Chen v. Holder, Jr. , 457 F. App'x 1 ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1391
HE CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
Gang Zhou on brief for petitioner.
Kristen Giuffreda Chapman, Trial Attorney, Office of
Immigration Litigation, U.S. Department of Justice, Tony West,
Assistant Attorney General, Civil Division, and Shelley R. Goad,
Assistant Director, on brief for respondent.
February 28, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LYNCH, Chief Judge. He Chen, a native and citizen of
China, petitions for review of a 2011 decision by the Board of
Immigration Appeals (BIA), denying him relief from removal. The
BIA affirmed the Immigration Judge's (IJ) denial of asylum and
withholding of removal. Chen illegally entered the United States
near Hidalgo, Texas, on or about June 22, 2006. After being served
with a Notice to Appear on January 9, 2008, Chen conceded
removability and sought political asylum and withholding of
removal. See 8 U.S.C. §§ 1158, 1231(b)(3).
At a merits hearing before the IJ, Chen claimed that he
would be subject to involuntary sterilization at the hands of the
government if he were removed to China. A person who demonstrates
that he or she "has been forced to . . . undergo involuntary
sterilization . . . shall be deemed to have been persecuted on
account of political opinion, and a person who has a well founded
fear that he or she will be forced to undergo such a procedure
. . . shall be deemed to have a well founded fear of persecution on
account of political opinion" and will thereby qualify for asylum
relief. Id. §§ 1101(a)(42), 1158(b)(1)(A). The IJ heard Chen's
testimony and found that Chen was not credible. The BIA upheld
that finding.
When the BIA adopts and affirms the IJ's ruling but also
discusses some of the bases for the IJ's opinion, we review both
the IJ's and BIA's opinions. Weng v. Holder, 593 F.3d 66, 71 (1st
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Cir. 2010). We also review the IJ's credibility determination when
the BIA adopts it, id., and will uphold a credibility determination
under the familiar substantial evidence standard so long as "the IJ
has given reasoned consideration to the evidence and has provided
a cogent explanation for his finding," Muñoz-Monsalve v. Mukasey,
551 F.3d 1, 5 (1st Cir. 2008); see also 8 U.S.C. § 1252(b)(4)(B).
The decision of the IJ here meets that test. It sets out
conflicts between Chen's testimony and (1) Chen's own written
statement attached to his asylum application, (2) a statement Chen
made during his earlier asylum interview, and (3) a written
statement submitted by Chen's wife.
Chen testified that family planning officials in China
forced his wife to undergo an abortion because she had married Chen
when she was underage and the marriage had not been registered, as
required. A few days later, Chen testified, family planning
officials came to his home while he was there to force his wife to
have an IUD inserted, and he told them directly that he would not
let her go for the procedure.1 Chen claims that this direct
confrontation with the family planning officials was what led to
1
The transcript of Chen's testimony on this point reads as
follows: "They came to my house when I was still at home, they
notified me, when they came to my house, and I didn't want her to,
and I had directly told me so." Reading this statement in the
context of the rest of Chen's testimony, we assume there is a typo
in the last clause and that it should read: "and I had directly
told them so."
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their later threats -- made after Chen came to the United States
and related to him by his family -- to forcibly sterilize him.
Chen's written declaration attached to his asylum
application says something different. It does not mention a direct
confrontation between Chen and the family planning officials.
Instead, he stated that he told his wife not to report for the IUD
procedure. And his wife's statement is also different. Chen's
wife said the family planning officials notified her that she would
have to have an IUD inserted, and her family asked the government
not to require the procedure. She does not say that her husband
confronted the family planning officials. Finally, Chen's
statement during his asylum interview made no mention of a
confrontation between himself and the family planning officials
over the IUD.
That is enough, but there is more. Chen's wife's
statement makes it clear that Chen had already departed by the time
the family planning officials came to Chen's wife's home to notify
her that she was required to have an IUD inserted. It was
impossible for Chen to have confronted the officials at that time.
The IJ presented Chen with these discrepancies, but Chen
offered no satisfactory explanation for the inconsistencies, just
repeating that the confrontation with the officials in fact took
place as he described. Based on these prior inconsistent
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statements, the IJ found Chen to be not credible and an unreliable
witness.
The IJ also considered the plausibility of Chen's
account. Chen testified that after he and his wife discovered that
she was pregnant in August 2005, she went into hiding. Chen
further testified that he visited her in January 2006 and,
unbeknownst to him, was followed by family planning officials to
her hiding place. The IJ found that it was implausible that the
officials "had an around the clock surveillance" of Chen in order
to discover his wife's hiding place.
In addition, the IJ further concluded that, any
credibility determination aside, Chen had not been a victim of past
persecution. Chen admitted that he was never arrested, detained,
or harmed while in China. The IJ cited a decision of the Attorney
General holding that the spouse of a person who has been physically
subjected to a forced abortion is not per se entitled to refugee
status. Matter of J-S-, 24 I. & N. Dec. 520, 520 (A.G. 2008); see
also Jiao Hua Huang v. Holder, 620 F.3d 33, 36 (1st Cir. 2010).
Under this rule, Chen could not qualify for asylum based on his
wife's forced abortion.
Finally, even assuming that Chen's testimony was
credible, the IJ found that Chen could avoid any threatened
sterilization by consenting to the IUD insertion, which the IJ
stated "is not necessarily a procedure designed to amount to
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persecution on account of the Chinese family planning policy."
Chen's claimed fear of persecution would not be well founded.
Under the REAL ID Act of 2005,2 the agency may base its
credibility finding on the "totality of the circumstances, and all
relevant factors," including the "inherent plausibility" and
"consistency" of the evidence, "without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii); see also id.§ 1231(b)(3)(C).
A claim of persecution that lacks veracity cannot satisfy
the burdens of proof and persuasion necessary to establish
eligibility for asylum and withholding of removal. Id.
§§ 1158(b)(1)(B)(ii), 1231(b)(3)(C). Substantial evidence supports
the denial of both types of relief.
Accordingly, we deny the petition for review.
2
The provisions of the REAL ID Act of 2005 are applicable to
Chen because he submitted his application for withholding of
removal after the May 11, 2005, effective date of the Act. See 8
U.S.C. § 1158 note (Effective Date of 2005 Amendment).
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