Lu v. Atty Gen USA , 74 F. App'x 237 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-12-2003
Lu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4198
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MEMORANDUM
September 8, 2003
To: Marcia Waldron, Clerk
From: Judge Ambro
Re: Wen Cheng Lu v. Ashcroft, Atty Gen USA
No. 02-4198
Submitted July 31, 2003
Dear Marcy:
Enclosed for filing is a not precedential opinion in the above captioned
matter. A signed original is being placed in the mail to you today.
Sincerely,
Thomas L. Ambro
TLA/ljv
Attachment
cc: Chief Judge Scirica
Judge Rendell
PACRATS
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4198
WEN CHENG LU,
a/k/a Lu Wen Cheng,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
On Appeal from an Order Entered in
The Board of Immigration Appeals
(No. A 73-854-254)
Submitted Under Third Circuit LAR 34.1(a)
July 31, 2003
Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges
(Opinion filed: September 11, 2003)
OPINION
AM BRO, Circuit Judge
The Immigration and Naturalization Service (“INS”) instituted removal
proceedings against petitioner Wen Cheng Lu, who sought asylum, withholding of
deportation and voluntary departure under the Immigration and Nationality Act (“INA”).
Denied relief by the Immigration Judge (“IJ”), Lu appealed to the Board of Immigration
Appeals (“BIA”), which affirmed the IJ’s decision. He subsequently filed this petition for
review, a petition that we dismiss.
I. Facts and Procedural History
Wen Cheng Lu is a eighteen-year-old native and citizen of the People’s Republic
of China. He attempted to enter the United States on September 5, 1997 under a passport
issued in the name of Bing Xing Zheng that contained a lawful permanent resident stamp.
At a secondary inspection point, Lu admitted that the passport did not belong to him. He
told the immigration officer that he had left China because he wanted to make more
money. The INS1 placed Lu in removal proceedings, charging him as an arriving alien
not in possession of valid entry documents and as an arriving alien likely to become a
public charge. INA § 212(a)(7)(A)(i)(I) and (a)(5); 8 U.S.C. § 1227(a)(7)(A)(i)(I) and
(a)(5). Lu applied for asylum, withholding of removal and voluntary departure.
At Lu’s removal hearing, the IJ concluded that the INS had not proven that Lu
would likely become a public charge. Lu, however, admitted that he did not possess valid
1
As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has ceased to exist as an agency within the Department of Justice
and its enforcement functions have been transferred to the Department of Homeland
Security.
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entry documents and the IJ therefore found him removable on that basis. Lu argued that
he was entitled to asylum because, he alleged, both he and his family had suffered
persecution as a result of their violation of and opposition to China’s family planning
policy. In 1979, China enacted a family planning policy designed to limit family sizes.
Lu’s family violated that policy by having more than one child; Lu was, in fact, the first
of four children. He testified that his mother was threatened with forced sterilization. He
further stated that he was not allowed to attend school in his hometown because his
mother had not been sterilized, although he was allowed to attend school in another
village. Lu also testified that he wrote a letter and posted it outside the Board of
Education, claiming that the family planning policies had caused his family to be
separated and him to lose his educational rights. He did not sign the letter and told the
police that he had not written the letter.
The IJ rejected Lu’s claims for asylum because he found Lu’s testimony not
credible. He also found that, even if Lu’s testimony were credible, he had not stated a
claim for persecution. Finally, because the IJ concluded that Lu’s “application for asylum
was an intentional attempt to deceive the Court, to mislead the Court to obtain a benefit
under the Act through fabrications” and was therefore frivolous, he found Lu ineligible
for voluntary departure.
Lu appealed to the BIA. It affirmed in part and reversed in part. It dismissed as
unpersuasive Lu’s arguments that the IJ’s credibility findings did not concern material
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portions of Lu’s testimony. The IJ’s adverse credibility findings were “based on
inconsistencies and omissions that are central to the claim,” the BIA found. Further, “the
discrepancies and omissions are actually present in the record” and those inconsistencies
“provide specific and cogent reasons for the adverse credibility findings.” The BIA also
held that, even assuming Lu had testified credibly, he failed to establish that he had
suffered past persecution or had a reasonable fear of future persecution. Lu was “at best,
the child of an individual who may have been persecuted in China due to her violation of
China’s family planning policies; however, we do not find that a child of a person who
has been subject to harm due to her violation of coercive population control policies in
China” is a refugee entitled to asylum. Finally, the BIA reversed the IJ’s conclusion that
Lu was not entitled to voluntary departure because it concluded that Lu had not filed a
frivolous asylum application, and granted Lu voluntary departure. This appeal followed.2
II. Discussion
The Attorney General may grant asylum to an alien who demonstrates that he or
she is a refugee. INA, § 208(b)(1), 8 U.S.C. § 1158(b)(1). A refugee is someone who is
unable or unwilling to return to his or her country because of a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1158(b)(1). An applicant is
2
This Court has jurisdiction to review final orders of removal pursuant to 8 U.S.C. §
1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001).
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eligible for asylum on the basis of past persecution if he or she can show: “(1) an incident,
or incidents, that rise to the level of persecution; (2) that is ‘on account of’ one of the
statutorily-protected grounds; and (3) is committed by the government or forces the
government is either ‘unable or unwilling’ to control.” Gao v. Ashcroft, 299 F.3d 266,
271-72 (3d Cir. 2002). An applicant is eligible for asylum because of his or her fear of
future persecution upon showing both that he or she possesses a genuine fear and that a
reasonable person would fear persecution if returned to that country. Id. at 272. Aliens
bear the burden of supporting their asylum claims through credible testimony. Id.Here, the BIA found that Lu failed to meet his burden to demonstrate past
persecution or a well-founded fear of future persecution because his testimony was not
credible. W e review that finding under the substantial evidence standard. Abdille v.
Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478(1992)). Under this standard, we may reverse only if we conclude “that the evidence not
only supports [the opposite] conclusion but compels it.” Elias-Zacarias, 502 U.S. at 481
n.1 (emphasis in text). We uphold credibility determinations that are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Abdille, 242 F.3d at 483. Only discrepancies that “involve the heart of the asylum claim”
can support an adverse credibility finding. Gao, 299 F.3d at 272. “Minor inconsistencies
that reveal nothing about an asylum applicant's fear for his safety are not an adequate
basis for an adverse credibility finding.” Id.5
The BIA’s conclusion that Lu’s testimony was not credible is supported by
substantial evidence in the record. As explained in detail by the IJ, there are numerous
inconsistencies between Lu’s testimony at his removal hearing, the information Lu
provided in his asylum application and his testimony to immigration officers at the
airport. These inconsistencies involve matters ranging from the time when Lu’s mother
began to be harassed by family planning officials (right after Lu’s birth in 1981,
beginning in 1983 after the birth of his sister, or starting in 1994 after the birth of her
fourth child) to the type of punishment Lu’s mother was threatened with during a visit by
the family planning officials in February 1995 (a fine according to one version, a notice
of required sterilization according to another account). These inconsistencies go to the
heart of Lu’s asylum claim. Gao, 299 F.3d at 272.
As a result, we conclude that the BIA’s adverse credibility finding is supported by
substantial evidence. Because we conclude that the BIA’s adverse credibility
determination is supported by substantial evidence, we need not consider whether Lu is
entitled to asylum because of the alleged persecution he suffered as a result of his and his
family’s opposition to China’s family planning policy.
* * * *
For these reasons, we dismiss Lu’s petition for review.
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By the Court,
/s/ Thomas L. Ambro
Circuit Judge
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