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


3-11-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4379




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4379


                                      HAN PENG,
                                                    Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent


                    PETITION FOR REVIEW OF A DECISION OF
                     THE BOARD OF IMMIGRATION APPEALS
                             Agency No. A96-203-350
                         Immigration Judge: Miriam K. Mills


                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 14, 2008


               Before: BARRY, CHAGARES and ROTH, Circuit Judges

                            (Opinion Filed: March 11, 2008)


                                        OPINION


BARRY, Circuit Judge

      Han Peng petitions for review of an order of the Board of Immigration Appeals

(“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his application for
withholding of removal and relief under the Convention Against Torture (“CAT”). We

will deny the petition for review.

                                              I.

       Because we write only for the parties, familiarity with the facts is presumed, and

we include only those facts that are relevant to our analysis.

       Peng, a citizen of Indonesia, is an ethnic Chinese Christian. He entered the United

States on July 25, 2001 as a nonimmigrant visitor for pleasure, authorized to stay until

January 24, 2002. He overstayed his visa, and on April 3, 2003, the government

commenced removal proceedings. He thereafter applied for withholding of removal and

relief under the CAT, claiming that he fled Indonesia to escape the threat of violence at

the hands of Indonesian Muslims.1

       On May 20, 2005, following a hearing, the IJ denied Peng’s applications, finding

that his testimony was not credible, and that he failed to establish that he would more

likely than not suffer persecution or torture upon returning to Indonesia. On September

14, 2006, the BIA adopted and affirmed the decision of the IJ. Peng filed a timely

petition for review.

                                             II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, “the BIA issues

a summary affirmance under its streamlining regulations, we essentially review the IJ’s


   1
     Peng also filed an application for asylum, but he subsequently withdrew that
application.

                                              2
decision as if it were the decision of the BIA.” Jishiashvili v. Attorney General, 402 F.3d

386, 391 (3d Cir. 2005). We review the IJ’s findings of fact, including credibility

findings, for substantial evidence. See Dia v. Ashcroft, 353 F.3d 228, 247-250 (3d Cir.

2003) (en banc). Under this standard, the IJ’s findings “are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Id. at 247

(citing 8 U.S.C. § 1252(b)(4)(B)).

                                             III.

       To be entitled to withholding of removal, an alien must “establish by a ‘clear

probability’ that his/her life or freedom would be threatened in the proposed country of

deportation. ‘Clear probability’ means that it is ‘more likely than not’ that an alien would

be subject to persecution” on account of race, religion, nationality, membership in a

particular social group, or political opinion. Zubeda v. Ashcroft, 333 F.3d 463, 469-70

(3d Cir. 2003) (internal citations omitted). “An applicant for relief on the merits under

[the CAT] bears the burden of establishing ‘that it is more likely than not that he or she

would be tortured if removed to the proposed country of removal.’” Id. at 471 (citation

omitted).

       The IJ found that Peng’s testimony was not credible, in large part because his

claim that he was attacked by a mob during a May 1998 riot changed considerably over

time. With each new telling – first in an affidavit dated July 3, 2003, then in an affidavit

dated April 12, 2005, and finally at his hearing before the IJ – the severity of the alleged



                                              3
attack increased.2 We agree with the IJ that Peng failed to adequately explain the


   2
       In the July 3, 2003 affidavit, Peng stated:

        When I saw the Native Indonesian mobs attacking the Chinese shops and
        homes, I immediately pulled down the iron gate in front of my shop to try to
        secure my shop. My home/living quarters were in the back of the shop. At
        the time of the attack, I was at home with my wife and two young children.
        I immediately gathered my family to the back of the shop to our living
        quarters. We remained there in hiding for two or three days. (A.R. 285.)

In the April 12, 2005 affidavit, he stated:

        When I saw the Native Indonesian mobs attacking the Chinese shops and
        homes, I tried to protect the entrance into my store. I stood in the doorway
        against the right side of the doorframe with my left hand stretched against
        the left side of the doorframe to prevent the invasion of Indonesian mobs.
        A group of 5-6 Indonesian Muslims approached and tried to push me out of
        their way to get into my store, and one of them cut my left arm with a knife.
        My arm was bleeding badly. After the Indonesian Muslims left, my
        neighbor, Jhonny, helped me to pull down the iron gate in front of my store
        and than [sic] he took me to a Public Health Center, where I was treated for
        my wound. (A.R. 107.)

At his hearing, he testified as follows:

        On May, May 15th – yeah – I opened my shop – it was a air conditioning
        shop – around 10 o’clock or 11 o’clock in the morning. Okay. Then
        around kilometer from my store, the, the Indonesians were, were attacking
        shops – okay – yeah – such as shopping malls, banks. They, they, they
        attacked and they, they looted. Okay. And they were – they did it very
        cruelly if the shop could not be looted. Yeah. They took some gasoline and
        it was, it was poured in from below and, and lit, and lit. And this – then the
        people headed for my store. And when they got to my store, I closed the
        store. I went, I went inside. Okay. And they, and they, they – and those
        people just broke down, broke down the door. And they wanted to, to, to
        steal my goods. And, and I don’t know how many there was. They were
        carrying knives. And, and there was about 20 people. I, I, I tried to stop
        them like this. Okay. And one of them carried – used a knife and he cut me
        like this. Okay. And then I, I, I fell down. I didn’t know what was

                                                4
discrepancies, which are particularly troubling because they relate to the only instance of

harm that Peng claims to have personally suffered. These discrepancies alone – and the IJ

identifies others – are sufficient to support the IJ’s adverse credibility finding. Because

we cannot say that “any reasonable adjudicator would be compelled to conclude to the

contrary,” Dia, 353 F.3d at 247, substantial evidence supports the IJ’s finding that Peng

was not credible.

       Peng claims that the IJ failed to consider documentary evidence that would have

corroborated his testimony because the documents were not properly authenticated

pursuant to 8 C.F.R. § 287.6. According to Peng, he should be permitted an opportunity

to authenticate the documents through other means. This argument lacks merit because

the documents that Peng identifies would not rectify or explain the discrepancies

underlying the IJ’s adverse credibility finding, in particular the finding that Peng

repeatedly changed his account of the alleged attack. Cf. Liu v. Ashcroft, 372 F.3d 529,

533 (3d Cir. 2004) (remanding to the BIA to consider documents that “if found to be

genuine, would corroborate [the petitioner’s] testimony”).

       Finally, Peng criticizes the IJ for failing to adequately consider documentation

relating to country conditions, and claims that the IJ’s failure to consider this evidence

violated his right to due process. “Official as well as unofficial country reports are

probative evidence and can, by themselves, provide sufficient proof to sustain an alien’s


       happening. After that – after, after I was able to get up again, I, I was in the
       hospital and I was – people were helping me. (A.R. 71-72.)

                                              5
burden” of proof under the Immigration and Nationality Act. Zubeda, 333 F.3d at 477.

We have explained that such documentation “is important because the picture it paints

provides a background against which to assess [a petitioner’s] credibility.” Dia, 353 F.3d

at 246. While an IJ “is not required to write an exegesis on every contention,” Zubeda,

333 F.3d at 477 (citation and internal quotation marks omitted), we find it troubling that

the IJ’s decision neglects even to mention the country reports submitted by Peng.

       Notwithstanding the above, however, given the nature of the IJ’s findings, Peng

suffered no prejudice. First, we have held that anti-Chinese violence in Indonesia, such

as that documented in press accounts and country reports, “does not appear to be

sufficiently widespread as to constitute a pattern or practice” of persecution. Lie v.

Ashcroft, 396 F.3d 530, 537-38 (3d Cir. 2005). Therefore, a petitioner, such as Peng,

cannot rely solely on country reports to establish a clear probability that he will be

persecuted, and must present additional credible evidence sufficient to meet his burden of

proof. Peng’s proffered evidence, which the IJ reasonably found to be incredible, is

plainly inadequate.

       Second, the IJ found that Peng was not credible based on discrepancies in his

accounts of the alleged attack. While a finding that an alien’s testimony is implausible

might reasonably be influenced by the “background” painted by country reports, see Dia,

353 F.3d at 249 (“Where an IJ bases an adverse credibility determination in part on

‘implausibility’..., such a conclusion will be properly grounded in the record only if it is



                                              6
made against the background of the general country conditions.”), the discrepancies in

Peng’s story were independent of the IJ’s understanding of country conditions. The

country conditions – regardless of what they were – could not have cured the obvious

problem with Peng’s testimony, i.e. the fact that his story kept changing.

                                            IV.

       For the foregoing reasons, we find that substantial evidence supports the IJ’s

findings that Peng failed to establish that it was more likely than not that he would face

persecution or torture upon returning to Indonesia. Therefore, we will deny the petition

for review.




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