Peng v. Attorney General ( 2008 )

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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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
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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
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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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