                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3044




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                              Nos. 08-3044 and 08-3045
                                    (Consolidated)
                                     ___________

                         XIU YUN CHEN and YOU CHEN
                                    Petitioners

                                          v.

             THE ATTORNEY GENERAL OF THE UNITED STATES,
                                   Respondent
                   ____________________________________

                        On Petitions for Review of an Order
                        of the Board of Immigration Appeals
                     Agency Nos. A97 753 222 and A97 753 223
                      Immigration Judge: Elizabeth A. Kessler
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 11, 2009

             Before: MCKEE, HARDIMAN and COWEN, Circuit Judges

                            (Opinion filed : May 22, 2009)

                                    ___________

                                     OPINION
                                    ___________

PER CURIAM

      Xiu Yun Chen and You Chen have filed petitions for review of an order of the

Board of Immigration Appeals, which dismissed their appeal from an Immigration
Judge’s (IJ’s) final removal order. We will deny the petitions for review.

       Because the parties are familiar with the facts, we will recount them in summary

fashion. The Chens, a married couple from China, entered the United States without

inspection in October 2002. Xiu Yun Chen filed an asylum application in October 2003,

based on her allegation that she had been persecuted in China.1 Chen testified that she

and her husband had their first child in 1994. Thereafter, Chinese birth control cadres

required her to use birth control; first, a device implanted in her arm, and later, an IUD.

In early 1999, she had the IUD removed because she wanted to have more children. She

became pregnant in February 1999 and went into hiding at her aunt’s home. In June

1999, police came to her aunt’s home to investigate a nearby robbery. When they saw

Chen, they noted that she was not registered in that area and questioned her about her




   1
     Her husband, You Chen, apparently intended at first only to gain derivative asylum
through his wife’s application, pursuant to 8 U.S.C. § 1158(b)(3)(A). The Government
raised some questions about the timeliness of Xiu Yun Chen’s asylum application, and
noted that if her application were untimely, she would only be eligible for withholding of
removal or protection under the Convention Against Torture (CAT). No doubt because a
spouse may not derive protection through his wife’s successful withholding or CAT
claim, You Chen later filed his own asylum application (which would also be construed
as an application for withholding of removal and protection under the CAT). You Chen
did not, however, include any claims that were different from his wife’s, nor did he allege
that he personally experienced persecution. See Li-Zheng v. Attorney General, No. 07-
2135, __ F.3d __, 2009 WL 398257 (3d Cir. Feb. 19, 2009) (alien not entitled to refugee
status based on persecution of his spouse). We therefore do not construe his application
as an application for asylum in his own right, but rather as an application for derivative
asylum. (The Government ultimately did not pursue its argument that Xiu Yun Chen’s
asylum application was untimely.) References in this opinion to “Chen” are to Xiu Yun
Chen, the lead applicant.

                                              2
then-obvious pregnancy. The police left, but returned one-half hour later with a birth

control officer and a village officer and forced Chen to come with them to the hospital.

At the hospital, she received an injection near her navel and was forced to have an

abortion, although she did not want one. While she was recovering in the hospital,

somebody at the hospital put a piece of paper, a “birth control surgery certificate,” in her

hand. The Chens left for the United States in October 2002, with the help of snakeheads,

because they wanted to have more children. The Chens had a second child in the United

States in December 2003.2

         The IJ made an adverse credibility finding, based on investigatory reports that

concluded that the birth control surgery certificate was invalid. The Forensic Document

Laboratory (FDL) of the United States Department of Homeland Security (DHS) reported

that the certificate was “not genuine,” noting that “[p]hysical evidence establishes that the

document is same source associated with vendor-produced documents seen in unrelated

FDL case submissions.” A.R. 172. In a second investigation, an investigator from the

DHS’s United States Citizenship and Immigration Services whited out Chen’s name on

the certificate and sent a copy of it to Guantou Central Hospital of Lianjiang County to be

verified. The hospital replied that the certificate was fabricated for two reasons: first, the

certificate was signed by a doctor named Lin, Ying, but no doctor by that name worked at

the Department of Gynecology and Obstetrics at the hospital in 1999; second, the



   2
       The Chens’ first son remained behind in China.

                                               3
certificate indicated that the medication “ethacridine” had been used in the procedure, but

it is not necessary to use that medication for abortion operations. A.R. 188. In addition to

finding that Chen was not credible, the IJ also expressed concern about Chen’s failure to

provide corroboration from her aunt (who hid her) and her sister (who advised her to have

her IUD removed). The IJ denied relief, except that she granted the Chens’ application

for voluntary departure.

       On appeal, the BIA found that the IJ’s adverse credibility finding was not clearly

erroneous, based on the investigations that found the abortion certificate not to be

genuine, and found no clear error in the IJ’s conclusion that the certificate was central to

Chen’s claim. The BIA also found no error in the IJ’s finding that Chen failed to

corroborate her claim with evidence that she could reasonably be expected to produce.

The BIA therefore dismissed the Chens’ appeal. The Chens each filed a timely petition

for review, which were consolidated.

       An adverse credibility finding should be upheld to the extent it is supported by

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

should only be reversed if there is evidence so compelling that no reasonable factfinder

could conclude as the IJ did. Caushi v. Attorney General, 436 F.3d 220, 225 (3d Cir.

2006). Any discrepancies must involve the heart of the claim. Id. at 229.3 We hold that



   3
    The provisions of the Real ID Act of 2005 regarding credibility do not apply to cases
such as this one, where the asylum application was filed before the enactment of the Real
ID Act. Real ID Act of 2005, Pub. L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May 11,

                                              4
the adverse credibility finding here is supported by substantial evidence.

         Chen challenges the agency’s determination that she was not credible. In

particular, she assails the reliability of the DHS’s investigative reports concluding that her

birth control surgery certificate was fabricated. She argues that the investigator’s report

was based upon the statements of hospital personnel who had incentive to be less than

forthright, given that an accusation of human rights violations was at issue. She insists

that the certificate she presented was the one that was given to her at the hospital.

         We are not persuaded by Chen’s arguments. First, her assertion that the Chinese

verifying authorities were not candid in their assessments is based on her own

speculation. Second, Chen has not adequately explained why the hospital would hand her

a fake certificate 4 rather than no certificate at all.

         Because the record does not compel us to find that Chen was credible, we do not

reach the issue of whether the IJ properly expected corroboration of her claim. For the

foregoing reasons, we will deny the petitions for review.




2005).
   4
      Chen speculates in her brief that the hospital might have given her a fake certificate
because they did not want it known that they forced her to have an abortion. But see
Chen v. Gonzales, 434 F.3d 212, 219 (3d Cir. 2005) (referring to “the common sense
notion that government officials who force a woman to abort a child would hardly be
likely to issue a certificate attesting to that fact, especially since the Country Report
indicates that use of such force is not official government policy”).
                                              5.
