                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4198




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                                MEMORANDUM

                                   September 8, 2003




To:           Marcia Waldron, Clerk

From:         Judge Ambro

Re:           Wen Cheng Lu v. Ashcroft, Atty Gen USA
              No. 02-4198
              Submitted July 31, 2003




Dear Marcy:

             Enclosed for filing is a not precedential opinion in the above captioned
matter. A signed original is being placed in the mail to you today.

                                         Sincerely,


                                         Thomas L. Ambro


TLA/ljv

Attachment
cc:   Chief Judge Scirica
      Judge Rendell
      PACRATS
                                                                 NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 02-4198


                                 WEN CHENG LU,
                                a/k/a Lu Wen Cheng,

                                                    Petitioner

                                         v.

                   JOHN ASHCROFT, ATTORNEY GENERAL
                    OF THE UNITED STATES OF AMERICA,

                                                    Respondent




                        On Appeal from an Order Entered in
                         The Board of Immigration Appeals
                               (No. A 73-854-254)


                     Submitted Under Third Circuit LAR 34.1(a)
                                  July 31, 2003

       Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges

                         (Opinion filed: September 11, 2003)


                                     OPINION


AM BRO, Circuit Judge

      The Immigration and Naturalization Service (“INS”) instituted removal
proceedings against petitioner Wen Cheng Lu, who sought asylum, withholding of

deportation and voluntary departure under the Immigration and Nationality Act (“INA”).

Denied relief by the Immigration Judge (“IJ”), Lu appealed to the Board of Immigration

Appeals (“BIA”), which affirmed the IJ’s decision. He subsequently filed this petition for

review, a petition that we dismiss.

I.       Facts and Procedural History

         Wen Cheng Lu is a eighteen-year-old native and citizen of the People’s Republic

of China. He attempted to enter the United States on September 5, 1997 under a passport

issued in the name of Bing Xing Zheng that contained a lawful permanent resident stamp.

At a secondary inspection point, Lu admitted that the passport did not belong to him. He

told the immigration officer that he had left China because he wanted to make more

money. The INS1 placed Lu in removal proceedings, charging him as an arriving alien

not in possession of valid entry documents and as an arriving alien likely to become a

public charge. INA § 212(a)(7)(A)(i)(I) and (a)(5); 8 U.S.C. § 1227(a)(7)(A)(i)(I) and

(a)(5). Lu applied for asylum, withholding of removal and voluntary departure.

         At Lu’s removal hearing, the IJ concluded that the INS had not proven that Lu

would likely become a public charge. Lu, however, admitted that he did not possess valid




     1
    As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has ceased to exist as an agency within the Department of Justice
and its enforcement functions have been transferred to the Department of Homeland
Security.

                                             2
entry documents and the IJ therefore found him removable on that basis. Lu argued that

he was entitled to asylum because, he alleged, both he and his family had suffered

persecution as a result of their violation of and opposition to China’s family planning

policy. In 1979, China enacted a family planning policy designed to limit family sizes.

Lu’s family violated that policy by having more than one child; Lu was, in fact, the first

of four children. He testified that his mother was threatened with forced sterilization. He

further stated that he was not allowed to attend school in his hometown because his

mother had not been sterilized, although he was allowed to attend school in another

village. Lu also testified that he wrote a letter and posted it outside the Board of

Education, claiming that the family planning policies had caused his family to be

separated and him to lose his educational rights. He did not sign the letter and told the

police that he had not written the letter.

       The IJ rejected Lu’s claims for asylum because he found Lu’s testimony not

credible. He also found that, even if Lu’s testimony were credible, he had not stated a

claim for persecution. Finally, because the IJ concluded that Lu’s “application for asylum

was an intentional attempt to deceive the Court, to mislead the Court to obtain a benefit

under the Act through fabrications” and was therefore frivolous, he found Lu ineligible

for voluntary departure.

       Lu appealed to the BIA. It affirmed in part and reversed in part. It dismissed as

unpersuasive Lu’s arguments that the IJ’s credibility findings did not concern material



                                              3
portions of Lu’s testimony. The IJ’s adverse credibility findings were “based on

inconsistencies and omissions that are central to the claim,” the BIA found. Further, “the

discrepancies and omissions are actually present in the record” and those inconsistencies

“provide specific and cogent reasons for the adverse credibility findings.” The BIA also

held that, even assuming Lu had testified credibly, he failed to establish that he had

suffered past persecution or had a reasonable fear of future persecution. Lu was “at best,

the child of an individual who may have been persecuted in China due to her violation of

China’s family planning policies; however, we do not find that a child of a person who

has been subject to harm due to her violation of coercive population control policies in

China” is a refugee entitled to asylum. Finally, the BIA reversed the IJ’s conclusion that

Lu was not entitled to voluntary departure because it concluded that Lu had not filed a

frivolous asylum application, and granted Lu voluntary departure. This appeal followed.2

II.       Discussion

          The Attorney General may grant asylum to an alien who demonstrates that he or

she is a refugee. INA, § 208(b)(1), 8 U.S.C. § 1158(b)(1). A refugee is someone who is

unable or unwilling to return to his or her country because of a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1158(b)(1). An applicant is


      2
   This Court has jurisdiction to review final orders of removal pursuant to 8 U.S.C. §
1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001).


                                              4
eligible for asylum on the basis of past persecution if he or she can show: “(1) an incident,

or incidents, that rise to the level of persecution; (2) that is ‘on account of’ one of the

statutorily-protected grounds; and (3) is committed by the government or forces the

government is either ‘unable or unwilling’ to control.” Gao v. Ashcroft, 299 F.3d 266,

271-72 (3d Cir. 2002). An applicant is eligible for asylum because of his or her fear of

future persecution upon showing both that he or she possesses a genuine fear and that a

reasonable person would fear persecution if returned to that country. Id. at 272. Aliens

bear the burden of supporting their asylum claims through credible testimony. Id.

       Here, the BIA found that Lu failed to meet his burden to demonstrate past

persecution or a well-founded fear of future persecution because his testimony was not

credible. W e review that finding under the substantial evidence standard. Abdille v.

Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478

(1992)). Under this standard, we may reverse only if we conclude “that the evidence not

only supports [the opposite] conclusion but compels it.” Elias-Zacarias, 502 U.S. at 481

n.1 (emphasis in text). We uphold credibility determinations that are “supported by

reasonable, substantial, and probative evidence on the record considered as a whole.”

Abdille, 242 F.3d at 483. Only discrepancies that “involve the heart of the asylum claim”

can support an adverse credibility finding. Gao, 299 F.3d at 272. “Minor inconsistencies

that reveal nothing about an asylum applicant's fear for his safety are not an adequate

basis for an adverse credibility finding.” Id.



                                                 5
       The BIA’s conclusion that Lu’s testimony was not credible is supported by

substantial evidence in the record. As explained in detail by the IJ, there are numerous

inconsistencies between Lu’s testimony at his removal hearing, the information Lu

provided in his asylum application and his testimony to immigration officers at the

airport. These inconsistencies involve matters ranging from the time when Lu’s mother

began to be harassed by family planning officials (right after Lu’s birth in 1981,

beginning in 1983 after the birth of his sister, or starting in 1994 after the birth of her

fourth child) to the type of punishment Lu’s mother was threatened with during a visit by

the family planning officials in February 1995 (a fine according to one version, a notice

of required sterilization according to another account). These inconsistencies go to the

heart of Lu’s asylum claim. Gao, 299 F.3d at 272.

       As a result, we conclude that the BIA’s adverse credibility finding is supported by

substantial evidence. Because we conclude that the BIA’s adverse credibility

determination is supported by substantial evidence, we need not consider whether Lu is

entitled to asylum because of the alleged persecution he suffered as a result of his and his

family’s opposition to China’s family planning policy.

              *              *              *              *

       For these reasons, we dismiss Lu’s petition for review.




                                                6
By the Court,




/s/ Thomas L. Ambro
Circuit Judge




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