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


5-3-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4506




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                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 02-4506
                                  ________________

                                  YAN RONG CHEN,
                                                             Petitioner

                                            v.

                       JOHN ASHCROFT, Attorney General
                            of United States of America
                     ____________________________________

                           On Review of a Decision of the
                           Board of Immigration Appeals
                             (Agency No. A77 309 323)
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 15, 2003

            BEFORE: ROTH, McKEE, and ROSENN, CIRCUIT JUDGES

                                 (Filed May 3, 2004)
                              _______________________

                                     OPINION
                              _______________________


ROTH, Circuit Judge

       Yan Rong Chen, a native and citizen of the People’s Republic of China,

petitions for review of a final order of the Board of Immigration Appeals (BIA). For

the reasons that follow, we will deny the petition.
                                             I.

        On May 19, 2000, Chen entered the United States with a fraudulent passport.

 The Immigration and Naturalization Service (INS)1 initiated removal proceedings

 against Chen, charging her as inadmissible pursuant to Section 212(a)(6)(C)(i) of the

 Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who

 sought admission by fraud or willful misrepresentation, and under Section

 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in

 possession of a valid entry document. She conceded removability but requested

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

 Against Torture. Chen’s application was based on her alleged resistance to China’s

 population control measures.

        The Immigration Judge (IJ) denied all relief on the basis of an adverse

 credibility determination, finding that Chen did not testify coherently and failed to

 “produce any objective evidence to show that the birth control policy in China requires

 unmarried women over the age of 20 to submit to quarterly examinations as she




   1
   We recognize, of course, that the Department of Homeland Security recently took
over the functions of the former INS. For the sake of convenience, and because the INS
was the actor at most times relevant to this appeal, we continue here to refer to the INS.

                                             2
 alleged.” 2 Chen appealed, the BIA affirmed, and Chen filed a timely petition for

 review.

                                            II.

        To be granted asylum as a refugee, an applicant must establish that she is unable

 to return her homeland “because of persecution or a well-founded fear of persecution

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

 political opinion.” 8 U.S.C. § 1101(a)(42). Whether an applicant has demonstrated

 “persecution” or a “well-founded fear of persecution” is a factual determination

 reviewed under the substantial evidence standard. Abdille v. Ashcroft, 242 F.3d 477,

 483 (3d Cir.2001). Under this standard, we will uphold findings of fact to the extent

 they are “supported by reasonable, substantial, and probative evidence on the record

 considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998).

 Similarly, adverse credibility determinations are also reviewed for substantial

 evidence, see Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (en banc), and must be

 upheld unless “any reasonable adjudicator would be compelled to conclude to the

 contrary.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (citing INA §

 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B)) (internal quotation omitted). Only



   2
     Alternatively, the IJ found that Chen was not persecuted on account of her
“resistance to a coercive population control program.” 8 U.S.C. § 1101(a)(42)(B). We
will not review this determination because, as explained below, we conclude that the IJ’s
adverse credibility determination is supported by substantial evidence.

                                             3
 discrepancies that “involve the heart of the asylum claim” can support an adverse

 credibility finding. Id. “[M]inor inconsistencies” do not provide an adequate basis for

 an adverse credibility finding. Id.

                                            III.

        We have reviewed the record in its entirety and find substantial evidence to

 support the adverse credibility determination.3 As the IJ noted, Chen testified

 inconsistently concerning why birth control officials demanded that she submit to a

 pregnancy examination. Chen initially maintained that a new regulation required that

 all females over 20 years old undergo a check-up every three months to determine if

 they are pregnant. See Administrative Record at 73, 262. On cross-examination,

 however, Chen indicated for the first time that the birth control officials may have

 suspected that she was pregnant because she had a boyfriend. Id. at 97-98. Moreover,

 Chen’s credibility is undermined by discrepancies between her asylum application and

 her testimony. For example, in her application, Chen stated that she was notified via

 telephone on January 1, 2000, of her need to report for a physical examination. Id. at

 262. Chen testified, however, that her mother received written notice of the

 examination on January 10, 2000. Id. at 71-72. In addition, Chen testified that her

 parents were detained for two days after she failed to report for a second scheduled



   3
    As the BIA affirmed without opinion, we will review the decision of the IJ. Abdulai
v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir.2001)

                                             4
examination, id. at 83-84; this fact was omitted from her application. These

inconsistencies go to the heart of Chen’s asylum claim and would not compel any

reasonable factfinder to find that her claims were credible.

                                           IV.

       For the foregoing reasons, we conclude that the IJ’s adverse credibility

determination is supported by reasonable, substantial, and probative evidence on the

record as a whole. Accordingly, we will deny Chen’s petition for review.




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