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


4-24-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1639




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                                                                  NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-1639


                                  WEI MING CHEN,

                                       Petitioner

                                           v.

                         Attorney General of the United States,

                                      Respondent


                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                                (BIA No. A 73 768 106)
                         Immigration Judge: Henry S. Dogin


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 15, 2008

       Before: AMBRO, FISHER, Circuit Judges, and MICHEL,* Chief Circuit Judge

                                (Filed: April 24, 2008)


                             OPINION OF THE COURT




   *
      The Honorable Paul R. Michel, Chief Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation.
MICHEL, Chief Circuit Judge.

       Wei Ming Chen petitions for review of an order for removal. The immigration

judge (“IJ”) rejected Chen’s claims for asylum, withholding of removal, and protection

under the United Nations Convention Against Torture (“CAT”)1 based principally on his

finding that Chen’s testimony and other evidence were not credible. The Board of

Immigration Appeals (“BIA”) sustained the removal on the same basis. Because the IJ’s

adverse credibility determination and other factual findings are supported by substantial

evidence, we will deny the petition.

                                             I.

       Because we write solely for the parties, we recite only those facts relevant to our

analysis. Chen is a native and national of the People’s Republic of China. He first

attempted to enter the United States on May 23, 1995, using a fraudulent Japanese

passport and false name. The Immigration and Naturalization Service (“INS”) 2 detained

Chen and took an airport statement in his native Chinese. In the statement, Chen claimed

to have fled China due to persecution for being Catholic. A deportation order was

entered on July 12, 1995. Chen applied for asylum but later withdrew his application and

accepted deportation.



   1
     United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
   2
     As of March 2003, INS became United States Citizenship and Immigration Services
(“CIS”), an agency within the Department of Homeland Security.

                                             2
       On January 13, 2004, Chen again attempted to enter the United States illegally, this

time at or near Hidalgo, Texas. CIS encountered him on February 16, 2004, at William P.

Hobby Airport in Houston, where Chen presented a fraudulent Korean passport and gave

a false name. He denied having ever entered the United States before. He was again

detained and deportation proceedings were begun. With the assistance of an attorney,

Chen filed an application for asylum on July 14, 2004, claiming that his wife’s pregnancy

had been forcibly aborted in 1993 and that the Chinese government had discovered that

he is a practitioner of Falun Gong.

       After several proceedings to clarify Chen’s actual identity and obtain the correct

interpreter, the IJ ultimately held a hearing on February 2, 2006, where Chen testified in

more detail about the alleged forced abortion and his involvement with Falun Gong. He

testified that although the abortion occurred in 1993, he did not marry his now wife until

September 1997 and that she at times lived with her parents prior to their marriage. He

further admitted that he had in fact illegally entered the United States before and had been

detained, contrary to his prior statements. Immediately following the hearing, the IJ

rendered his decision denying asylum. The IJ stated that he did not find Chen to be

credible in general and that his testimony was specifically not credible as to either the

alleged forced abortion or the alleged future prosecution for practicing Falun Gong. He

did, however, find that Chen demonstrated substantial knowledge of the practices of

Falun Gong.



                                              3
       Chen appealed to the BIA. While the appeal was pending, it was confirmed that

Chen had previously been subject to a deportation order in 1995. CIS terminated the file

from his 2004 entry and elected to reinstate the July 11, 1995 deportation order, so

informing Chen on June 30, 2006. Chen then requested protection from removal due to

fear of persecution and torture. A CIS official took sworn testimony from Chen on July

14, 2006, in a credible fear interview with his attorney present. Chen testified then for the

first time that he was beaten with a baton and assaulted by Chinese police officers in

conjunction with the forced abortion of his then girlfriend. He claimed that his original

1995 entry had been to escape this persecution and torture as well as the forced abortion.

He further testified that his wife and his daughter (born after their legal marriage in 1997)

were harassed due to his implication in Falun Gong activities. Although finding his

claims regarding the forcible abortion and associated beatings not credible, the CIS

official found that Chen’s testimony regarding his Falun Gong involvement warranted

referral to an IJ.

       The IJ held a hearing on October 5, 2006.3 In addition to testifying to the forced

abortion of his girlfriend, his beating at the hands of the police for protesting the abortion,

and his fear of persecution for practicing Falun Gong, Chen for the first time testified that

he was also fined and ultimately beaten and tortured by Chinese authorities in 1996 due to




   3
     The IJ who held the October 5, 2006 hearing and rendered the decision affirmed by
the BIA and appealed here was the same IJ who rendered the February 2, 2006 decision.

                                               4
his unauthorized attempted emigration from China to the United States. He testified that

in addition to being fined twice, he was imprisoned, beaten severely (including with a

hammer), and tortured with electric shock sticks.

       The IJ also had before him two letters from Chen’s wife. The first, dated

September 3, 2006, relates details of the forced abortion in 1993 and states that Chen was

hit on the head by the birth control authorities. It also states that Chen practiced Falun

Gong and that she and her daughter had been harassed and threatened. Regarding his

treatment upon repatriation from the United States in 1996, the letter merely states that

Chen was fined and detained and does not mention any beatings or torture. In the second

letter written later, however, Chen’s wife describes the beatings and torture as well.

       The IJ denied relief under both the Immigration and Nationality Act (“INA”) and

the CAT, finding that Chen was not credible due to inconsistencies in his testimony and

the record evidence. He also found that Chen’s testimony was not adequately

corroborated to remedy the inconsistencies and that Chen had demonstrated a propensity

to lie and withhold the truth.

       Chen appealed to the BIA. The BIA affirmed the IJ’s adverse credibility

determination and discerned no clear error in his findings. Thus, the BIA affirmed the

IJ’s denial of asylum, withholding of removal, and protection under the CAT. Chen then

timely filed the present petition for review. We have jurisdiction under Section 242(a)(1)

of the INA, 8 U.S.C. § 1252(a)(1).



                                              5
                                             II.

       When, as here, the BIA has adopted the reasoning of the IJ in its decision, we

review the decision of the IJ. Kibinda v. Att’y Gen. of the United States, 477 F.3d 113,

118-19 (3d Cir. 2007). The BIA and IJ decisions were based on the IJ’s adverse

credibility determination against Chen, finding that his testimony was not credible. In

reviewing an adverse credibility determination, we look for substantial evidence

supporting the determination. Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004). The IJ

is entitled to consider any and all inconsistencies and omissions in the evidence and

testimony given by an applicant. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xie, 359 F.3d at 243.

       Here, the inconsistencies in Chen’s various statements and testimony were legion.

He has given a myriad of different explanations for his illegal entries into the United

States, continuing to report new and increasingly serious allegations at each stage of his

protracted immigration proceedings. At the time of his first entry, Chen presented a

fraudulent passport and lied about his identity. He then admitted his true identity and

claimed only that he was persecuted for being Catholic.4 He gave no mention of his

girlfriend’s forced abortion nor any scuffle with Chinese authorities.




   4
     Chen argues that the IJ erroneously relied on his 1995 statement given that it was an
airport statement taken, he alleges, while he was under the control of a “smuggler.” We
reject that this constitutes reversible error because the IJ relied on numerous other
inconsistencies that constitute substantial evidence supporting his adverse credibility
determination. We also note that here, the airport statement was taken in Chen’s native
language with the assistance of an interpreter.

                                             6
       Nearly a decade later, Chen again attempted to enter the United States illegally,

again presenting a fraudulent passport and lying about his identity. He also lied about his

previous detainment and deportation. He later admitted his identity and that he had

previously been deported, but he gave a different explanation for his earlier illegal entry,

alleging for the first time that his girlfriend’s pregnancy in 1993 had been forcibly

aborted. He also claimed his Falun Gong activities made him a target for persecution.

But he mentioned no beatings or altercations with Chinese authorities in 1993 or in 1996

when he returned to China after being deported from the United States.

       Only after asylum was denied in February 2006 did Chen claim that he had been

beaten by Chinese authorities when he protested his girlfriend’s abortion in 1993, i.e.,

even before his initial illegal entry. But even then he made no mention of any beating or

detainment in 1996 for unauthorized emigration. Only after the CIS official indicated that

the forced abortion and beating story was not credible did Chen claim that he had been

beaten, detained, and tortured with electric shock sticks upon his return to China in 1996

after deportation. We hold that these numerous inconsistencies establish that the IJ’s

adverse credibility determination was supported by substantial evidence.5




   5
      The government concedes that the IJ erroneously stated that Chen claimed to be a
United States citizen when questioned by CIS in February 2004. We hold, however, that
this error was harmless in light of the numerous other inconsistencies cited and relied on
by the IJ.

                                              7
                                             III.

       Chen argues on appeal that the IJ, despite his adverse credibility determination,

found that (1) his girlfriend was forced to have an abortion in 1993, (2) Chen was

detained and fined in 1996 for leaving the country without authorization, and (3) Chen is

a Falun Gong practitioner. He contends that the IJ’s judgment should have been reversed

because these findings alone establish entitlement to withholding of removal and relief

under the CAT.6 We disagree. We review factual findings and inferences for substantial

evidence. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

                                             1.

       As to the alleged forced abortion in 1993, the IJ clearly found that no marital

relationship, de facto or otherwise, existed between Chen and Ms. Dong in 1993. This

finding is supported by substantial evidence; Chen testified that they did not marry until

1997 and that, although they cohabited, Ms. Dong also lived with her parents some of the

time prior to their marriage. As Chen concedes, case law provides that he cannot claim

protection solely due to forced sterilization or abortion of a girlfriend to whom he is not

married. Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 304-14 (2d Cir. 2007) (en banc);




   6
      To be eligible for withholding of removal under Section 241(b)(3) of the INA, 8
U.S.C. § 1231(b)(3), the applicant must demonstrate that his “life or freedom would be
threatened in [the country of removal] because of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). To qualify
for relief under the CAT, the applicant must demonstrate that it is more likely than not
that he would be tortured if removed. 8 C.F.R. § 208.16(c)(2).

                                              8
Matter of S-L-L-, 24 I&N Dec. 1, 28 (B.I.A. 2006). Although Chen argues other

testimony supports a finding of marriage in 1993, such testimony does not change the fact

that substantial evidence supports the IJ’s contrary finding.7 Chen also argues, without

supporting authority, that the close relationship between Chen and Ms. Dong and the fact

that they eventually did marry are sufficient. We hold that this is contrary to the case law,

and we certainly cannot broaden the rule to encompass the case at bar where no marital

relationship, official or unofficial, was found.

                                              2.

       The IJ did find that the Chinese government detained and fined Chen after his

return to China in 1996, though he found that Chen’s testimony that he was beaten and

tortured as well was not credible. Chen now argues that the large amount of the fines

alone, which exceeds his annual income, constitutes persecution. He cites Li v. Att’y

Gen. of the United States, in which we held that “deliberate imposition of severe

economic disadvantage which threatens a petitioner’s life or freedom may constitute

persecution.” 400 F.3d 157, 168 (3d Cir. 2005) (emphasis added). In Li, the applicant

had not only been assessed an onerous fine but was also effectively blacklisted from all

gainful employment. In contrast, there is no evidence that the fines imposed here, while




   7
     Chen also argues that he can claim persecution based on Ms. Dong’s abortion
because the government held him responsible for resisting the abortion. But the IJ
specifically found that his evidence of that alleged resistance and consequences thereof
was not credible.

                                              9
steep, endangered his family’s ability to support itself. In fact, the evidence indicates that

he and/or his family members paid the fines, and there is no evidence that they caused any

severe or substantial hardship whatsoever. We thus see no error in the IJ’s holding that

these fines did not constitute persecution. On the contrary, it is supported by substantial

evidence.

                                              3.

       Lastly, while the IJ did find that Chen has the knowledge to practice Falun Gong,

he did not find credible Chen’s assertions that he would be persecuted for practicing

Falun Gong upon his return to China. The IJ stressed that Chen had not, in his view, ever

been subjected to persecution for practicing Falun Gong while in China, and he

repeatedly stated that he does not believe that Chen will be persecuted for Falun Gong

practices in the future should he be returned to China. In addition, the same IJ indicated

in his February 2, 2006 decision that he disbelieved Chen’s story about how he had

allegedly been implicated as a Falun Gong practitioner through a fellow adherent who

was arrested.

       While we appreciate that the State Department and courts in other Falun Gong

cases have recognized that China has severely persecuted Falun Gong adherents both for

past and current activities, we cannot say here that substantial evidence does not support

the IJ’s finding that Chen will not be persecuted for Falun Gong practices when he returns

to China. Chen’s familiarity with Falun Gong does support his argument, but his utter



                                              10
lack of credibility in general and, as the IJ found, his lack of credibility as to his past and

future Falun Gong activities in China are fatal.

       Given that the IJ’s adverse credibility determination and relevant factual findings

are supported by substantial evidence, we will deny Chen’s petition for review.




                                               11
