                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2316




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                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 06-2316


                  YAN QING CHEN,

                        Petitioner

                            v.

   ATTORNEY GENERAL OF THE UNITED STATES,

                       Respondent



            Petition for Review of an Order of
            the Board of Immigration Appeals
                     No. A79-316-322
           Immigration Judge: Rosalind Malloy


        Submitted under Third Circuit LAR 34.1(a)

                      May 11, 2007

Before: RENDELL, JORDAN and ALDISERT, Circuit Judges.

                  (Filed: June 12, 2007)




               _______________________

               OPINION OF THE COURT
               _______________________
ALDISERT, Circuit Judge.

       On March 13, 2001, Yan Qing Chen, a native and citizen of the People’s Republic

of China, filed an application for asylum, withholding of removal, and protection under

the Convention Against Torture. Chen maintained that Chinese government officials

dragged her from her home, drugged her, and forced her to undergo an abortion. After a

short hearing, the Immigration Judge (“IJ”) denied Chen’s application and concluded that

her claim was frivolous pursuant to 8 U.S.C. § 1158(d)(6). The Board of Immigration

Appeals (“BIA”) summarily affirmed. Chen now petitions for review of the Board’s

decision. For the following reasons, we will deny the Petition on all grounds.

                                             I.

       The parties are familiar with the facts and proceedings before the BIA and the IJ,

so we will only briefly revisit them here. Chen, a 32-year-old Chinese national, illegally

entered the United States in the spring of 2000. Upon arriving in this country, Chen met

and married another Chinese citizen, Zi Hui Tang. On May 23, 2001, she gave birth to

the couple’s baby daughter at Nesbitt Memorial Hospital in Kingston, Pennsylvania.

Additionally in May, she filed an application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).

       At a hearing in front of an immigration judge, Chen testified that she became

pregnant in China at the age of 19. She also alleged that the Chinese government forced

her to undergo an abortion and that she would face persecution if she ever returned to

China on account of her desire to have more children. In support of her application, Chen

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submitted an “abortion certificate,” which purports to show that she had an abortion in

China. Chen stated that she obtained the abortion certificate to prove to her parents that

she had undergone an abortion procedure.

       Strangely, Chen also presented medical records from her pregnancy in the United

States that contradicted her testimony. A 2001 patient history form, completed by Chen’s

doctor, and using Chen’s husband as a translator, indicates that Chen’s pregnancy in

China ended with a “miscarriage [at] 2 mos,” not a forced abortion. App. 222. A

checkbox on the same form also suggests that Chen had previously suffered a

miscarriage. Id. The operative report from Chen’s Cesarean section further contradicted

her account of events. That form indicated Chen had never been pregnant before coming

to the United States. When questioned about the discrepancy between her testimony and

her medical records, Chen insisted she was telling the truth. She hypothesized that her

husband mistranslated some of the complicated medical terminology.

       At the conclusion of the hearing, the IJ rendered an oral decision denying the

application for asylum, withholding of removal, and protection under CAT. Judge

Malloy found Chen’s testimony “incredible” and “fabricated.” The IJ questioned the

veracity of Chen’s testimony surrounding the abortion certificate and her attempt to

explain the information contained in the American medical records. The IJ also deemed

the application frivolous under 8 U.S.C. § 1158(d)(6).

       Chen appealed to the BIA, where she made two arguments: first, that she had not

presented a frivolous application and, second, that the IJ erred in determining she was not

                                             3
eligible for asylum. On March 22, 2006, the Board summarily affirmed the IJ’s decision.

Chen then filed this timely Petition for Review. We have jurisdiction to hear the Petition

under 8 U.S.C. § 1252.

                                             II.

       We begin our analysis with a brief discussion of the appropriate scope and

standard of review. Where, as here, the BIA merely adopts the decision of the IJ, this

Court reviews the IJ’s opinion. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir.

2001). On questions of fact, including credibility assessments, we limit our review to

determining whether the IJ’s findings are supported by substantial evidence. Tarrawally

v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). We may decline to uphold the IJ’s

decisions only where the evidence compels a contrary conclusion. 8 U.S.C. §

1252(b)(4)(B).

                                            III.

       At the heart of the Petition for Review, Chen argues that the IJ denied her request

for asylum on the basis of an erroneous credibility determination. Under the precedent of

this Court, aliens applying for asylum must provide credible testimony and evidence in

support of their applications for asylum. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002). Here, the IJ concluded that the Chen’s medical records and the “abortion

certificate” directly undermined her credibility.

       In response, Chen first contends that the IJ’s findings were not supported by

substantial evidence. She argues that the IJ placed undue weight on her American

                                              4
medical records—records that contradict themselves. The typed post-operative report

from the surgeon who performed Chen’s Cesarean section states that Chen had never

been pregnant before coming to the United States. Her handwritten patient history form,

which was completed using information that she provided to her doctor, via her husband’s

translation, tells a different tale. It states that Chen became pregnant in China and that her

pregnancy ended in miscarriage, not an induced abortion. The reliability of this

information is bolstered by a notation made in not one, but two, places. The first

indication is a checkbox on the patient history form, and the second is a handwritten entry

further down the page under the heading “past pregnancies.” Although we acknowledge

that the medical records are not a model of consistency, we do not accept Chen’s

argument that the IJ’s decision is not supported by substantial evidence. The central point

is this: every piece of evidence in these records contradicts Chen story that she suffered

an intentionally induced abortion.

       Chen suggests that the inconsistencies are attributable to her husband’s poor

command of English rather than deception. Unfortunately, there is little evidence to

support Chen’s contention; neither her doctor nor her husband testified at trial. We also

note that Chen’s husband successfully translated myriad other, equally technical, medical

terms. Accordingly, we cannot say that a reasonable adjudicator would be compelled to

find Chen’s testimony credible.

       Chen also argues that the IJ erred by basing the credibility determination on

impermissible speculation. As noted above, the IJ did not believe Chen’s explanation of

                                              5
how she acquired the “abortion certificate.” During the trial, Chen stated that she asked

for the certificate immediately after her abortion. She elaborated, “I wanted to present

that to my parents . . . . [b]ecause I was very young at the time and I need [sic] to talk to

my parents and ask them what would happen after the abortion.” App. 112–113. The

judge found Chen’s account of events “totally incredible.” App. 14. We think the IJ’s

skepticism is understandable and does not amount to impermissible speculation. First,

Chen offered no testimony to explain why her parents would need or want hospital

records to confirm her abortion. Second, the Department of State’s 1998 Country

Conditions Report for China casts additional doubts on the unauthenticated certificate.

The report states, “Documentation from China, particularly from the Fuzhou . . . area

[Chen’s hometown], . . . is subject to widespread fabrication and fraud. This includes

documents that purportedly verify . . . births and birth control measures. . . . The existence

of this fraud has been established by direct investigation by U.S. officers . . . .” App. 437.

In sum, the IJ’s adverse credibility determination has a reasonable basis in the record and

was supported by substantial evidence.

                                              IV.

       Chen further argues that substantial evidence does not support the IJ’s finding that

she failed to establish a fear of future persecution. She contends that the Chinese

government will subject her to another abortion if she returns to China and becomes

pregnant. This argument is utterly devoid of merit. In her testimony in front of the IJ,

Chen admitted that, because she gave birth to a daughter, she could have another child in

                                               6
China without fear of persecution.

                                              V.

       The more difficult issue we face is whether it was appropriate for the IJ to find

Chen’s asylum application “frivolous” pursuant to 8 U.S.C. § 1158(d)(6). At the outset,

we note that “severe consequences” attach to a finding of frivolousness. Muhanna v.

Gonzales, 399 F.3d 582, 588 (3d Cir. 2005). Section 1158(d)(6) provides: “If the

Attorney General determines that an alien has knowingly made a frivolous application for

asylum and the alien has received notice under paragraph (4)(A), the alien shall be

permanently ineligible for any benefits under this chapter . . . .” 8 U.S.C. § 1158(d)(6).

       An applicant is subject to the provisions of § 1158(d)(6) only if the IJ’s final order

specifically finds: (1) some material aspect of the alien’s claim is false; (2) the alien

knew, at the time of filing, that this material aspect of her claim was untrue; and (3) the

alien, after a sufficient opportunity to do so, failed to satisfy the IJ that any discrepancies

or implausibilities were not the result of deliberate fabrication. See 8 C.F.R. § 208.20.

We also note that under the terms of this regulation a finding of frivolousness does not

flow automatically from an adverse credibility determination. Muhanna, 399 F.3d at 589.

Although an IJ may examine the same evidence as a basis for both adverse credibility and

frivolousness rulings, the IJ must make separate and distinct determinations.

       In this case, the IJ’s determination of frivolousness consists of the following

statements:

              The Court finds the respondent’s testimony to be totally incredible and to be

                                               7
              fabricated based on the records from the hospital in the United States. . . .
              Certainly the typewritten report indicates that the pregnancy in the United
              States was her first pregnancy. Based on the evidence submitted, the Court
              finds the respondent’s testimony to be incredible and fabricated. The
              respondent was warned of the consequences of filing a frivolous application
              for asylum in the United States. She was warned in July of 2002 and she
              was again warned today during cross examination. The respondent chose to
              ignore the warnings and continue with the fabricated testimony. The Court
              can only find that her testimony was fabricated and she presented a
              frivolous application for asylum in the United States.

App. 14. Such findings satisfy the mandate of 8 C.F.R. § 208.20. As noted above, the

basis of Chen’s asylum claim is that Chinese officials dragged her from her home and

subjected her to a forced abortion. Unfortunately for Chen, the IJ found that the

American medical records she submitted at the hearing directly contradicted her

testimony. On this basis, the IJ determined that Chen fabricated her story. Chen was

given ample opportunity to modify her testimony or to present evidence explaining the

contradictions, but chose not to do so. In light of the obvious and unexplained

contradiction at the heart of the case, we conclude that substantial evidence supports the

IJ’s finding that Chen fabricated a material element of her application. Accordingly, we

will deny the Petition with regard to the frivolousness determination.

                                           VI.

       Chen petitions this Court to review a slew of other issues, including her claim for

protection under CAT, her application for withholding of removal, whether the IJ ignored

the possibility she would suffer imprisonment in China, and whether the IJ violated her

rights under the Due Process Clause. The government argues that we do not have


                                             8
jurisdiction to hear Petitioner’s contentions because she did not raise them before the

BIA. We agree.

       As a general rule, an alien must exhaust all of her administrative remedies before

raising a claim before this Court. 8 U.S.C. § 1252(d)(1); Bonhometre v. Gonzales, 414

F.3d 442, 447 (3d Cir. 2005); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005).

To exhaust a claim, an alien must first raise the issue before the BIA, Alleyne v. INS, 879

F.2d 1177, 1182 (3d Cir. 1989), so as to give the Board “the opportunity to resolve a

controversy or correct its own errors before judicial intervention.” Zara v. Ashcroft, 383

F.3d 927, 931 (9th Cir. 2004). A petitioner is deemed to have exhausted his

administrative remedies “so long as an immigration petitioner makes some effort,

however insufficient, to place the [BIA] on notice of a straightforward issue being raised

on appeal.” Yan Lan Wu, 393 F.3d at 422. After a thorough search of the record, we find

no evidence that Chen presented the BIA with any argument on the above-mentioned

issues. Accordingly, this Court lacks jurisdiction to consider Chen’s arguments.

                                        ******

       We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary. Accordingly, the Petition for Review will be denied.




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