALES, ATTORNEY GENERAL
                              OF THE UNITED STATES,
                                             Respondent

                  ** (Substituted   pursuant to Fed. R. App. Rule 43(c))


                           Petition for Review of the Order
                         of the Board of Immigration Appeals
                             (A95-147-378; A95-147-379)


                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 24, 2005

                    Before: SLOVITER, FISHER, Circuit Judges,
                        and THOMPSON, District Judge ***

                                (Filed October 25, 2005)




***   Hon. Anne E. Thompson, United States District Judge for the District of New
      Jersey, sitting by designation.
                                         OPINION


SLOVITER, Circuit Judge

       Petitioner Song Oeng Chen (“Chen”) seeks review of a final order issued by the

Board of Immigration Appeals (“BIA”) which affirmed, without opinion, the

determination of the Immigration Judge (“IJ”) denying petitioner’s application for

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under § 242(a)(1) of the Immigration and Nationality

Act, 8 U.S.C. § 1252(a)(1).

       Petitioner entered the United States as a non-immigrant visitor for pleasure with

authorization to remain for a temporary period not to exceed June 7, 2001. She remained

beyond that date without authorization from the Immigration and Naturalization Service

(“INS”). Petitioner conceded removability and applied for asylum, withholding of

removal, and protection under the CAT. She claims that she is entitled to asylum

because she has suffered past persecution and has a well-founded fear of future

persecution if she returns to Indonesia, her native country.

       To establish past persecution and entitlement to asylum, an applicant must show

(1) an incident (or incidents) that constituted persecution; (2) that occurred on account of

one of the statutorily protected grounds; and (3) that was or were committed by the

government or forces the government is either unable or unwilling to control. See

Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004). The applicant claims that she

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qualifies for asylum because she is a member of the ethnic Chinese minority and is part

of the Christian minority. Both ethnicity and religion are listed as statutory grounds to

support eligibility for asylum provided the applicant has shown that she suffered past

persecution and has a well-founded fear of future persecution if she is returned to her

native country.

         In this case, the IJ rejected petitioner’s claim because he found that petitioner

lacked credibility. He made that finding based on a series of discrepancies in petitioner’s

testimony as compared with her affidavit and supplemental affidavit.

         Although some of the discrepancies referred to by the IJ appear to be relatively

minor, when viewed in totality they were sufficient to warrant the adverse credibility

assessment. Petitioner bases her asylum claim on her allegation that she and her family

members were teased or insulted and told to go back to China. Petitioner must base her

claim on her own experiences, not that of her brother.

         Most of the events that petitioner relies on began when her brother was invited to

a party at the next door home of Mr. Hamid, a devout Muslim. Petitioner stated that

there were some government people there. In her affidavit, petitioner stated the

invitation was proffered by Endang, Mr. Hamid’s son. In her testimony petitioner

claimed that Endang was a girl, and Mr. Hamid’s daughter, a discrepancy that the IJ

noted.

         Petitioner testified that she had no contact with the Hamid family next door


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beyond just saying hello. In contrast, her supplemental affidavit states that the Hamids

gave food to her family at the end of the Ramadan season, and her family gave the

Hamids gifts at Christmas and Easter, another discrepancy noted by the IJ. In her direct

testimony, petitioner presented herself as passive when her brother was inside the Hamid

residence but on cross-examination she stated that she climbed a ladder to view what was

happening inside the Hamid residence, that she saw that her brother was tied up and that

he was slapped in the face with a gun. Originally her affidavit stated that she heard one

of the people inside the Hamid’s home say to her brother that his parents are dead and

that he should go back to China but on cross-examination she admitted she did not hear

this after all, all of which was noted by the IJ. Petitioner testified that she paid $500 to

the police within three hours after she made her first inquiry and that her brother was

immediately released; her supplementary affidavit states that her brother was not released

until the next day after the $500 was paid.

       Finally petitioner’s affidavit stated that when she went to the police to find her

brother the police ordered her to strip down until she was naked, a “fact” she mentioned

in her interview with the asylum officer. However, in her testimony she disavowed that

this had ever happened. Petitioner testified that her brother died on April 19, 1995

purportedly of the injuries suffered when he was beaten by the police. In her

supplementary affidavit stated that her brother died in March 1995. The IJ noted that

petitioner has not been able to explain the discrepancy. The IJ specifically stated that


                                              4
these discrepancies were significant.

       The Government notes that petitioner’s affidavit had been submitted within a

couple of weeks of the hearing. Perhaps most significant, petitioner’s supplemental

affidavit does not make any mention about the fact that her brother was taken to the

police, whereas on direct examination she testified that Mrs. Hamid told her that her

brother had been taken to the police, and that she thereafter paid the $500 ransom to the

police for her brother’s release.

       Whereas each of the discrepancies, taken alone, might not support an adverse

credibility determination, the testimony taken as a whole provides substantial evidence to

support the IJ’s adverse credibility determination. Because the Real ID Act, 8 U.S.C. §

1158(b)(1), which affects the standard of review of adverse credibility determinations,

did not become effective until May 11, 2005, after the time of petitioner’s testimony, we

review adverse credibility determinations under the substantial evidence standard. He

Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Under this highly deferential

standard of review, we will uphold the credibility determination of the IJ unless “any

reasonable adjudicator would be compelled to conclude to the contrary.” Id. at 222.

Thus, adverse credibility determinations by the IJ will be upheld to the extent that they

are “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003).

       The record contains no support for petitioner’s allegations that she suffered past


                                             5
persecution. She argues in her brief that she suffered “humiliation and disruption” to her

life and religious practices, but she offers no record support of any such contention. The

principal allegations with respect to governmental action involve not petitioner but her

brother, who was allegedly beaten by the police. The only allegations that concern

petitioner directly related to her being told to pay a $500 bribe to have her brother

released from prison. Petitioner does not allege that she was ever imprisoned or

threatened with imprisonment. Her showing does not amount to past persecution, a

burden that was hers to meet.

       We can accept petitioner’s argument that there are many equities which weigh in

favor of a positive exercise of discretion by this court because she has spent a significant

period of time in this country, she obeys the laws, and has been a person of good moral

character. Nonetheless, we are obliged to follow the statutory standard, and the IJ’s

determination that petitioner was not credible is supported by substantial evidence. We

will sustain the adverse credibility determination made by the IJ, and adopted by the BIA

in its affirmance without opinion.

       For the reasons set forth above, we will deny the petition for review.




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