                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3960




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3960


                                    QI ZHU SUN,
                                                          Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES


                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A98-291-918)
                    Immigration Judge: Honorable Eugene Pugliese


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                September 18, 2008

             Before: FUENTES, ALDISERT and GARTH, Circuit Judges

                         (Opinion filed: September 18, 2008)


                                      OPINION


PER CURIAM

      Qi Zhu Sun seeks review of a final order of removal. We will deny the petition for

review.

      Sun is a native and citizen of the People’s Republic of China. He entered the

                                           1
United States without inspection on May 27, 2004. The government issued a Notice to

Appear on that date, charging him with removability under INA § 212(a)(6)(A)(i), as an

alien present without having been admitted or paroled. Sun applied for asylum,

withholding of removal and protection under the Convention Against Torture (“CAT”).

Sun asserted that he had been and would be persecuted on the basis of his involvement

with an underground Christian church. The Immigration Judge (“IJ”) denied his claims

on the basis that Sun had not testified credibly. The Board of Immigration Appeals

(“BIA”) affirmed on the same basis, and Sun filed a timely petition for review.

       We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C.

§ 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]hen the BIA

both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we

have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376

F.3d 215, 222 (3d Cir. 2004). We review the BIA’s and IJ’s factual findings for

substantial evidence. Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007).

We will uphold an adverse credibility determination unless “any reasonable adjudicator

would be compelled to conclude to the contrary.” Kaita v. Att’y Gen, 522 F.3d 288, 296

(3d Cir. 2008) (citations omitted). An IJ may properly base an adverse credibility

determination on an applicant’s inconsistent testimony when the inconsistencies go to the

“heart of the claim.” Kaita, 522 F.3d at 296.1


   1
   The amendments contained in the REAL ID Act do not apply to Sun, as he filed his
application prior to May 11, 2005, the effective date of the Act.

                                             2
       The IJ determined that Sun’s demeanor suggested that Sun had fabricated his

testimony. The IJ observed that Sun paused for long periods between sentences and even

between words; he had trouble answering questions without coaching and appeared to be

recalling a script.

       The IJ also determined that Sun had testified inconsistently about two significant

events. First, Sun noted on his I-589 that he had been baptized on March 10, 2002.

When asked by his attorney at the merits hearing what, if anything, happened on that date,

Sun said that nothing happened. He then stated that he was arrested on that date. Sun

offered no testimony regarding his baptism. Second, Sun stated in his I-589 that the

police detained him for sixteen days after a meeting of the underground church. At the

merits hearing, however, Sun had troubling recalling whether he had been detained in

2002 or 2003, nor could he offer a consistent description of the length of detention.

Although he testified that his detention lasted sixteen days, the period he recounted –

August 10, 2002, to August 16, 2002 – covered only seven days.2

       The BIA affirmed the IJ’s adverse credibility determination and agreed that Sun

had testified inconsistently about his baptism and his detention, matters that the BIA

determined went to the heart of his claim. The BIA also concluded that the IJ properly

had relied on his observations of Sun’s demeanor in evaluating his credibility.

       On appeal, Sun argues that the IJ improperly relied on “minor inconsistencies” in


   2
    When asked to explain the discrepancy, Sun stated that the detention may have lasted
only fifteen days.

                                             3
making an adverse credibility determination. Sun’s testimony did not contain merely

minor inconsistencies. Sun confused the date of his baptism with the date of his

detention; he had trouble recalling the year of his detention; and he could not testify

coherently about the length of his detention. Sun’s demeanor, his failure to discuss his

baptism when asked by his own attorney, and his imprecision regarding the dates of his

detention all support the IJ’s and BIA’s conclusion. A reasonable adjudicator would not

be compelled to conclude to the contrary. As a result, the IJ and the BIA properly

determined that Sun had not proven his eligibility for asylum, withholding of removal or

CAT relief.

       Sun further argues that the IJ erred in basing his credibility determination on Sun’s

failure to testify about details that neither the government nor the IJ elicited from him.

According to Sun, neither the government nor the IJ asked him to testify regarding his

Christian faith; therefore, Sun contends, he should not have been penalized for not

explaining the tenets of his faith or why he is a Christian. Sun also argues that the IJ

erred in requiring corroboration of nonessential facts, without providing any notice that

such corroboration would be required. As the BIA did not base its decision on Sun’s

failure to testify about his faith or his failure to corroborate particular facts, neither of

these arguments alters our conclusion.

       For the foregoing reasons, the petition for review will be denied.




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