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


7-8-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3001




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 07-3001
                                     ___________

                                   HONG YAN LU,
                                                       Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

  On Petition for Review of an Order of Removal of the Board of Immigration Appeals
                               Agency No. A97-391-232
                          Immigration Judge: Henry S. Dogin
                      ____________________________________

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

              Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                              (Opinion filed: July 8, 2008)
                                      _________

                                        OPINION
                                       _________

PER CURIAM

      Hong Yan Lu petitions for review of an order of the Board of Immigration

Appeals (“BIA”), dismissing her appeal from an order of an Immigration Judge (“IJ”) that

denied her application for asylum, withholding of removal or protection under the
Convention Against Torture (“CAT”). As the IJ’s adverse credibility determination is

supported by substantial evidence, we will deny the petition for review.

       Lu, a native and citizen of the People’s Republic of China, was paroled into the

United States on August 23, 2003, in Miami, Florida. On September 2, 2003, the

Department of Homeland Security (“DHS”) served Lu a Notice to Appear, charging her

with being subject to removal under § 212(a)(6)(C)(ii) of the INA, for falsely representing

herself as a U.S. citizen to gain an immigration benefit, and § 212(a)(7)(A)(i)(I), for

lacking a valid entry document. Lu admitted the allegations and applied for asylum and

withholding of removal or CAT relief. The IJ denied relief, finding that Lu had not

testified credibly about her past or present connection with Falun Gong or her fear of

persecution upon return to China. The BIA affirmed.

       Lu argues that the IJ’s adverse credibility determination, as affirmed by the BIA, is

not supported by substantial evidence. She also contends that her claim succeeds based

on the State Department’s country conditions report for China.

       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).



                                              2
       An applicant for asylum bears the burden of establishing that she is unable or

unwilling to return to her home country “because of [past] persecution or well-founded

fear of future persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion[.]” 8 U.S.C. § 1101(a)(42)(A); see 8 C.F.R. §

1208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). “The [applicant] must

show by credible, direct, and specific evidence an objectively reasonable basis for the

claimed fear of persecution.” Chen, 376 F.3d at 223.

       The IJ’s adverse credibility determination in this case is supported by substantial

evidence. The BIA found it significant that Lu testified that her mother was forcibly

arrested for participating in Falun Gong before Lu left China, contrary to Lu’s mother’s

statement in a letter that she turned herself in to the authorities after Lu left China. The

BIA noted that Lu indicated on her asylum application that she resided with her parents

prior to fleeing China, but she testified later that she was in hiding at a friend’s home

prior to fleeing China. Finally, the BIA noted that, upon her initial entry to the United

States at the Miami International Airport, Lu stated that her sole reason for coming to the

United States was to find work because there were no jobs in China; she made no mention

of Falun Gong. Although we have held that immaterial discrepancies between airport

interviews and subsequent testimony should not be used to make an adverse credibility

determination, the discrepancy here is central to Lu’s application, as it relates to her

reasons for seeking entry to the United States. An IJ may properly rely on more



                                              3
substantial discrepancies when the airport interview was conducted in the petitioner’s

native language, and there are no concerns about the manner in which the interview was

conducted or transcribed. Chen, 376 F.3d at 224. Lu was interviewed at the airport in her

native language, Mandarin, and her statements were elicited under oath and then

transcribed. Accordingly, the IJ and the BIA properly relied upon discrepancies between

Lu’s testimony at the merits hearing and her prior statements under oath at the airport.

       We also disagree with Lu’s assertion that her asylum claim succeeds on the

strength of the evidence of persecution of Falun Gong members contained in the country

conditions report. The country conditions report does not compel a finding that Lu has

met her burden of proof to show an objectively reasonable basis for her claimed fear of

persecution. Lu’s asylum claim, therefore, must fail. It follows that Lu is not eligible for

withholding of removal. Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006).

Lu also has not demonstrated that, more likely than not, she would be tortured if she is

forced to return to China. Accordingly, her claim for relief under CAT also fails. For the

foregoing reasons, we will deny the petition for review.




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