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


4-3-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4075




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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 05-4075
                                      ___________


                                      WU CHEN,

                                                      Petitioner,

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                      Respondent.

                             ________________________

                           On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                 (BIA No. A 78 232 766)

                           Immigration Judge: Annie S. Garcy

                                      ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                November 27, 2006

   BEFORE: FUENTES and GARTH, Circuit Judges, and POLLAK, District Judge.*

                                  (Filed: April 3, 2007)



      *
         The Honorable Louis H. Pollak, Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.

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                                      ___________

                               OPINION OF THE COURT
                                    ____________

FUENTES, Circuit Judge.

       Petitioner challenges the Board of Immigration Appeals’ denial of his application

for asylum, withholding of removal, and relief under the United Nations Convention

Against Torture. For the reasons that follow, we will deny the petition.

                                             I.

       Petitioner Wu Chen applied for asylum, withholding of removal, and relief under

the Convention Against Torture in September 2000, seven months after entering the

United States without permission. After a hearing on April 25, 2001, an Immigration

Judge (“IJ”) sitting in New York, determined that petitioner was not credible and denied

him relief. In July 2003, the BIA remanded the matter to the IJ based on recent Second

Circuit cases concerning testimony and credibility findings. A motion for change of

venue was later granted, and an IJ sitting in Newark, New Jersey, then denied petitioner’s

application for relief in December 2003 after a hearing.

       In his application and testimony, petitioner described the following events.

Petitioner was born in 1967 and married his wife in 1989. They have two children, a

daughter born in September 1990 and a son born in December 1997. Three months after

his daughter was born, Chinese officials forced his wife to have a intrauterine device

(“IUD”) inserted into her body. The IUD caused her uterus to bleed but officials did not

                                             2
permit her to remove it. Late in 1991, petitioner and his wife hired a private doctor to

remove the IUD.

       Soon thereafter, petitioner’s wife became pregnant. In February 1992, family

planning officials, after discovering the pregnancy during an IUD checkup, forced her to

have an abortion and imposed a fine on the couple. In May 1992, a second IUD was

inserted. In 1994, petitioner’s request to have another child was denied. In February

1997, the couple hired a private doctor to remove the IUD, and petitioner’s wife soon

became pregnant. She hid at her uncle’s home in another village during the pregnancy,

and returned to give birth in December 1997 according to a local tradition that mandated

that she give birth in her home. Someone reported the birth to the authorities and, in

February 1998, officials came to the house and took petitioner’s wife away for

sterilization. When petitioner went to the family planning office to complain, officials

threatened him. In February 2000, petitioner received a notice demanding that he pay a

fine. Instead, he left the country later that month.

       The IJ determined that petitioner was not credible for a number of reasons. First,

petitioner submitted a letter from his wife that the IJ found to be “strikingly similar” to an

addendum Wu Chen attached to his asylum application. In addition, neither the

petitioner’s statement nor his wife’s letter described the abortion and sterilization

procedures with any detail. Second, the IJ did not credit the abortion and sterilization

certificates that petitioner presented. Third, the IJ determined that under Chinese policy,

the couple’s second child would have been permitted—subject to a fine for failing to

                                              3
space the birth of the children properly—because rural households are allowed a second

child if the first one is a girl. Finally, the IJ found the forced abortion claim to be

“absurd” because it made no sense for the wife to report for an IUD checkup after having

her IUD removed. The BIA affirmed after explaining that petitioner had done “very little

on appeal” to contest the IJ’s adverse credibility findings.

       The BIA had jurisdiction to review the IJ’s order under 8 C.F.R. § 1003.1(b)(3).

We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252.

                                              II.

       On appeal, petitioner challenges the adverse credibility findings of the IJ, and the

BIA’s agreement with those findings. “Adverse credibility determinations are reviewed

under the substantial evidence standard.” Sukwanputra v. Gonzales, 434 F.3d 627, 636

(3d Cir. 2006). We will uphold an adverse credibility determination unless “any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B); Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Petitioner provided a

letter written by his wife that the IJ noted was “strikingly similar” to a written statement

that petitioner signed and attached to his application. Petitioner asserts that the IJ

improperly penalized him for “too much consistency” between the couple’s description of

events. This argument, however, mischaracterizes the analysis of the IJ, who was not

concerned that the documents described the same events. Instead, the IJ questioned the

documents’ use of similar paragraph structures and identical phrases and sentences.

When the IJ provided petitioner an opportunity at the hearing to explain the similarities,

                                               4
he failed to do so:

       Q: Did you ask [your wife] to write you this letter?

       A: The attorney request[ed] that I ask my wife to write this about what happened
          to her, for the Judge.

       Q. Did he tell her what to say?

       A: No, he didn’t tell her, she wrote out whatever happened to her.

       Q: Okay. Did she have a sample to go by?

       A: She knew what happened to her . . . with the . . . IUD insertion and
          sterilization.

       Q: Okay, did you read this letter?

       A: Yes, after she [had] written it.

       Q: Do you think this is in your wife’s own words?

       A: Yes.

The government attorney also asked petitioner about his wife’s letter:

       Q: . . . Did you tell her what your statement said, so she could write her letter?

       A: No, she wrote that herself. Her story is similar, she talk[s] about her
          experiences.

AR 26-27. The IJ, not surprisingly, did not find petitioner’s answers plausible. The

similarities between the two documents suggested that petitioner’s wife did not

independently write her letter “in her own words.” Yet, petitioner failed to acknowledge

any coordination or explain why the documents were similar.

       Petitioner also challenges the IJ’s findings with regard to the IUD checkup and


                                             5
subsequent forced abortion, family planning polices in China, and supporting

documentation. While there may be some plausible explanation for petitioner’s wife

attending an IUD checkup after removing the device, we do not believe it was

unreasonable for the IJ to question why she would do so. Further, the IJ provided specific

reasons why she did not credit the supporting medical documentation, including

petitioner’s failure to explain why the documents were issued. Finally, while the IJ could

have noted that the State Department report indicates that implementation of family

planning policies at the village level is inconsistent, this does not render her credibility

findings erroneous. We conclude that the IJ’s adverse credibility finding was reasonable

and that, as a result, the denial of petitioner’s claim for asylum is supported by substantial

evidence.

                                             III.

       For the same reasons that petitioner’s asylum claim fails, we conclude that he is

not entitled to withholding of removal, which requires the applicant to demonstrate a

“clear probability” of persecution if removed. See INS v. Stevic, 467 U.S. 407, 413

(1984). Petitioner has also failed to present evidence entitling him to protection under the

Convention Against Torture; i.e., he has not shown that it is more likely than not that he

will be tortured if removed. See Obale v. Attorney Gen. of the United States, 453 F.3d

151, 161 (3d Cir. 2006).

                                              IV.

       Petitioner has failed to demonstrate that the BIA or IJ erred in rejecting his

                                               6
application for asylum, withholding of removal, and relief under the Convention Against

Torture. For the reasons discussed above, we will deny the petition.




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