Yirong Chen v. Eric H. Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0234n.06
Filed: March 27, 2009
No. 08-3077
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
YIRONG CHEN, )
) PETITION FOR REVIEW OF ORDER OF
Petitioner, ) BOARD OF IMMIGRATION APPEALS
)
v. )
)
ERIC H. HOLDER, JR., )
Attorney General of the United States, )
)
Respondent. )
BEFORE: KEITH, SUTTON and GRIFFIN, Circuit Judges.
KEITH, Circuit Judge. Petitioner Yirong Chen seeks this court’s review of an order from
the Board of Immigration Appeals (the “BIA”), denying his application for asylum, withholding of
removal and protection under the Convention Against Torture based on an adverse credibility
determination. Because substantial evidence supports the BIA’s decision, we DENY the petition
for review and AFFIRM the BIA’s decision.
I.
Petitioner Yirong Chen (“Chen”) is a native and citizen of the People’s Republic of China
(“China”). On April 17, 1993, he entered the United States through Nogales, Arizona, without being
admitted or paroled by an immigration officer. Chen subsequently filed an application for asylum,
withholding of removal, and protection under the Convention Against Torture with the Immigration
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and Naturalization Service (“INS”),1 and was interviewed by an asylum officer on December 9,
1996. On May 15, 1997, INS initiated removal proceedings against Chen, pursuant to 8 U.S.C. §
1229(a). He was charged with being an alien present in the United States, who has not been admitted
or paroled under Section 212(a)(6)(A)(I) of the Immigration and Nationality Act. In a full hearing
before an Immigration Judge (“IJ”), Chen conceded that he was subject to removal, and the court
sustained the charge.
Chen filed two additional applications for asylum, withholding of removal, and relief under
the Convention Against Torture. All three applications for asylum were premised on Chen’s alleged
fear of persecution, as a result of his purported resistance to China’s family planning practice. The
evidence at Chen’s hearing before the immigration court consisted of: (1) his testimony; (2) his three
applications for asylum;2 (3) a copy of a diagnosis x-ray; (4) copies of what he purports are
sterilization certificates for his wife and himself; (5) a fine receipt issued by the Chinese government;
1
The Department of Homeland Security now performs functions formerly attributable to the
INS.
2
In support of his asylum applications, Chen provided the following unauthenticated and
untranslated documents: (1) photocopies of an ID purportedly issued by the Chinese Government;
(2) a purported marriage certificate; (3) a purported residential certificate for him, his wife and his
first and second daughters; (4) a purported birth certificate for his third daughter; (5) purported
sterilization certificates for his wife and himself; and (6) a purported fine receipt issued by the
Chinese government. Chen also submitted a purported report of his wife’s x-ray diagnosis. This
document appears to have been translated, and the accuracy of the translation appears to have been
certified before a notary public. The reliability of these documents is questionable in light of the
1998 Profile Report submitted by the Government, which states that documentation from the Fujian
province is subject to widespread fabrication and fraud, including documents that are designed to
verify identities, personal histories, and birth and birth control measures, as established by direct
investigation of U.S. officers in the Consulates General at Guangzhou and Shanghai.
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and (6) a supplemental statement. The Government submitted copies of: (1) the Profile of Asylum
Claims & Country Conditions (the “Profile Report”) on China from April 1998 and June 2004 and
(2) Country Reports on China from 1999, 2003, 2004 and 2005.
On April 5, 2006, the IJ found that Chen lacked credibility because he failed “to provide
convincing explanations for” discrepancies and omissions in his testimony. The IJ cited
inconsistences and unconvincing explanations related to: (1) the existence of a third child; (2) the
circumstances surrounding Chen’s allegedly forced sterilization; (3) Chen’s failure to explain why
the government waited eighteen months to sterilize him after the birth of his second child; (4) the
circumstances surrounding Chen’s wife’s intrauterine device (“IUD”) and forced sterilization; and
(5) Chen’s alleged detention and his wife’s alleged arrest. The IJ found that Chen’s inconsistencies
as to sterilization and the existence of family members were material, since they went to the
substance of his claim that he was resisting China’s “coercive” family planning practices.
The IJ was also suspicious of Chen’s claim that he was sterilized sometime in 1992, given
the 1988 Profile Report drafted by the State Department, which found that there have been “no, or
few, examples” since the 1980s of forced sterilizations or abortions in the region where Chen
resided. The IJ also noted that Chen failed to submit, in any of his three applications, medical
evidence from a specialist demonstrating that he had, in fact, been sterilized.
The IJ’s decision became the final agency decision on December 26, 2007 when it was
adopted and affirmed by the BIA. See Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007).
II.
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In the instant appeal, Chen challenges the IJ’s finding that his oral testimony and written
statements about past persecution lacked credibility.3 We review the IJ’s credibility determination
under the deferential substantial evidence standard, which mandates that we find the agency’s factual
findings to be conclusive “unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); Tapucu v. Gonzales, 399 F.3d 736, 738 (6th Cir. 2005);
Hassan v. Gonzales, 403 F.3d 429, 434 (6th Cir. 2003). The IJ’s reasons for rendering an adverse
credibility determination must go to “the heart of the applicant’s claim.”4 Sterkaj v. Gonzales, 439
F.3d 273, 275 (6th Cir. 2006) (internal quotation marks omitted).
Given Chen’s many inconsistent statements concerning material matters, and his failure to
corroborate his weak testimony with any evidence establishing the truth of his alleged persecution,
there is substantial evidence to support the IJ’s adverse credibility determination. See Matter of A-S-,
21 I. & N. Dec. 1106, 1112 (BIA 1998) (stating “a credibility determination apprehends the overall
3
On review before the BIA, Chen raised his withholding of removal claim in a perfunctory
manner and his claim as to protection under the Convention Against Torture only to state that it was
denied before the IJ. Accordingly, any appeal as to these issues has been waived. See 8 U.S.C. §
1252(d)(1); Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004). Nonetheless, even if we were
to find that these issues had not been waived, because we ultimately find that the IJ was correct in
rendering an adverse credibility determination against Chen, he has necessarily failed to meet his
burden of proof for withholding of removal and relief under the Convention Against Torture. Berri
v. Gonzales, 468 F.3d 390, 397-98 (6th Cir. 2006); Guang Run Yu v. Ashcroft, 364 F.3d 700, 703
n.3 (6th Cir. 2004).
4
The Real ID Act of 2005 changes the standards governing credibility determinations, making
it unnecessary for inconsistencies, inaccuracies and falsehoods to go to the heart of the applicant’s
claim. 8 U.S.C. §1158(b)(1)(B)(iii); Amir v. Gonzales, 467 F.3d 921, 925 n.4 (6th Cir. 2006). This
provision, however, does not apply to the instant case, as the Real ID Act of 2005 only governs cases
filed after May 11, 2005, and Chen filed his initial asylum application in 1993 and his second and
third applications in 1999 and 2004, respectively. Amir, 467 F.3d at 925 n.4.
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evaluation of testimony in light of its rationality or internal consistency and the manner in which it
hangs together with other evidence”) (citations and internal quotation marks omitted); Matter of Y-B-
, 21 I. & N. Dec. 1136, 1139 (BIA 1998) (stating that “the weaker an alien’s testimony, the greater
the need for corroborative evidence”). We therefore need not expressly consider Chen’s claim for
asylum. See Guang Run Yu v. Ashcroft, 364 F.3d at 703.
We must address one procedural issue before turning to the inconsistent facts at issue in this
case. To his first asylum application, Chen attached a document entitled “Addendum.” The name
on the Addendum was not his own, but listed within the text was the year Chen’s wife first became
pregnant and the birth date of his first child. Chen asks this Court to discount the IJ’s finding as to
the Addendum as well as unidentified “dates” and their relevance to his credibility, but has failed
to demonstrate that he raised this argument to the BIA before raising it here. We are precluded from
reviewing procedural errors that could have been corrected by the BIA, but are being raised for the
first time on appeal. Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006). Because there is more
than sufficient evidence independent of the Addendum that demonstrates Chen’s lack of veracity,
it would be futile to remand this issue to determine whether the Addendum should be discounted.
Xiao Ji Chen v. United States DOJ, 471 F.3d 315, 339 (2d Cir. 2006) (stating “[t]he overarching test
for deeming a remand futile . . . is when the reviewing court can ‘confidently predict’ that the agency
would reach the same decision absent the errors that were made”). Instead, we will review Chen’s
adverse credibility determination without regard to the Addendum. We turn now to the
inconsistencies in Chen’s testimony.
A. The Existence of a Third Child
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Chen acknowledged in his hearing before the IJ that he underwent an asylum interview in
Chicago, based on the first application he filed, where he was placed under oath and provided with
an interpreter who spoke Mandarin. When questioned before the IJ as to why he failed to mention
in his initial application the existence of a third child, who allegedly had already been born, Chen
stated that he was not sure of the laws in the United States, his attorney simplified his story, and he
thought he might be fined for an additional child because he was not sure the United States and
China were entirely different.
Chen rests his asylum claim on his assertion that he was persecuted, and fears persecution,
due to his resistance to China’s family planning policies. His failure to provide a rational
explanation as to why he initially omitted the existence of a third child, directly concerns whether
or not he was exercising a political opinion that rendered him vulnerable to persecution. Particularly
puzzling and destructive to Chen’s asylum claim is the fact that he informed the IJ that it was legal
for him to have a second child in the rural village where he lived. During his merits hearing before
the IJ, Chen could not explain away the discrepancy this created with his first application, which
listed only two children as the basis on which he was persecuted, conceding that: “I’m not so clear
about [sic] because the interview for the political asylum officer was very strict and he was yelling
and then I told the truth.” Chen’s credibility is damaged on this ground.
B. Sterilization
Chen also changed his story multiple times between his initial application and his hearing
before the IJ as to the circumstances surrounding his allegedly forced sterilization surgery. Chen
stated in his merits hearing before the IJ that he suffered forced sterilization after the birth of his
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second child. Chen was asked on cross-examination why he did not mention this in his initial
application, and he stated that at the time he “was a stupid guy; I didn’t know anything. And now,
I’ve been in the United States for awhile and I know.” He also stated in the merits hearing that he
was given a choice, following the birth of his second child, between either being sterilized himself
or having his wife sterilized. When confronted with an earlier sworn statement in which Chen said
he was given a choice between being sterilized or losing his grocery store license, Chen said he did
not remember why initially he had made that statement. Chen also could not adequately explain why
the Chinese government allegedly waited eighteen months after the birth of his second child, who
was born in a public hospital, to sterilize him. Instead, he merely asserted that “we didn’t have any
contraceptive method so they, at the time, China was pushing this family planning policies very in
urgency.”
Before the IJ, Chen stated that his wife was sterilized after the birth of their third child. He
also stated that before she was sterilized she had an IUD that accidently fell out. When asked why
he had initially said it was secretly removed, he could not provide an explanation.
The inconsistencies in Chen’s testimony concerning his sterilization and his wife’s
sterilization are material, since their purported sterilizations are one of the main grounds Chen relies
upon to demonstrate past persecution. Furthermore, if Chen was actually sterilized, he could have
easily corroborated his alleged sterilization through medical evidence. See Matter of Y-B-, 21 I. &
N. Dec. at 1139. His failure to submit such evidence further discredits his testimony.
C. Arrest
Chen also changed his testimony (in both written and oral form) regarding his alleged
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detention and his wife’s purported arrest. Before the IJ, Chen was asked why he did not mention
whether he or any of his family members had been arrested in his first application but later claimed
that he was detained and his wife was arrested. He responded that he did not know anything at the
time he filled out the application form, he merely asked for some help from the immigration service,
and they wrote down a simple story. This insufficiently explained inconsistency is material, as again,
it concerns evidence that would support Chen’s claim that he was persecuted due to his resistance
to China’s family planning policy.
III.
Chen has failed to demonstrate any evidence in the record that compels a conclusion contrary
to the agency’s adverse credibility determination. Therefore, finding no error in the agency’s
decision, we DENY the petition for review and AFFIRM the BIA’s decision.
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