                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4610




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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 05-4610


                                 DA XIANG CHEN;
                                   DA LI CHEN,

                                     Petitioners

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                     Respondent



                        On Petition for Review of a Decision
                        of the Board of Immigration Appeals
                       (BIA Nos. A95-461-890, A95-467-797)
                          Immigration Judge: Miriam Mills


                     Submitted under Third Circuit LAR 34.1(a)
                                  May 22, 2007

          BEFORE: BARRY, CHAGARES, and TASHIMA,* Circuit Judges

                                (Filed July 10, 2007)


                             OPINION OF THE COURT




  *
    The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
CHAGARES, Circuit Judge.

       Da Xiang Chen and his older brother, Da Li Chen, are natives and citizens of

China. They applied for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”), claiming that if they return to China they will be persecuted

and tortured because they are known followers of Falun Gong. The Immigration Judge

(“IJ”) denied their applications. They petition this Court for review of a final order of the

Board of Immigration Appeals (“BIA”) affirming the IJ’s decision. Because we conclude

that the IJ’s decision is supported by substantial evidence, we will deny the petition.

                                              I.

       As we write for the parties only, our summary of the facts is brief.

       Da Xiang Chen is the lead petitioner. He arrived in the United States on May 28,

2001, and his brother arrived in July of 2001. Both petitioners applied for asylum in early

May of 2002.

       Da Xiang Chen and Da Li Chen testified before the IJ that they began practicing

Falun Gong in 1999. They separately stated that village cadres came to petitioners’ house

in March of 2000, and arrested their mother for being a local leader of Falun Gong. Da

Xiang Chen stated before the IJ that the family’s house was searched on the day his

mother was arrested. He testified that the cadres searched so thoroughly that the house

was a mess when they were done. In contrast, Da Li Chen stated that cadres did not

search the family’s house. Once informed that his brother testified a search occurred, Da

Li Chen explained that after his mother was apprehended, Da Li Chen immediately went

                                              2
to inform his father, suggesting a search could have occurred after he left. When asked

about the condition of the house when he eventually returned home, Da Li Chen

responded that, when he returned, he was nervous and he did not pay attention to what his

brother was saying. Da Li Chen later stated that he waited until his mother left with the

cadres before going to get his father. Affidavits from petitioners, submitted in support of

their asylum applications, did not mention that cadres searched the family’s house at all.

       According to petitioners’ testimony, authorities discovered Da Xiang Chen

followed Falun Gong when he was caught putting up Falun Gong posters with his brother

and a friend in January of 2001. Police officers arrested Da Xiang Chen and the friend,

but Da Li Chen escaped capture.1 Da Xiang Chen testified that he was detained for two

months, and during that time he was beaten and made to watch video tapes for ten hours

every day that described Falun Gong as an evil cult. Upon his release, he was ordered to

return weekly to the police to report his activities. Da Xiang Chen did not comply with

this order. He went into hiding and was soon joined by his brother.

       Petitioners testified that their parents arranged for their departure from China by

paying a “snakehead,” a professional smuggler, to take petitioners to the United States.

Da Xiang Chen testified that he had a passport and left with legitimate documents. He

told the IJ he gave his passport to the snakehead after he arrived in the United States. He



   1
    Petitioners’ brief indicates that both Da Xiang Chen and Da Li Chen were arrested
and detained for two months, Pet. Br. 6, but petitioners consistently testified before the IJ
and in their asylum applications that only Da Xiang Chen was arrested.
                                              3
further explained that the passport was returned to him after the snakehead gave it to his

mother in China, and she gave it to his cousin, who traveled to the United States and gave

it to Da Xiang Chen. Petitioners submitted to the IJ a letter from their mother which

explains how petitioners’ mother gave documents to the petitioners’ cousin, who

delivered the documents to petitioners in the United States. The letter does not

specifically mention Da Xiang Chen’s passport.

       Da Xiang Chen’s passport has a stamp indicating departure from Hong Kong in

June of 2001, but Da Xiang Chen told the IJ that he had not left the United States since he

arrived in May of 2001.

       The IJ denied petitioners’ claims in an oral decision dated May 10, 2004, finding

several inconsistencies with their testimony and determining petitioners were not credible

for the reasons discussed below. Petitioners appealed. The BIA affirmed the IJ’s

decision without opinion on September 19, 2005. Petitioners thereafter filed this petition

for review.

                                            II.

       In order to receive a grant of asylum, applicants have to demonstrate to the BIA

that they have a well-founded fear of persecution on account of their religion or one of the

other specified grounds listed in 8 U.S.C. § 1101(a)(42)(A). See Zubeda v. Ashcroft, 333

F.3d 463, 469-70 (3d Cir. 2003). Applicants face a more difficult burden to establish that

they are entitled to withholding of removal because they need to show to the BIA that,

more likely than not, they will suffer persecution if they are removed. See id. And

                                             4
similarly, for the BIA to grant relief under CAT, applicants need to establish that, more

likely than not, they will be tortured. See id. at 471-72.

       When the BIA adopts an IJ’s opinion, we review the opinion of the IJ. Zhang v.

Gonzales, 405 F.3d 150, 155 (3d Cir. 2005). Our review of the IJ’s decision is extremely

deferential. “If a reasonable fact finder could make a particular finding on the

administrative record, then the finding is supported by substantial evidence” and we will

affirm. See Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003). We will reverse only if

we conclude that the record “compels” that we do so. INS v. Elias-Zacarias, 502 U.S.

478, 481 n.1 (1992) (emphasis removed).

                                             III.

       A thorough review of the record leads us to conclude that substantial evidence

supports the IJ’s decision. Da Xiang Chen’s testimony at the hearing before the IJ was

inconsistent with his statement at an asylum interview regarding the timing of his

mother’s arrest for being a Falun Gong follower.2 At an asylum interview in August of

2002, he stated that his mother was arrested after Da Xiang Chen himself was arrested in

January of 2001. At the hearing before the IJ and in his affidavit, Da Xiang Chen stated



   2
     We have previously held that inconsistencies between a statement given at an airport
interview and testimony before an IJ cannot alone justify an adverse credibility finding.
See Balasubramanrim v. I.N.S., 143 F.3d 157, 164 (3d Cir. 1998). Da Xiang Chen’s
asylum interview, however, was conducted months after his arrival, and petitioners do not
point to any coercive or stressful circumstances of the interview which would make his
statements unreliable. More importantly, the inconsistency evident in the interview is not
the only inconsistency on which the IJ relied.
                                              5
that his mother was arrested in March of 2000, prior to his own January 2001 arrest. In

addition, the IJ identified inconsistent testimony regarding whether the cadres searched

the Chen family home on the day petitioners’ mother was arrested. Da Li Chen testified

that cadres did not search his family’s home on that day, but Da Xiang Chen testified that

the village cadres made a mess of the house as a result of their search. When presented

with his brother’s testimony, Da Li Chen indicated that he did not see cadres conduct the

search because he left to inform his father that his mother was arrested, implying that

cadres were still in his house when he left. He later contradicted this implication, stating

he went to find his father after the cadres had left the house with his mother.

       Petitioners’ request for relief is further undermined by evidence that Da Xiang

Chen traveled back to China after his arrival in the United States. Da Xiang Chen

indicated that the stamp in his passport signifying entry in Hong Kong must have

occurred while his passport was in the control of the snakehead. The letter from

petitioners’ mother fails to identify Da Xiang Chen’s passport as one of the items

transported back to the United States via petitioners’ cousin, and so the IJ could

reasonably wonder how Da Xiang Chen was reunited with his passport if it indeed was

not in his possession when it was used to enter Hong Kong. Because we are satisfied that

these inconsistencies in the record provide substantial evidence supporting the IJ’s

opinion, we do not need to discuss the other inconsistencies identified by the IJ.3


   3
    In addition to the reasons mentioned above for denying petitioners’ relief, the IJ
concluded several aspects of petitioners’ testimony were inconsistent and implausible.

                                              6
                                            IV.

       For the foregoing reasons, we will deny the petition.




First, the IJ found it implausible that Da Xiang Chen would be able to travel to the United
States on legitimate travel documents if he was wanted by authorities for failing to
comply with a condition of his release. Second, the IJ found it implausible that village
cadres would have searched the Chen home in March of 2000 and would not have
discovered the Falun Gong book and tape that Da Xiang Chen claimed was hidden under
a bed. Third, the IJ highlighted inconsistent testimony by the petitioners regarding
whether the Chen family had a telephone in 2001. Fourth, the IJ found inconsistent
testimony regarding whether petitioners’ mother suffered harm since petitioners’
departure from China and whether their mother was living in the same house as she was
in 2000.


                                             7
