Cheng Bin Chen v. Attorney General United States , 635 F. App'x 54 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-1109
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CHENG BIN CHEN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Decision
and Order of the Board of Immigration Appeals
(BIA No. A 206-622-147)
Immigration Judge: Walter A. Durling
______________
Submitted under Third Circuit LAR 34.1(a)
December 11, 2015
BEFORE: FUENTES, CHAGARES, and GREENBERG, Circuit Judges
(Filed: December 15, 2015)
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OPINION*
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GREENBERG, Circuit Judge.
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*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
This matter comes on before this Court on a petition for review of a decision and
order of the Board of Immigration Appeals (“Board”) entered December 17, 2014,
dismissing an appeal from a decision of an immigration judge (“IJ”) finding the
petitioner, Chen Bin Chen, removable and denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”).
We will deny the petition for review.
Chen is a single 30-year old male citizen of the People’s Republic of China. Since
2012 Chen has sought to enter the United States both legally and illegally. He initially
sought to enter legally by obtaining a student visa. Between 2012 and 2014 he twice
applied for student visas to attend Tacoma Community College in Washington State and
once applied for a student visa to attend the State University of New York. All of those
attempts were unsuccessful. He claims that at about the time of the third rejection of his
applications for a student visa, the Chinese government began mistreating him because of
his involvement with an unsanctioned underground Chinese Christian church.
Obviously Chen did not regard the rejections of his applications for a student visa
as final impediments to coming to the United States because, with the assistance of a
smuggler, he illegally entered the United States from Mexico on or about February 28,
2014, without inspection or parole. The Department of Homeland Security (“DHS”)
reacted to Chen’s illegal entry on March 27, 2014, by serving him with a notice to
appear, a procedure that initiated removal proceedings. At a hearing on the removal
proceedings on April 7, 2014, Chen, who was represented by counsel, admitted that he
was removable but informed the IJ that he was seeking asylum, withholding of removal,
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and protection under the CAT. When the hearing resumed on April 28, 2014, Chen filed
his application for the above relief. In his application he asserted that in January 2014,
the Chinese government began mistreating him because of his participation in the
underground Christian church.
At the outset of the resumed hearing on July 30, 2014, the IJ admitted into
evidence documents that the DHS supplied including the United States State
Department’s country reports on human rights in China from 2012 and 2013. Chen
testified at the hearing that a friend suggested that he attend a Christian religious meeting
or service and that he had done so on January 5, 2014. The following day, January 6,
2014, he attended another Christian meeting at a parishioner’s home, but the police
interrupted the meeting and arrested 12 attendees including Chen.
Chen claims that the police took him to a local jail and held him for three days,
beating him with fists and batons so severely as to leave bruises. During the three-day
detention, the police interrogated Chen but he refused to give them the names of other
church members. After three days the police released him to his parents with an order for
him to report every three days to a police station to ensure that he was not attending a
non-sanctioned church.
Chen testified that his father made a substantial payment to obtain his release from
police custody and to a smuggler to get him out of China. He also testified that he would
be immediately arrested and jailed if he returned to China because he had left China
illegally and did not obey the order to report to the police station every three days.
Further, Chen testified that his family told him that on May 2, 2014, police officers
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visited his family home and informed his family that they would arrest Chen if he
returned to China.
Chen claimed that after he was released he saw a doctor in China on January 9,
2014, at which time an x-ray was taken. But he did not have a copy of the x-ray. Though
Chen claimed to be a Christian, he did not provide any documents to the IJ during the
hearing to support the claim and he did not offer any documents proving that he ever
attended any church meetings in China. In fact, he did not produce documents to support
any of his testimony. It is significant that Chen had an aunt who lived in New York but
he did not call her to testify on his behalf even though she could have supported his
claims, though only on a hearsay basis.
The IJ had little problem with the case. On July 30, 2014, the IJ rejected Chen’s
claim for asylum and other relief, concluded that Chen was removable, and, ordered Chen
removed to China. The IJ concluded that Chen’s claim was implausible and he found
that Chen was not credible and that he failed to corroborate his claims adequately. The IJ
stated, “[w]ell, to put it mildly, this Court thinks this whole case is totally bogus.” A.R.
71. Though the IJ could not say that the incidents that Chen described did not occur, he
said that “when an individual[’s] testimony is vague in certain aspects, or the claim itself
begs for corroboration, corroboration should be produced.” A.R. 72. The IJ observed
that Chen was unable to answer numerous questions, prompting the IJ to conclude that
Chen “did not know all those questions or conveniently forgot.” A.R. 72. In this regard,
the IJ noted that Chen had not obtained anything to corroborate what the IJ called his
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“convenient” claim, including any type of arrest or police report, or letters from church
officials or family indicating that he had attended services in China. Id.
The IJ found inconsistencies between Chen’s testimony, where he claimed he
would be killed if returned to China, and his asylum application, where he indicated that
he would be jailed if returned. A.R. 72-73. The IJ also made the obvious finding that
Chen’s inability to obtain student visas affected his credibility. A.R. 74-75. In this
regard, we cannot avoid recognizing that Chen contends that he became interested in
Christianity only after he failed to obtain a student visa to come to the United States.
On August 27, 2014, Chen appealed from the IJ’s decision to the Board. On
December 17, 2014, the Board dismissed Chen’s appeal, specifically agreeing with the IJ
that Chen did not provide adequate corroboration of his testimony to meet his burden of
proof for the granting of asylum or withholding of removal. In reaching its result, the
Board cited our decisions in Quao Lin Dong v. Att’y Gen., 638 F.3d 223, 229 n.3 (3d Cir.
2011), and Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001), and noted that, in
accordance with INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii), “where the trier of
fact determines that the applicant should provide evidence that corroborates otherwise
credible testimony, such evidence must be provided unless the applicant does not have
the evidence and cannot reasonably obtain the evidence.” A.R. 3. The Board observed
that the only corroborative evidence Chen attempted to obtain through his parents in
China were the x-rays from the hospital, but his parents had been told that he had to
request the x-rays in person. A.R. 3. The Board concluded that Chen made “no other
efforts to obtain any corroborative evidence,” such as requesting letters from his parents,
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even though he had been in touch with them. A.R. 3-4. The Board noted that Chen’s
parents could have verified parts of his claims inasmuch as Chen asserted that his father
had made a payment to get him out of jail and that the police allegedly spoke with his
parents in their home while he was in police custody. A.R. 4. The Board also observed
that Chen did not ask his aunt, who lived in New York, and who allegedly was aware of
his problems in China, to testify or even submit a letter on his behalf. A.R. 4. Finally,
the Board agreed with the IJ’s conclusion that Chen had failed to demonstrate that it was
more likely than not that he would be tortured in China by or with the acquiescence of
government officials if he returned to China. Inasmuch as Chen did not have
corroboration for his case, the Board did not assess his credibility. Chen then filed the
petition for review now before us.
The Board had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and we have jurisdiction
under 8 U.S.C. § 1252. Venue is proper in this Court as the removal proceedings were
completed in York, Pennsylvania. See 8 U.S.C. § 1252(b)(2). Chen concedes that if, as
here, the Board issues its own decision on the merits we review its findings of fact on a
substantial evidence basis, but he points out that we review its legal conclusions de novo.
The distinction between factual findings and legal conclusions is not material in this case
because under any standard of review we would deny Chen’s petition for review.
In considering this case, it is clear there is substantial evidence supporting the
Board’s finding that Chen did not satisfy his burden to obtain relief because he did not
provide adequate, or, indeed, any corroborating evidence to support his claims. Chen
alleged that he had been mistreated in China and that his parents had bailed him out of
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jail. He also alleged that in May 2014 his parents had informed him via telephone that
the police were looking for him in China, and that his aunt in New York knew of his
experiences in China. Yet he made no effort to obtain evidence corroborating his claims
of mistreatment.
The Board did not err when it denied Chen relief because he did not corroborate
his testimony. Even if Chen had been credible, in the circumstances of this case he
needed to supply corroborating evidence to meet his burden of proof. See Chen v.
Gonzales, 434 F.3d 212, 217-18 (3d Cir. 2005). If it is reasonable to expect that an
applicant would provide corroboration and if the applicant is given an opportunity to
explain its absence, failure to corroborate may serve as the basis for the denial of a claim.
Mulanga v. Ashcroft, 349 F.3d 123, 133-34 (3d Cir. 2003). With respect to corroboration
we have explained that the IJ must engage in the following three-part inquiry: “(1) an
identification of facts for which it is reasonable to expect corroboration; (2) an inquiry as
to whether the applicant has provided information corroborating the relevant facts; and if
he or she has not; (3) an analysis of whether the applicant has adequately explained his or
her failure to do so.” Abdulai, 239 F.3d at 554 (citation and internal quotation marks
omitted).
Chen does not deny that the IJ explained what corroboration he expected. But
when Chen was asked whether he had obtained corroboration, he acknowledged that he
had not done so, attributing that failure to the circumstance that he was in detention. Yet
we do not understand why he could not have obtained an affidavit from his aunt in New
York, whom he had told about the incident. Though his aunt’s affidavit would have been
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of limited help as she did not have personal knowledge of what had happened to Chen in
China, still her affidavit would have had at least some value because it would have
demonstrated that Chen had made his claims before the hearing in these proceedings.
Moreover, Chen also could have asked his aunt to help him obtain an affidavit from his
parents, who could have corroborated the fact that they paid to have him released from
custody, took him to the hospital for treatment, and attempted to obtain Chen’s x-rays.
Consequently, Chen did not adequately explain why he did not have corroborating
evidence. Overall, we can understand why the IJ rejected Chen’s claim for relief.
Indeed, the timing of the self-created circumstances – i.e., his sudden interest in
Christianity, on which he bases his claims for asylum and other relief – coming
immediately after his failure to obtain a student visa suggests that the IJ was correct when
he determined that Chen’s claim for asylum and other relief was meritless.
For the foregoing reasons we will deny the petition for review of the decision and
order of the Board of December 17, 2014.
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