Chen v. Attorney General of the United States

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-5-2007
Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1469
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-1469
____________
ZHOA WANG CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A75 566 090)
Immigration Judge: Donald Vincent Ferlise
____________
Submitted Under Third Circuit LAR 34.1(a)
October 25, 2007
Before: FISHER, STAPLETON and COWEN, Circuit Judges.
(Filed: December 5, 2007)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Zhao Wang Chen1 seeks review of an order of the Board of Immigration Appeals
(“BIA”), affirming the Immigration Judge’s (“IJ’s”) denial of his request for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). For
the following reasons, we will deny the petition.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
Chen, a native and citizen of China, entered the United States early in 1996
without inspection by immigration officials. After he had filed an application requesting
asylum and withholding of removal, the Immigration and Naturalization Service (“INS,”
now Immigration and Customs Enforcement, “ICE”) served him with a Notice to Appear,
charging him with removability.
Chen’s application was based upon the fact that his wife underwent forced
abortions three times. In addition, Chen and his wife were fined after the birth of their
second child, which was a violation of China’s one-child policy. After the birth of the
second child, the authorities told Chen’s wife that she would be required to be sterilized.
1
Documents generated by the Office of the Clerk for this Court alternately list
petitioner’s given name as “Zhoa” or “Zoa.” However, the spelling used consistently in
agency proceedings is “Zhao.”
2
However, she had a heart condition that prevented her from being able to safely undergo
this surgery. Chen believed that the authorities would require him to be sterilized instead,
and he fled.
At his hearing, Chen testified as to the events and dates relevant to his application,
including the dates of the abortions. Chen also presented documentation including
abortion certificates, receipts for payment of the fine for the second child’s birth,
certificates showing the insertion of an IUD birth control device, and medical records
regarding his wife’s heart condition. However, these documents were not authenticated
according to agency regulations, and the IJ accorded them little weight.
On August 12, 1999, IJ Donald Vincent Ferlise denied Chen’s applications on the
merits, finding that he lacked credibility. Chen appealed. On December 17, 2002, the
BIA reversed the IJ’s decision, concluding that it was not based upon substantial
evidence.
At Chen’s hearing on remand on October 18, 2004, Chen’s attorney stated that he
wished to rest on the record. The IJ interpreted Chen’s attorney as having waived direct
examination. The hearing proceeded with cross examination by the government. After
protesting that he wished to rest on his prior testimony, Chen followed the directions of
the IJ and answered the government’s questions. However, he provided little
information, stating repeatedly that he did not remember the answers to the questions. He
was unable to recall the dates or even the years of his wife’s three abortions. In addition,
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he was unable to recall details about the forced insertions of IUDs and the fine for his
second child’s birth. He had testified as to all of these facts in his initial hearing.
At the conclusion of the hearing, the IJ again denied Chen’s applications for relief.
The IJ found that Chen lacked credibility, stating that he had memorized “fraudulent”
facts, which he “regurgitated” at his first hearing and then forgot by the time of his
second hearing. The IJ found that Chen had filed frivolous applications for asylum and
withholding and ordered his removal to the People’s Republic of China.
The BIA affirmed this second determination without opinion. Chen filed a timely
notice of appeal.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Where the BIA summarily
affirms an order of removal, we review the IJ’s decision. Gao v. Ashcroft, 299 F.3d 266,
271 (3d Cir. 2002). We review the IJ’s decision, including his credibility determinations,
under the deferential “substantial evidence” standard. Dia v. Ashcroft, 353 F.3d 228, 249
(3d Cir. 2003) (en banc). “If the IJ’s conclusion is not based on a specific, cogent reason,
but, instead, is based on speculation, conjecture, or an otherwise unsupported personal
opinion . . . it will not have been supported by substantial evidence.” Id. at 250. A
finding is not supported by substantial evidence only where “no reasonable fact finder
could make that finding on the administrative record.” Id. at 249.
An alien may qualify for asylum if he can prove that he has experienced
persecution or has a “well-founded fear of persecution on account of race, religion,
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nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). To qualify for withholding of removal, an applicant must present
credible evidence demonstrating a “clear probability” of persecution if removed to a
particular country. I.N.S. v. Stevic, 467 U.S. 407, 413 (1984). To qualify for relief under
the CAT, an applicant must demonstrate that it is more likely than not that he will be
tortured if removed. Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir. 2006).
III.
Chen argues that the IJ’s decision was not based on substantial evidence. He states
that he presented sufficient evidence of his wife’s forced abortions and that the IJ
improperly focused on his credibility rather than the forced nature of the abortions. In
addition, Chen claims that his inability to answer questions at his second hearing was due
to “memory loss, extreme nervousness, and lack of formal education.”
It is true that Chen presented several documents purported to be abortion
certificates and other relevant documentation. However, because Chen made no effort to
authenticate these documents, according to ICE rules or otherwise, see Liu v. Ashcroft,
372 F.3d 529 (3d Cir. 2004), we defer to the IJ’s determination that they were to be
accorded little weight. The IJ’s focus on Chen’s credibility, rather than the forced nature
of the abortions, was not inappropriate because the IJ found that Chen’s lack of credibility
undermined his testimony as to the abortions.
Chen’s second argument, that his inability to testify was due to a variety of factors
that do not implicate his credibility, may very well be accurate. We believe it is possible
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that memory loss, nervousness, and lack of education could prevent Chen from being able
to testify accurately at his second hearing. However, we are constrained by the
“substantial evidence” standard of review. We cannot say that no reasonable fact finder
would have made the determination that Chen lacked credibility, especially in light of his
relatively clear, detailed testimony at his first hearing. Dia, 353 F.3d at 249.
It seems to us, as we review the record, that the IJ probably put forth “speculation,
conjecture, or . . . otherwise unsupported personal opinion[s]” in both his first and second
rulings. Id. at 250. However, the heart of his determination was that the contrast between
Chen’s two hearings – his detailed testimony at the first hearing and his almost complete
memory loss at the second hearing – demonstrated that the testimony at the first hearing
was not true and had been memorized for the purpose of the hearing. We are unable to
say that this determination was not supported by substantial evidence on the record as a
whole.
IV.
For the foregoing reasons, we will affirm the BIA and deny Chen’s petition for
review.
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