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


1-28-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4600




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"Chen v. Atty Gen USA" (2008). 2008 Decisions. Paper 1702.
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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 06-4600



                               ZHEN FA CHEN,

                                                Petitioner

                                       v.

              ATTORNEY GENERAL OF THE UNITED STATES,

                                                Respondent

                           _____________________

                   On Petition for Review of an Order of the
                        Board of Immigration Appeals
                          (Agency No. A98-593-933)
                   Immigration Judge: Hon. Henry S. Dogin
                        ________________________

                  Submitted under to Third Circuit LAR 34.1(a)
                               October 12, 2007


             Before: BARRY, CHAGARES and ROTH, Circuit Judges

                        (Opinion filed: January 28, 2008)
                                 ___________

                                 OPINION
                                 ___________

PER CURIAM
         Zhen Fa Chen petitions for review of the decision of the Board of Immigration

Appeals (BIA) denying his application for asylum, withholding of removal, and relief under

the Convention Against Torture. For the following reasons, we will deny his petition.

         In December 2004, Chen, a native of China, was charged as removable for entering

the United States without inspection. He conceded removability and applied for asylum,

withholding of removal, and relief under the Convention Against Torture. He contended that

he faced persecution under China’s family planning policy. After a hearing, an Immigration

Judge (IJ) found Chen incredible, denied relief, and ordered him removed to China. Chen

appealed to the BIA and filed a motion to remand the matter to the IJ to consider newly

submitted statements from his aunt and his wife’s sister. The BIA adopted and affirmed the

IJ’s decision, and it denied Chen’s motion to remand. Chen then filed a timely petition for

review, and we have jurisdiction under 8 U.S.C. § 1252.

         The IJ denied relief because he found that Chen was not credible. That determination

is a factual finding subject to review under the substantial evidence standard. We must

uphold the adverse credibility finding unless any reasonable adjudicator would be compelled

to conclude to the contrary. Fiadjoe v. Attorney General, 411 F.3d 135, 153 (3d Cir. 2005).

The credibility finding must be grounded in the record and based on inconsistencies or



improbabilities that are crucial to the claim. Zheng v. Gonzales, 417 F. 3d 379, 381 (3d Cir.

2005).

         As the details of Chen’s claims are well-known to the parties and set forth in the IJ’s

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opinion, we need not discuss them at length. According to Chen, in October 1996, when his

wife was three months pregnant, she was forcibly aborted, and an intrauterine device (IUD)

was inserted. After Chen and his wife had the IUD removed by a private doctor, she became

pregnant in September 2004 and went into hiding. Chen stated that she was forcibly aborted

again on October 26, 2004.

       The IJ concluded that Chen was not credible based on several inconsistencies. Chen

was confronted with the fact that an IUD booklet indicated that his wife’s IUD was in place

in September 2004. He explained that his wife’s sister had gone to the exam and posed as

his wife. The IJ asked why this was not mentioned in Chen’s asylum application or his

wife’s statement. Chen said that his wife was afraid to mention it. This inconsistency is

crucial to the claim because if Chen’s wife had gone to the exam in September 2004, she

could not have been pregnant and forcibly aborted in October. Chen also could not explain

why the birth control officials would be looking for his wife in October 2004 if they thought

they had just examined her in September.

       Chen also testified at the hearing that his wife did not know for ten to twenty days

after the October 2004 abortion that another IUD had been inserted. However, in his asylum

application, Chen said that the birth control officials told them in the hospital right after the

abortion that if they tried to remove the IUD again, his wife would be sterilized. Chen could

not explain this inconsistency.1      These inconsistencies also support the IJ’s adverse


   1
    The IJ also noted that the translation of the medical record concerning the October
2004 abortion was not a complete document.

                                               3
credibility finding.

       The IJ’s adverse credibility finding was based on specific reasons supported by the

record, and Chen has not shown that the record compels a finding that he was credible and

entitled to relief. Zheng, 417 F.3d at 383. Accordingly, we will deny the petition for review.




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