                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-2155




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                   PRECEDENTIAL         Bruno J. Bembi (argued)
                                        62 Nichols Court
   UNITED STATES COURT OF               Suite 202
          APPEALS                       Hempstead, NY 11550
    FOR THE THIRD CIRCUIT
                                           Attorney for Petitioner

            No. 03-2155                 Peter D. Keisler
                                        Assistant Attorney General
                                        Civil Division
        HE CHUN CHEN,                   Earle B. Wilson
             a/k/a                      Douglas E. Ginsburg
        HE ZHONG CHEN                   John D. Williams
                                        Terri J. Scadron
                  v.                    Joshua E. Braunstein (argued)
                                        Efthimia S. Pilitsis
JOHN ASHCROFT, Attorney General         United States Department of Justice
      of the United States,             Office of Immigration Litigation
                                        P.O. Box 878
                          Respondent    Ben Franklin Station
                                        Washington, DC 20044
           He Chun Chen,
                                           Attorneys for Respondent
                          Petitioner

                                              OPINION OF THE COURT
On Petition for Review of an Order of
 the Board of Immigration Appeals
   (INS File Nos. A77-297-487)
                                        GREENBERG, Circuit Judge.


       Argued June 28, 2004
                                                  I. INTRODUCTION
BEFORE: AMBRO, BECKER, and                     This matter comes on before this
  GREENBERG, Circuit Judges             court on He Chun Chen’s petition for
                                        review of a decision of the Board of
        (Filed: July 26, 2004)          Immigration Appeals (“BIA”) dismissing
                                        his appeal from an order of an Immigration
                                        Judge (“IJ”) denying his application for
                                        asylum and withholding of removal or in
                                        the alternative for protection under the
                                        Convention Against Torture. Inasmuch as
we find that substantial evidence in the           in detail. Chen testified at an October 4,
record supports the findings of both the IJ        2000 hearing before the IJ that he is from
and the BIA, we will deny the petition.            Fuzhou City in the Fujian Province of
                                                   China, where he graduated from high
                                                   school in 1981. From 1981 through 1996
                                                   Chen worked in construction and in 1996
 II. FACTUAL AND PROCEDURAL                        he opened a bookstore. Chen married Ha
HISTORY                                            Yun Ni on October 27, 1994, who, on
                                                   August 20, 1995, gave birth to a daughter.
        Chen, a native and citizen of the          One month later the government family
People’s Republic of China, arrived in the         planning authorities took his wife to Guan
United States at Los Angeles International         Tou Hospital for insertion of an intra-
Airport on December 23, 1999, and                  uterine device (“IUD”) to prevent
applied for admission without valid entry          pregnancy. According to Chen, the family
documents. On February 22, 2000, the               planning regulations required the insertion
Immigration and Naturalization Service             of an IUD after the birth of a child but,
(“INS”), whose functions since have been           after four years, permit a family to request
transferred to the Department of Homeland          permission to have another child.
Security, initiated removal proceedings
against Chen by serving him with a notice                  Chen testified that the IUD must
to appear. At a hearing before an IJ in            have failed because in early 1996 his wife
which he was represented by counsel,               discovered that she was pregnant.
Chen conceded removability but indicated           According to Chen, the family planning
that he intended to seek political asylum,         authorities required his wife once every
withholding of deportation, and protection         three months to go for “inspections” to
under the Convention Against Torture.              check on her IUD and ensure that she was
Chen predicates his claims on allegations          not pregnant. When Chen’s wife did not
that Chinese authorities forced his wife to        go for the scheduled inspection of her IUD
terminate two pregnancies and caused her           by the authorities, they came on April 26,
to be sterilized forcibly in accordance with       1996, to the family home to find her. At
the coercive family planning practices of          that time Chen was at his bookstore.
the Chinese government. He also alleges            When he returned home that night his wife
that the Chinese authorities ransacked and         told him that the authorities had taken her
closed his bookstore because he sold Falun         to Lian Jiang Hospital and forced her to
Gong literature.                                   undergo an abortion against her will.
                                                   Chen said that while his wife did not tell
       In recognition of the circumstance          him about the procedure in detail, she did
that the IJ and the BIA premised their             mention that she was given a shot. On the
denial of his application on Chen’s lack of        same day as the abortion the authorities
credibility, we will recount his testimony         also forced her to have another IUD

                                               2
inserted.                                            Nevertheless, even though he was warned
                                                     not to sell the Falun Gong books, Chen
       Chen testified that in 1998 he                continued to do so because it was
petitioned for permission to have a second           profitable. Chen testified that he received
child. The authorities denied this request,          a second warning that he should cease all
citing the earlier violation of the family           sales of Falun Gong materials. Chen,
planning policy. Unbeknownst to the                  however, informed an immigration officer
Chinese government, he and his wife then             in California in February 2000 that the
decided to elicit the assistance of a private        Chinese government gave him “a” warning
physician to remove the IUD, and in April            about selling Falun Gong books. AR 1 at
1998 Chen’s wife had the IUD removed.                199-200.
One month later in May 1998 Chen’s wife
discovered that she was pregnant again.                      Chen testified that he was not a
When the authorities notified her that it            member of Falun Gong, but only sold its
was time for an inspection of the IUD in             books, though at the airport interview
July, Chen’s wife went into hiding at her            conducted on the day of his arrival in the
parents’ house in Guan Tou. On August                United States, Chen told an immigration
31, 1998, the authorities found Chen’s               official that he was a practitioner of Falun
wife at her parents’ home and took her to            Gong. When asked by the IJ why he made
Lian Jiang Hospital for another forced               this statement even though it was not true,
abortion. As with the first abortion,                Chen responded that “[t]he smuggler
Chen’s wife was given a shot. The                    taught me to say that, they said that I have
authorities also inserted another IUD on             to say that. They said, they told me not to
the same day. The following year Chen                say anything else, just say I am a Falun
again submitted a request to the Chinese             Gong follower.” AR at 202. Chen,
government to have another child but this            however, never mentioned anything at his
time the authorities granted the request. In         airport interview about his family’s
October 1999 Chen’s wife discovered that             difficulties with the family planning
she was pregnant.                                    policies in China.

        Chen also testified before the IJ that               Chen testified that when he refused
he sold Falun Gong books by Li Hong Zhi              to heed the cadres’ warnings, the Chinese
in his bookstore from April 1996 through             authorities in May 1999 confiscated his
April 1999, when the Chinese government              books, destroyed the bookstore, and closed
destroyed and closed the store.                      it down. Chen then went into hiding. He
Government cadres came to his store and              testified that he stayed with an uncle in
notified him that he no longer could sell
Falun Gong books. According to Chen,
the government officials explained that                1
                                                       We cite the administrative record as
Falun Gong was an evil religion.
                                                     AR.

                                                 3
Changle City until November 1999,                   but she had to return to their home because
though in an earlier interview with United          it was the anniversary of the death of
States immigration authorities Chen stated          Chen’s mother. Chen testified that the
that he stayed with a relative until                authorities found his wife at their home
September 1999. When confronted with                and brought her to Mawei Hospital for the
this inconsistency during the immigration           sterilization. A letter submitted by Chen
hearing Chen responded “[m]aybe I made              from his wife states, however, that the
a mistake?” AR at 200.                              family planning officials found her at her
                                                    parents’ home and took her for the
       Two months later on December 21,             sterilization from there.
1999, Chen left China with the assistance
of “snakeheads.” Chen traveled to Hong                      Chen testified that he was applying
Kong, then to Jakarta, Indonesia, on to             for political asylum because he violated
Malaysia and finally to Los Angeles.                China’s family planning policies and sold
Chen testified that he left China because           Falun Gong books in his bookstore. He
he knew that if his wife gave birth to a            indicated that he feared returning to China
son, she definitely would be sterilized. He         because he might be sterilized. When the
explained that his wife did not come to the         IJ asked why the authorities would sterilize
United States because she was pregnant              him inasmuch as his wife already had been
and not feeling well.                               sterilized, he stated that he would not be
                                                    sterilized and had “made a mistake.” AR
        On July 13, 2000, Chen’s wife gave          at 185.
birth to a son. Two months later, on
September 6, 2000, the Chinese authorities                  At the conclusion of the hearing,
sterilized his wife. Inasmuch as Chen was           the IJ issued an oral decision denying
in the United States when his wife was              Chen relief. In particular, the IJ found that
sterilized, he obtained the information that        Chen failed to establish a well-founded
he provided at the hearing about the                fear of persecution, a necessary showing
sterilization from her. In this regard the IJ       for him to be eligible for asylum.
questioned Chen why his wife would be               Therefore, the IJ found that it was not
sterilized inasmuch as he was already in            necessary to consider whether Chen was
the United States and therefore there               eligible for relief as a matter of discretion.
seemed little risk of pregnancy. Chen               The IJ also denied Chen’s application for
responded that “[t]hey don’t care, as long          withholding of removal and found that
as you gave birth to two, two children, and         Chen had not shown that more likely than
then they don’t care, either the male or the        not he would be tortured if he returned to
female must be sterilized.” AR at 173.              China, and, accordingly, he did not merit
                                                    protection under the Convention Against
       According to Chen, his wife stayed           Torture.
at her mother’s home after he left China,

                                                4
       In reaching his conclusions, the IJ                testimony as to the timing of his departure
found that Chen’s testimony lacked                        from China. Chen testified that he left
credibility in several respects. First, the IJ            China after he and his wife had received
explained that he found Chen’s testimony                  permission to have a second child and
that on two occasions his wife had an IUD                 while his wife was pregnant. The IJ
inserted on the same day she had an                       stated:
abortion as “not only incredible but also
                                                                 It makes absolutely no sense
implausible.” The IJ reasoned that “due to
                                                                 to the Court that if the
the physical trauma of an abortion, the
                                                                 respondent and his wife
Court finds that it is unlikely and most
                                                                 were granted permission to
likely physically impossible to insert an
                                                                 have another child, that the
IUD in an individual who has earlier that
                                                                 govern me nt w ould be
day suffered an abortion.” AR at 97.
                                                                 considering sterilizing either
                                                                 the respondent or his wife.
          Moreover, the IJ questioned Chen’s
                                                                 Thus, it makes absolutely no
t e s ti m o n y r e g a r d i n g h i s w i f e ’s
                                                                 sense to the Court and it is
sterilization. He stated that “[t]his line of
                                                                 implausible testimony that
testimony again is not credible to the Court
                                                                 the respondent would wish
and the Court does not understand why the
                                                                 to leave China due to the
authorities would wish to sterilize the
                                                                 family planning policy after
respondent’s wife since the respondent,
                                                                 he had received permission
himself, was in the United States.” AR at
                                                                 to have this second child.
98. In addition, the IJ identified an
inconsistency in Chen’s recounting of his
wife’s sterilization. Chen testified that the
                                                          AR at 100-01. The IJ also pointed to the
authorities found his wife at their home,
                                                          discrepancy in Chen’s testimony regarding
while Chen’s wife’s letter indicated that
                                                          the length of time he stayed at his uncle’s
the authorities located her at her parents’
                                                          home in Changle City while he was in
home. The IJ also pointed out that Chen
                                                          hiding prior to leaving for the United
contradicted himself during his testimony
                                                          States. At the hearing Chen testified that
regarding his fear of sterilization. Thus,
                                                          he lived with his uncle until November
while Chen first testified that he feared
                                                          1999 while he previously had informed an
that if he returned to China he would be
                                                          immigration official that he stayed with a
sterilized, when the IJ asked why the
                                                          relative only until September 1999.
authorities would sterilize him inasmuch
as they already had his wife sterilized, he                       The IJ also indicated that Chen’s
responded that he would not be sterilized                 testimony relating to his bookstore lacked
and had made a mistake.                                   credibility. Chen testified that government
                                                          officials warned him twice that he should
        The IJ also questioned Chen’s                     discontinue selling Falun Gong books.

                                                      5
However, the IJ pointed out that at an             issued its decision dismissing Chen’s
earlier interview with an immigration              appeal. In support of its decision, the BIA
official Chen stated that he only had been         cited the numerous inconsistencies pointed
given “a” warning.                                 out by the IJ. The BIA noted the
                                                   discrepancy between Chen’s wife’s
       Furthermore, the IJ emphasized that
                                                   account of where she had been when she
while Chen testified that he was not a
                                                   was taken for sterilization and Chen’s
member of Falun Gong, at his airport
                                                   testimony before the IJ. The BIA further
interview he informed the immigration
                                                   found that Chen failed to sustain his
officer that he was in fact a member. Chen
                                                   burden of proof in showing that his wife
explained during his testimony that the
                                                   was subjected to two forced abortions.
smugglers had told him to say this. The IJ
                                                   While it recognized that Chen submitted
also noted that Chen never mentioned
                                                   two abortion certificates, it questioned
anything during his airport interview about
                                                   their validity, citing the Department of
any difficulties his family had with
                                                   State country report which states that
China’s family planning policies. The IJ
                                                   “such purported certificates, if they exist at
explained that Chen was alone with the
                                                   all, may be documents issued to women
immigration official at the airport, and,
                                                   who voluntarily submit to an abortion and
therefore, “[n]otwithstanding what the
                                                   are entitled to the resulting benefits.” AR
snakeheads had told him to say, I see no
                                                   at 2. The BIA also explained that Chen
reason why the respondent would not tell
                                                   had failed to prove a well-founded fear of
the inspector the truth, and why his
                                                   persecution on account of China’s coercive
testimony would not coincide with the
                                                   family practices because he recognized
testimony given to the Court today,
                                                   that he would not face sterilization if he
specifically concerning the problems that
                                                   returned to China.
his wife has experienced.” AR at 103.
                                                           The BIA found that the record
       Overall, after considering the entire
                                                   supported an ad verse credib ility
record before him, the IJ concluded that
                                                   determination as to Chen’s claim related to
Chen had “not established, due to his lack
                                                   his sale of Falun Gong books. It pointed
of credibility a well-founded fear of
                                                   to the discrepancy in Chen’s account as to
persecution if he were returned to China.
                                                   how many times he was warned to stop
Accordingly, his application for asylum
                                                   selling the books prior to the Chinese
will be denied.” AR at 104. The IJ also
                                                   officials closing down his shop. AR at 2.
denied Chen’s application for withholding
                                                   The BIA further cited the false story that
of removal and for protection under the
                                                   Chen gave at the airport that he was a
Convention Against Torture. Thus, the IJ
                                                   follower of Falun Gong. It noted that
entered orders denying Chen any relief.
                                                   Chen did not support this aspect of his
       Chen appealed from this disposition         claim with “objective evidence that a
to the BIA. On April 3, 2003, the BIA              bookstore owner may have acquired over


                                               6
the years to corroborate his claim that he          credibility determination of the BIA or IJ
owned a bookstore and that the bookstore            unless “any reasonable adjudicator would
was closed.” AR at 3. The BIA concluded             be compelled to conclude to the contrary.”
that “[f]or those reasons and others cited in       8 U.S.C. § 1252(b)(4)(B). Accordingly,
the Immigration Judge’s decision, the               we are required to sustain an adverse
Immigration Judge correctly denied the              credibility determination “unless . . . no
respondent’s application for asylum and             reasonable person” would have found the
withholding of removal.” AR at 3. The               applicant incredible. See Concrete Pipe &
BIA also upheld the IJ’s determination              Prods. of Cal., Inc. v. Constr. Laborers
with respect to Chen’s application for              Pension Trust for S. Cal., 508 U.S. 602,
protection under the Convention Against             623, 113 S.Ct. 2264, 2280 (1993). For
Torture. Consequently, it dismissed his             Chen to prevail, the evidence of credibility
appeal.                                             must be so strong in his favor that in a
                                                    civil trial he would be entitled to judgment
       Chen timely filed this petition for
                                                    on the credibility issue as a matter of law.
review, limiting his arguments to his
                                                    See INS v. Elias-Zacarias, 502 U.S. 478,
asylum and withholding of removal
                                                    481 n.1, 112 S.Ct. 812, 815 n.1 (1992)
claims, thus abandoning his claim for
                                                    (holding that the BIA’s decision can be
protection under the Convention Against
                                                    reversed only where the petitioner’s
Torture.
                                                    evidence “compels” a reasonable
                                                    factfinder to find in his or her favor).
                                                    How ever, adverse cred ibility
III. JURISDICTION AND SCOPE OF
                                                    determinations “based on speculation or
    AND STANDARD OF REVIEW
                                                    conjecture, rather than on evidence in the
       The BIA had jurisdiction over this           record, are reversible.” Dia v. Ashcroft,
matter pursuant to 8 C.F.R. § 3.1(b)(3)             353 F.3d 228, 249 (2003) (en banc)
(2002), now 8 C.F.R. § 1003.1(b)(3),                (quoting Gao v. Ashcroft, 299 F.3d 266,
which grants it appellate jurisdiction over         272 (3d Cir. 2002)).
decisions of immigration judges in
                                                           In addition to setting forth our
removal cases.       We have exclusive
                                                    standard of review we must determine its
jurisdiction under section 242(a)(1) of the
                                                    scope, i.e. does our appellate jurisdiction
Immigration and Nationality Act (“INA”),
                                                    encompass review of the IJ’s decision as
8 U.S.C. § 1252(a)(1), to review final
                                                    well as the BIA’s order? We recently have
orders of removal.
                                                    recognized that when the BIA both adopts
       We review adverse credibility                the findings of the IJ and discusses some
determinations for substantial evidence.            of the bases for the IJ’s decision, we have
Balasubramanrim v. INS, 143 F.3d 157,               authority to review the decisions of both
161 (3d Cir. 1998). Under this deferential          the IJ and the BIA. Xie v. Ashcroft, 359
standard of review, we must uphold the              F.3d 239, 242 (3d Cir. 2004); see also


                                                7
Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2         she is “unable or unwilling to return to . .
(3d Cir. 2001) (“When the BIA defers to            . that country [of nationality] because of
an IJ, a reviewing court must, as a matter         persecution or a well-founded fear of
of logic, review the IJ’s decision to assess       persecution on account of race, religion,
whether the BIA’s decision to defer was            nationality, membership in a particular
appropriate.”).        Wh ere t he B IA            social group, or political opinion.” 8
substantially relies on an IJ’s adverse            U.S.C. § 1101(a)(42)(A). The definition
credibility determination, we must look to         of “refugee” includes “a person who has
both decisions in order to satisfy our             been forced to abort a pregnancy or to
obligation under 8 U.S.C. § 1252(b) to             undergo involuntary sterilization” under
review the administrative decision                 the ambit of persecution “on account of
meaningfully. Xie, 359 F.3d at 242; see            political opinion.” Id. § 1101(a)(42)(B).
also Dia, 353 F.3d at 243.                         The BIA has extended this protection to
                                                   include the spouse of an individual who
       The BIA’s decision in this case
                                                   has been sterilized or otherwise subject to
makes clear that it was relying upon the
                                                   a coercive population control program as
adverse credibility finding made by the IJ.
                                                   defined by 8 U.S.C. § 1101(a)(42)(B) and
While the BIA identified some of the
                                                   we decide this appeal assuming the
inconsistencies the IJ cited, it did so by
                                                   validity of that conclusion. In re C-Y-Z,
way of example and did not conduct a de
                                                   21 I. & N. Dec. 915, 918 (BIA 1997). In
novo review of the record to arrive
                                                   that case the BIA found that a husband
indep ende ntly at its conclusions.
                                                   could “stand in [the] shoes” of a wife who
Inasmuch as the BIA deferred to the IJ’s
                                                   had been sterilized forcibly and therefore
credibility determinations and adopted the
                                                   was eligible for asylum on that basis. Id.2
reasons the IJ set forth, we have authority
to review both determinations.

                                                     2
                                                       This case demonstrates what should
           IV. DISCUSSION                          be obvious. C-Y-Z permits a husband to
                                                   capitalize on the persecution of his wife
       The framework in which we review
                                                   to obtain asylum even though he has left
the administrative determinations is well
                                                   his wife behind and she might never join
established. Section 208(a) of the INA, 8
                                                   him and he might intend that she not do
U.S.C. § 1158(b), gives the Attorney
                                                   so. Such an outcome in which the
General discretion to grant asylum to any
                                                   application of our laws would contribute
alien who demonstrates that he or she is a
                                                   to the destruction of a family union
“refugee” within the meaning of section
                                                   seems anomalous, at least in situations in
101(a)(42)(A) of the INA, 8 U.S.C. §
                                                   which the husband does not make a
1101(a)(42)(A). Elias-Zacarias, 502 U.S.
                                                   compelling showing that if he is granted
at 481, 112 S.Ct. at 815. To qualify as a
                                                   asylum his wife will be able to join him
“refugee,” one must demonstrate that he or
                                                   in this country. Indeed, the application

                                               8
        U n like asylum , w hich          is               As we often have recognized, the
discretionary, the Attorney General must           substantial evidence standard of review is
grant withholding of removal if the alien          extremely deferential, setting a “high
demonstrates a “clear probability” that,           hurdle by permitting the reversal of factual
upon return to his or her home country, his        findings only when the record evidence
or her “life or freedom would be                   would ‘compel’ a reasonable factfinder to
threatened” on account of race, religion,          make a c on tra ry de te r mina ti o n .”
nationality, membership in a particular            Abdulrahman v. Ashcroft, 330 F.3d 587,
social group, or political opinion. See INS        597 (3d Cir. 2003) (quoting Elias-Zacarias,
v. Stevic, 467 U.S. 407, 104 S.Ct. 2489            502 U.S. at 481 n.1, 112 S.Ct. at 815 n.1).
(1984); Zubeda v. Ashcroft, 333 F.3d 463,          We therefore look at the adverse
469-70 (3d Cir. 2003). An alien who fails          credibility determinations made by the IJ
to establish that he or she has a well-            and BIA “to ensure that [they were]
founded fear of persecution, so as to be           ‘appropriately based on inconsistent
eligible for a grant of asylum, necessarily        statements, contradictory evidences, and
will fail to establish the right to                inherently improbable testimony . . . in
withholding of removal. Zubeda, id. at             view of the background evidence on
469 (citing Janusiak v. INS, 947 F.2d 46,          country conditions.’” Dia, 353 F.3d at 249
47 (3d Cir. 1991)).                                (citation omitted). While, as we will
                                                   explain, we are troubled by some of the
        The applicant for asylum has the
                                                   speculative statements the IJ and the BIA
burden of proof to establish his or her
                                                   made, after reviewing the record as a
eligibility for asylum.      8 C.F.R. §
                                                   whole we are convinced that the record
208.13(a) (2002); Abdille v. Ashcroft, 242
                                                   evidence does not compel us to reach a
F.3d 477, 482 (3d Cir. 2001). The alien
                                                   conclusion contrary to that of the IJ and
must show by credible, direct, and specific
                                                   the BIA.
evidence an objectively reasonable basis
for the claimed fear of persecution.                       We recognize that we have
Balasubramanrim, 143 F.3d at 165.                  counseled against placing too much weight
                                                   on an airport interview, especially when
                                                   the IJ and BIA lack important information
of our laws may be encouraging                     as to the manner in which the interview
husbands to desert their wives. While we           was conducted. Xie, 359 F.3d at 246;
recognize that historically in persecution         Mulanga v. Ashcroft, 349 F.3d 123, 137
cases married men sometimes have come              (3d Cir. 2003) (“immaterial discrepancies
to this country first and then have been           between airport interviews and subsequent
followed by their families, C-Y-Z, 21 I.           testimony should not be used to make
& N. Dec. 915, at 920, 927 (Rosenberg,             adverse credibility determinations”);
Member, concurring), still it would be             Ezeagwuna v. Ashcroft, 325 F.3d 396, 408
useful to study the actual impact of C-Y-          (3d Cir. 2003); Senathirajah v. INS, 157
Z on family structures.

                                               9
F.3d 210, 217-18 (3d Cir. 1998);                    practices in China. The only explanation
Balasubramanrim, 143 F.3d at 162-64.                Chen offered before the IJ was that the
We also have made clear that ambiguous              smugglers told him to inform the United
answers at airport interviews should not be         States immigration officials that he was a
relied upon to question the credibility of          Falun Gong follower. Both the IJ and the
the alien later, though we have limited             BIA reasonably relied on these
concern with that admonition here as Chen           contradictory statements in finding that
does not challenge the manner in which              Chen’s testimony lacked credibility.
the immigration official conducted the
                                                            The IJ also cited to other
airport interview and he does not maintain
                                                    discrepancies in Chen’s testimony leading
that the respondent has mischaracterized
                                                    to his adverse credibility determination for
his statements made at that interview.
                                                    which we find support in the record. The
Rather, he merely points out that the notes
                                                    IJ pointed to the discrepancy in Chen’s
from the airport interview are not in the
                                                    testimony regarding the length of time he
record and that it cannot be said when they
                                                    stayed at his uncle’s home in Changle City
were written or “whether [his] full
                                                    while he was in hiding prior to leaving for
responses were translated at the airport, or
                                                    the United States. At the hearing Chen
even whether he had an opportunity to
                                                    testified that he lived with his uncle until
make clear, as he did in immigration court,
                                                    November 1999 though he informed an
that the cadres thought he was a Falun
                                                    immigration official at an earlier interview
Gong follower.” Appellant’s br. at 59.
                                                    that he stayed with a relative only until
        On the other hand, where the                September 1999. In addition, Chen first
discrepancies between an airport interview          testified before the IJ that he feared that if
and the alien’s testimony “go to the heart          he returned to China he would be
of the claim,” they certainly support an            sterilized. When the IJ asked why the
adverse credibility determination. Xie,             authorities would sterilize him in light of
359 F.3d at 246. Here the record is clear           the circumstance that his wife already had
that Chen provided information at his               been sterilized, Chen responded that he
airport interview markedly different from           would not be sterilized and had made a
his testimony before the IJ. At his airport         mistake.     The IJ also pointed to a
interview he explained that he left China           discrepancy between Chen’s testimony
because he was unable to practice Falun             regarding his wife’s sterilization and a
Gong. In contrast, Chen testified before            letter provided by Chen from his wife.
the IJ that he was never a Falun Gong               Chen testified before the IJ that his wife
follower, but he did sell Falun Gong books          was apprehended by the family planning
at his bookstore. Furthermore, Chen never           authorities at their home, while Chen’s
mentioned anything during his airport               wife’s letter stated that the authorities
interview about any difficulties he or his          found her at her parent’s home.
wife had with the coercive family planning
                                                           We recognize, however, that while

                                               10
a review of the record evidence does not             sterilized even though he was in the United
compel that we reach a conclusion                    States does not strike us as implausible
contrary to that drawn by the IJ and the             given the regulations and therefore it does
BIA, just as Judge Becker stated in his              not support an adverse credibility
concurrence in Abdulrahman, 330 F.3d at              determination.
600, we note our “extreme discomfiture”
                                                             We also are troubled by several
with some of the statements the IJ made.
                                                     aspects of the BIA decision dismissing
The IJ dismissed Chen’s testimony that his
                                                     Chen’s appeal. The BIA noted that Chen
wife had an IUD inserted on the same day
                                                     failed to support his claim that he was
as an abortion on two separate occasions
                                                     persecuted for selling Falun Gong books
as “not only incredible but also
                                                     with “objective evidence that a bookstore
implausible,” reasoning that “due to the
                                                     owner may have acquired over the years to
physical trauma of an abortion, the Court
                                                     corroborate his claim that he owned a
finds that it is unlikely and most likely
                                                     bookstore and that the bookstore was
physically impossible to insert an IUD in
                                                     closed.” AR at 3. We have explained in
an individual who has earlier that day
                                                     the past that “the BIA may . . . sometimes
suffered an abortion.” AR at 97. This
                                                     require corroboration of otherwise-credible
statement is troublesome for two reasons.
                                                     testimony.” Abdulai, 239 F.3d at 545. In
First, the IJ is not a physician and while he
                                                     Abdulai, id. at 554, we deferred to the
finds the evidence regarding the IUD
                                                     three-part inquiry developed by the BIA in
unlikely, he does not point to evidence in
                                                     In re S-M-J, 21 I. & N. Dec. 722 (1997),
the record in support of his speculation.
                                                     for analyzing whether an alien should have
Second, the family planning regulations
                                                     offered corroborating evidence. The three-
from Chen’s province in the administrative
                                                     part test requires the BIA to: (1) identify
record clearly state that IUDs are inserted
                                                     the facts for which it was reasonable to
on that same day that “manual abortion[s]”
                                                     expect corroboration; (2) conduct an
take place. AR at 467.
                                                     inquiry as to whether the applicant has
           The IJ also questioned Chen’s             provided corroborating evidence; and (3)
credibility because he testified that his            if he or she has not provided such
wife was sterilized by the family planning           corroborating evidence, address whether
authorities even though there was no risk            the applicant adequately has explained his
of pregnancy inasmuch as he was out of               or her failure to do so. Mulanga, 349 F.3d
the country.           The family planning           at 133-34; Abdulai, 239 F.3d at 554. In
regulations, however, specifically state that        this case the BIA failed to follow the test
“[f]or those who have two children                   S-M-J set forth and explain why it was
already, hospitals should cooperate with             reasonable to expect such corroboration
r e l a te d d e pa rt m ents and enfo rce           and whether Chen adequately explained
sterilization operations on the spot.” AR            his failure to provide it.
at 467. Chen’s testimony that his wife was
                                                            The BIA also explained that Chen

                                                11
had failed to prove a well-founded fear of             validity of the abortion certificates based
persecution on account of China’s coercive             on nothing more than the country report.
family practices because he acknowledged
                                                               While we recognized in Liu v.
that he would not face sterilization if he
                                                       Ashcroft, 372 F.3d 529, 534 (3d Cir.
returned to China.      However, as we
                                                       2004), that remand is appropriate where
explained above, if the IJ and BIA found
                                                       “we have made a legal determination (e.g.,
Chen credible, he would be eligible for
                                                       regarding admissibility of evidence) that
asylum under the BIA’s decision in In re
                                                       fundamentally upsets the balancing of
C-Y-Z, 21 I. & N. Dec. at 918, because he
                                                       facts and evidence upon which an agency’s
stands in the shoes of his wife who was
                                                       decision is based,” that decision is
subject to forced abortions and coerced
                                                       inapplicable here. In Liu we made clear
sterilization. Therefore, even assuming
                                                       t h a t the impr o p e r r e je c t io n o f
that Chen would not face sterilization
                                                       unauthenticated abortion certificates by the
himself if he returned to China, this
                                                       IJ infected the adverse credibility
circumstance would not affect his
                                                       determination.       But the differences
eligibility for asylum.
                                                       between Liu and this case are apparent.
          We also note that the BIA rejected           The discrepancies in the testimony of the
the validity of the two abortion certificates          Lius were much less dramatic than the
submitted by Chen bec ause the                         differences in Chen’s airport interview and
Department of State’s country report states            his testimony before the IJ. Furthermore,
that “such purported certificates, if they             the IJ’s rejection in Liu of the petitioners’
exist at all, may be documents issued to               credibility was intertwined inextricably
women who voluntarily submit to an                     with his unwillingness to consider the
abortion and are entitled to the resulting             abortion certificates because they were not
benefits.” AR at 2, 361-62, 364-65. We                 authenticated. In contrast, here the IJ’s
previously have questioned such wholesale              adverse credibility determination related to
reliance on the Department of State’s                  the discrepancy between the airport
country reports, quoting with approval                 interview and Chen’s testimony as to his
Galina v. INS, 213 F.3d 955, 959 (7th Cir.             relationship with Falun Gong and thus was
2000), that “[t]he country report is                   separate and apart from the IJ’s improper
evidence and sometimes the only evidence               speculation as to the insertion of the IUD
available, but the Board should treat it               on the same day as the abortions, among
with a healthy skepticism, rather than, as is          other stated grounds.         We therefore
its tendency, as Holy Writ.” Lin v. INS,               conclude that Liu does not compel us to
238 F.3d 239, 248 (3d Cir. 2001); see also             remand this case to the BIA or even justify
Ezeagwuna, 325 F.3d at 407. The BIA                    us in doing so.
“ c a n n o t h i d e b e h in d t h e S t a te
Department’s letterhead.” Lin, 238 F.3d at
246. Therefore, it erroneously rejected the                       V. CONCLUSION


                                                  12
        While we have noted our
difficulties with the decisions of both the
IJ and the BIA, as we explained above,
“the overriding consideration here must be
the extraordinarily deferential standard
m a n d a t e d b y E l i a s -Z a c a r i a s.”
Abdulrahman, 330 F.3d at 598. After
reviewing the administrative record we
find that the record does not compel a
contrary credibility finding here. The
inescapable conclusion that we must draw
is that there are unimpeachable bases on
which to arrive at the conclusion that the IJ
and BIA did that Chen was not credible
and thus he was not entitled to asylum or
the withholding of removal. For all the
reasons we have stated, we will deny the
petition for review.




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