Chen v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

7-26-2004

Chen v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-2155

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PRECEDENTIAL Bruno J. Bembi (argued)

62 Nichols Court

UNITED STATES COURT OF Suite 202

APPEALS Hempstead, NY 11550

FOR THE THIRD CIRCUIT

Attorney for Petitioner

No. 03-2155 Peter D. Keisler

Assistant Attorney General

Civil Division

HE CHUN CHEN, Earle B. Wilson

a/k/a Douglas E. Ginsburg

HE ZHONG CHEN John D. Williams

Terri J. Scadron

v. Joshua E. Braunstein (argued)

Efthimia S. Pilitsis

JOHN ASHCROFT, Attorney General United States Department of Justice

of the United States, Office of Immigration Litigation

P.O. Box 878

Respondent Ben Franklin Station

Washington, DC 20044

He Chun Chen,

Attorneys for Respondent

Petitioner

OPINION OF THE COURT

On Petition for Review of an Order of

the Board of Immigration Appeals

(INS File Nos. A77-297-487)

GREENBERG, Circuit Judge.

Argued June 28, 2004

I. INTRODUCTION

BEFORE: AMBRO, BECKER, and This matter comes on before this

GREENBERG, Circuit Judges court on He Chun Chen’s petition for

review of a decision of the Board of

(Filed: July 26, 2004) Immigration Appeals (“BIA”) dismissing

his appeal from an order of an Immigration

Judge (“IJ”) denying his application for

asylum and withholding of removal or in

the alternative for protection under the

Convention Against Torture. Inasmuch as

we find that substantial evidence in the in detail. Chen testified at an October 4,

record supports the findings of both the IJ 2000 hearing before the IJ that he is from

and the BIA, we will deny the petition. Fuzhou City in the Fujian Province of

China, where he graduated from high

school in 1981. From 1981 through 1996

Chen worked in construction and in 1996

II. FACTUAL AND PROCEDURAL he opened a bookstore. Chen married Ha

HISTORY Yun Ni on October 27, 1994, who, on

August 20, 1995, gave birth to a daughter.

Chen, a native and citizen of the One month later the government family

People’s Republic of China, arrived in the planning authorities took his wife to Guan

United States at Los Angeles International Tou Hospital for insertion of an intra-

Airport on December 23, 1999, and uterine device (“IUD”) to prevent

applied for admission without valid entry pregnancy. According to Chen, the family

documents. On February 22, 2000, the planning regulations required the insertion

Immigration and Naturalization Service of an IUD after the birth of a child but,

(“INS”), whose functions since have been after four years, permit a family to request

transferred to the Department of Homeland permission to have another child.

Security, initiated removal proceedings

against Chen by serving him with a notice Chen testified that the IUD must

to appear. At a hearing before an IJ in have failed because in early 1996 his wife

which he was represented by counsel, discovered that she was pregnant.

Chen conceded removability but indicated According to Chen, the family planning

that he intended to seek political asylum, authorities required his wife once every

withholding of deportation, and protection three months to go for “inspections” to

under the Convention Against Torture. check on her IUD and ensure that she was

Chen predicates his claims on allegations not pregnant. When Chen’s wife did not

that Chinese authorities forced his wife to go for the scheduled inspection of her IUD

terminate two pregnancies and caused her by the authorities, they came on April 26,

to be sterilized forcibly in accordance with 1996, to the family home to find her. At

the coercive family planning practices of that time Chen was at his bookstore.

the Chinese government. He also alleges When he returned home that night his wife

that the Chinese authorities ransacked and told him that the authorities had taken her

closed his bookstore because he sold Falun to Lian Jiang Hospital and forced her to

Gong literature. undergo an abortion against her will.

Chen said that while his wife did not tell

In recognition of the circumstance him about the procedure in detail, she did

that the IJ and the BIA premised their mention that she was given a shot. On the

denial of his application on Chen’s lack of same day as the abortion the authorities

credibility, we will recount his testimony also forced her to have another IUD

2

inserted. Nevertheless, even though he was warned

not to sell the Falun Gong books, Chen

Chen testified that in 1998 he continued to do so because it was

petitioned for permission to have a second profitable. Chen testified that he received

child. The authorities denied this request, a second warning that he should cease all

citing the earlier violation of the family sales of Falun Gong materials. Chen,

planning policy. Unbeknownst to the however, informed an immigration officer

Chinese government, he and his wife then in California in February 2000 that the

decided to elicit the assistance of a private Chinese government gave him “a” warning

physician to remove the IUD, and in April about selling Falun Gong books. AR 1 at

1998 Chen’s wife had the IUD removed. 199-200.

One month later in May 1998 Chen’s wife

discovered that she was pregnant again. Chen testified that he was not a

When the authorities notified her that it member of Falun Gong, but only sold its

was time for an inspection of the IUD in books, though at the airport interview

July, Chen’s wife went into hiding at her conducted on the day of his arrival in the

parents’ house in Guan Tou. On August United States, Chen told an immigration

31, 1998, the authorities found Chen’s official that he was a practitioner of Falun

wife at her parents’ home and took her to Gong. When asked by the IJ why he made

Lian Jiang Hospital for another forced this statement even though it was not true,

abortion. As with the first abortion, Chen responded that “[t]he smuggler

Chen’s wife was given a shot. The taught me to say that, they said that I have

authorities also inserted another IUD on to say that. They said, they told me not to

the same day. The following year Chen say anything else, just say I am a Falun

again submitted a request to the Chinese Gong follower.” AR at 202. Chen,

government to have another child but this however, never mentioned anything at his

time the authorities granted the request. In airport interview about his family’s

October 1999 Chen’s wife discovered that difficulties with the family planning

she was pregnant. policies in China.

Chen also testified before the IJ that Chen testified that when he refused

he sold Falun Gong books by Li Hong Zhi to heed the cadres’ warnings, the Chinese

in his bookstore from April 1996 through authorities in May 1999 confiscated his

April 1999, when the Chinese government books, destroyed the bookstore, and closed

destroyed and closed the store. it down. Chen then went into hiding. He

Government cadres came to his store and testified that he stayed with an uncle in

notified him that he no longer could sell

Falun Gong books. According to Chen,

the government officials explained that 1

We cite the administrative record as

Falun Gong was an evil religion.

AR.

3

Changle City until November 1999, but she had to return to their home because

though in an earlier interview with United it was the anniversary of the death of

States immigration authorities Chen stated Chen’s mother. Chen testified that the

that he stayed with a relative until authorities found his wife at their home

September 1999. When confronted with and brought her to Mawei Hospital for the

this inconsistency during the immigration sterilization. A letter submitted by Chen

hearing Chen responded “[m]aybe I made from his wife states, however, that the

a mistake?” AR at 200. family planning officials found her at her

parents’ home and took her for the

Two months later on December 21, sterilization from there.

1999, Chen left China with the assistance

of “snakeheads.” Chen traveled to Hong Chen testified that he was applying

Kong, then to Jakarta, Indonesia, on to for political asylum because he violated

Malaysia and finally to Los Angeles. China’s family planning policies and sold

Chen testified that he left China because Falun Gong books in his bookstore. He

he knew that if his wife gave birth to a indicated that he feared returning to China

son, she definitely would be sterilized. He because he might be sterilized. When the

explained that his wife did not come to the IJ asked why the authorities would sterilize

United States because she was pregnant him inasmuch as his wife already had been

and not feeling well. sterilized, he stated that he would not be

sterilized and had “made a mistake.” AR

On July 13, 2000, Chen’s wife gave at 185.

birth to a son. Two months later, on

September 6, 2000, the Chinese authorities At the conclusion of the hearing,

sterilized his wife. Inasmuch as Chen was the IJ issued an oral decision denying

in the United States when his wife was Chen relief. In particular, the IJ found that

sterilized, he obtained the information that Chen failed to establish a well-founded

he provided at the hearing about the fear of persecution, a necessary showing

sterilization from her. In this regard the IJ for him to be eligible for asylum.

questioned Chen why his wife would be Therefore, the IJ found that it was not

sterilized inasmuch as he was already in necessary to consider whether Chen was

the United States and therefore there eligible for relief as a matter of discretion.

seemed little risk of pregnancy. Chen The IJ also denied Chen’s application for

responded that “[t]hey don’t care, as long withholding of removal and found that

as you gave birth to two, two children, and Chen had not shown that more likely than

then they don’t care, either the male or the not he would be tortured if he returned to

female must be sterilized.” AR at 173. China, and, accordingly, he did not merit

protection under the Convention Against

According to Chen, his wife stayed Torture.

at her mother’s home after he left China,

4

In reaching his conclusions, the IJ testimony as to the timing of his departure

found that Chen’s testimony lacked from China. Chen testified that he left

credibility in several respects. First, the IJ China after he and his wife had received

explained that he found Chen’s testimony permission to have a second child and

that on two occasions his wife had an IUD while his wife was pregnant. The IJ

inserted on the same day she had an stated:

abortion as “not only incredible but also

It makes absolutely no sense

implausible.” The IJ reasoned that “due to

to the Court that if the

the physical trauma of an abortion, the

respondent and his wife

Court finds that it is unlikely and most

were granted permission to

likely physically impossible to insert an

have another child, that the

IUD in an individual who has earlier that

govern me nt w ould be

day suffered an abortion.” AR at 97.

considering sterilizing either

the respondent or his wife.

Moreover, the IJ questioned Chen’s

Thus, it makes absolutely no

t e s ti m o n y r e g a r d i n g h i s w i f e ’s

sense to the Court and it is

sterilization. He stated that “[t]his line of

implausible testimony that

testimony again is not credible to the Court

the respondent would wish

and the Court does not understand why the

to leave China due to the

authorities would wish to sterilize the

family planning policy after

respondent’s wife since the respondent,

he had received permission

himself, was in the United States.” AR at

to have this second child.

98. In addition, the IJ identified an

inconsistency in Chen’s recounting of his

wife’s sterilization. Chen testified that the

AR at 100-01. The IJ also pointed to the

authorities found his wife at their home,

discrepancy in Chen’s testimony regarding

while Chen’s wife’s letter indicated that

the length of time he stayed at his uncle’s

the authorities located her at her parents’

home in Changle City while he was in

home. The IJ also pointed out that Chen

hiding prior to leaving for the United

contradicted himself during his testimony

States. At the hearing Chen testified that

regarding his fear of sterilization. Thus,

he lived with his uncle until November

while Chen first testified that he feared

1999 while he previously had informed an

that if he returned to China he would be

immigration official that he stayed with a

sterilized, when the IJ asked why the

relative only until September 1999.

authorities would sterilize him inasmuch

as they already had his wife sterilized, he The IJ also indicated that Chen’s

responded that he would not be sterilized testimony relating to his bookstore lacked

and had made a mistake. credibility. Chen testified that government

officials warned him twice that he should

The IJ also questioned Chen’s discontinue selling Falun Gong books.

5

However, the IJ pointed out that at an issued its decision dismissing Chen’s

earlier interview with an immigration appeal. In support of its decision, the BIA

official Chen stated that he only had been cited the numerous inconsistencies pointed

given “a” warning. out by the IJ. The BIA noted the

discrepancy between Chen’s wife’s

Furthermore, the IJ emphasized that

account of where she had been when she

while Chen testified that he was not a

was taken for sterilization and Chen’s

member of Falun Gong, at his airport

testimony before the IJ. The BIA further

interview he informed the immigration

found that Chen failed to sustain his

officer that he was in fact a member. Chen

burden of proof in showing that his wife

explained during his testimony that the

was subjected to two forced abortions.

smugglers had told him to say this. The IJ

While it recognized that Chen submitted

also noted that Chen never mentioned

two abortion certificates, it questioned

anything during his airport interview about

their validity, citing the Department of

any difficulties his family had with

State country report which states that

China’s family planning policies. The IJ

“such purported certificates, if they exist at

explained that Chen was alone with the

all, may be documents issued to women

immigration official at the airport, and,

who voluntarily submit to an abortion and

therefore, “[n]otwithstanding what the

are entitled to the resulting benefits.” AR

snakeheads had told him to say, I see no

at 2. The BIA also explained that Chen

reason why the respondent would not tell

had failed to prove a well-founded fear of

the inspector the truth, and why his

persecution on account of China’s coercive

testimony would not coincide with the

family practices because he recognized

testimony given to the Court today,

that he would not face sterilization if he

specifically concerning the problems that

returned to China.

his wife has experienced.” AR at 103.

The BIA found that the record

Overall, after considering the entire

supported an ad verse credib ility

record before him, the IJ concluded that

determination as to Chen’s claim related to

Chen had “not established, due to his lack

his sale of Falun Gong books. It pointed

of credibility a well-founded fear of

to the discrepancy in Chen’s account as to

persecution if he were returned to China.

how many times he was warned to stop

Accordingly, his application for asylum

selling the books prior to the Chinese

will be denied.” AR at 104. The IJ also

officials closing down his shop. AR at 2.

denied Chen’s application for withholding

The BIA further cited the false story that

of removal and for protection under the

Chen gave at the airport that he was a

Convention Against Torture. Thus, the IJ

follower of Falun Gong. It noted that

entered orders denying Chen any relief.

Chen did not support this aspect of his

Chen appealed from this disposition claim with “objective evidence that a

to the BIA. On April 3, 2003, the BIA bookstore owner may have acquired over

6

the years to corroborate his claim that he credibility determination of the BIA or IJ

owned a bookstore and that the bookstore unless “any reasonable adjudicator would

was closed.” AR at 3. The BIA concluded be compelled to conclude to the contrary.”

that “[f]or those reasons and others cited in 8 U.S.C. § 1252(b)(4)(B). Accordingly,

the Immigration Judge’s decision, the we are required to sustain an adverse

Immigration Judge correctly denied the credibility determination “unless . . . no

respondent’s application for asylum and reasonable person” would have found the

withholding of removal.” AR at 3. The applicant incredible. See Concrete Pipe &

BIA also upheld the IJ’s determination Prods. of Cal., Inc. v. Constr. Laborers

with respect to Chen’s application for Pension Trust for S. Cal., 508 U.S. 602,

protection under the Convention Against 623, 113 S.Ct. 2264, 2280 (1993). For

Torture. Consequently, it dismissed his Chen to prevail, the evidence of credibility

appeal. must be so strong in his favor that in a

civil trial he would be entitled to judgment

Chen timely filed this petition for

on the credibility issue as a matter of law.

review, limiting his arguments to his

See INS v. Elias-Zacarias, 502 U.S. 478,

asylum and withholding of removal

481 n.1, 112 S.Ct. 812, 815 n.1 (1992)

claims, thus abandoning his claim for

(holding that the BIA’s decision can be

protection under the Convention Against

reversed only where the petitioner’s

Torture.

evidence “compels” a reasonable

factfinder to find in his or her favor).

How ever, adverse cred ibility

III. JURISDICTION AND SCOPE OF

determinations “based on speculation or

AND STANDARD OF REVIEW

conjecture, rather than on evidence in the

The BIA had jurisdiction over this record, are reversible.” Dia v. Ashcroft,

matter pursuant to 8 C.F.R. § 3.1(b)(3) 353 F.3d 228, 249 (2003) (en banc)

(2002), now 8 C.F.R. § 1003.1(b)(3), (quoting Gao v. Ashcroft, 299 F.3d 266,

which grants it appellate jurisdiction over 272 (3d Cir. 2002)).

decisions of immigration judges in

In addition to setting forth our

removal cases. We have exclusive

standard of review we must determine its

jurisdiction under section 242(a)(1) of the

scope, i.e. does our appellate jurisdiction

Immigration and Nationality Act (“INA”),

encompass review of the IJ’s decision as

8 U.S.C. § 1252(a)(1), to review final

well as the BIA’s order? We recently have

orders of removal.

recognized that when the BIA both adopts

We review adverse credibility the findings of the IJ and discusses some

determinations for substantial evidence. of the bases for the IJ’s decision, we have

Balasubramanrim v. INS, 143 F.3d 157, authority to review the decisions of both

161 (3d Cir. 1998). Under this deferential the IJ and the BIA. Xie v. Ashcroft, 359

standard of review, we must uphold the F.3d 239, 242 (3d Cir. 2004); see also

7

Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 she is “unable or unwilling to return to . .

(3d Cir. 2001) (“When the BIA defers to . that country [of nationality] because of

an IJ, a reviewing court must, as a matter persecution or a well-founded fear of

of logic, review the IJ’s decision to assess persecution on account of race, religion,

whether the BIA’s decision to defer was nationality, membership in a particular

appropriate.”). Wh ere t he B IA social group, or political opinion.” 8

substantially relies on an IJ’s adverse U.S.C. § 1101(a)(42)(A). The definition

credibility determination, we must look to of “refugee” includes “a person who has

both decisions in order to satisfy our been forced to abort a pregnancy or to

obligation under 8 U.S.C. § 1252(b) to undergo involuntary sterilization” under

review the administrative decision the ambit of persecution “on account of

meaningfully. Xie, 359 F.3d at 242; see political opinion.” Id. § 1101(a)(42)(B).

also Dia, 353 F.3d at 243. The BIA has extended this protection to

include the spouse of an individual who

The BIA’s decision in this case

has been sterilized or otherwise subject to

makes clear that it was relying upon the

a coercive population control program as

adverse credibility finding made by the IJ.

defined by 8 U.S.C. § 1101(a)(42)(B) and

While the BIA identified some of the

we decide this appeal assuming the

inconsistencies the IJ cited, it did so by

validity of that conclusion. In re C-Y-Z,

way of example and did not conduct a de

21 I. & N. Dec. 915, 918 (BIA 1997). In

novo review of the record to arrive

that case the BIA found that a husband

indep ende ntly at its conclusions.

could “stand in [the] shoes” of a wife who

Inasmuch as the BIA deferred to the IJ’s

had been sterilized forcibly and therefore

credibility determinations and adopted the

was eligible for asylum on that basis. Id.2

reasons the IJ set forth, we have authority

to review both determinations.

2

This case demonstrates what should

IV. DISCUSSION be obvious. C-Y-Z permits a husband to

capitalize on the persecution of his wife

The framework in which we review

to obtain asylum even though he has left

the administrative determinations is well

his wife behind and she might never join

established. Section 208(a) of the INA, 8

him and he might intend that she not do

U.S.C. § 1158(b), gives the Attorney

so. Such an outcome in which the

General discretion to grant asylum to any

application of our laws would contribute

alien who demonstrates that he or she is a

to the destruction of a family union

“refugee” within the meaning of section

seems anomalous, at least in situations in

101(a)(42)(A) of the INA, 8 U.S.C. §

which the husband does not make a

1101(a)(42)(A). Elias-Zacarias, 502 U.S.

compelling showing that if he is granted

at 481, 112 S.Ct. at 815. To qualify as a

asylum his wife will be able to join him

“refugee,” one must demonstrate that he or

in this country. Indeed, the application

8

U n like asylum , w hich is As we often have recognized, the

discretionary, the Attorney General must substantial evidence standard of review is

grant withholding of removal if the alien extremely deferential, setting a “high

demonstrates a “clear probability” that, hurdle by permitting the reversal of factual

upon return to his or her home country, his findings only when the record evidence

or her “life or freedom would be would ‘compel’ a reasonable factfinder to

threatened” on account of race, religion, make a c on tra ry de te r mina ti o n .”

nationality, membership in a particular Abdulrahman v. Ashcroft, 330 F.3d 587,

social group, or political opinion. See INS 597 (3d Cir. 2003) (quoting Elias-Zacarias,

v. Stevic, 467 U.S. 407, 104 S.Ct. 2489 502 U.S. at 481 n.1, 112 S.Ct. at 815 n.1).

(1984); Zubeda v. Ashcroft, 333 F.3d 463, We therefore look at the adverse

469-70 (3d Cir. 2003). An alien who fails credibility determinations made by the IJ

to establish that he or she has a well- and BIA “to ensure that [they were]

founded fear of persecution, so as to be ‘appropriately based on inconsistent

eligible for a grant of asylum, necessarily statements, contradictory evidences, and

will fail to establish the right to inherently improbable testimony . . . in

withholding of removal. Zubeda, id. at view of the background evidence on

469 (citing Janusiak v. INS, 947 F.2d 46, country conditions.’” Dia, 353 F.3d at 249

47 (3d Cir. 1991)). (citation omitted). While, as we will

explain, we are troubled by some of the

The applicant for asylum has the

speculative statements the IJ and the BIA

burden of proof to establish his or her

made, after reviewing the record as a

eligibility for asylum. 8 C.F.R. §

whole we are convinced that the record

208.13(a) (2002); Abdille v. Ashcroft, 242

evidence does not compel us to reach a

F.3d 477, 482 (3d Cir. 2001). The alien

conclusion contrary to that of the IJ and

must show by credible, direct, and specific

the BIA.

evidence an objectively reasonable basis

for the claimed fear of persecution. We recognize that we have

Balasubramanrim, 143 F.3d at 165. counseled against placing too much weight

on an airport interview, especially when

the IJ and BIA lack important information

of our laws may be encouraging as to the manner in which the interview

husbands to desert their wives. While we was conducted. Xie, 359 F.3d at 246;

recognize that historically in persecution Mulanga v. Ashcroft, 349 F.3d 123, 137

cases married men sometimes have come (3d Cir. 2003) (“immaterial discrepancies

to this country first and then have been between airport interviews and subsequent

followed by their families, C-Y-Z, 21 I. testimony should not be used to make

& N. Dec. 915, at 920, 927 (Rosenberg, adverse credibility determinations”);

Member, concurring), still it would be Ezeagwuna v. Ashcroft, 325 F.3d 396, 408

useful to study the actual impact of C-Y- (3d Cir. 2003); Senathirajah v. INS, 157

Z on family structures.

9

F.3d 210, 217-18 (3d Cir. 1998); practices in China. The only explanation

Balasubramanrim, 143 F.3d at 162-64. Chen offered before the IJ was that the

We also have made clear that ambiguous smugglers told him to inform the United

answers at airport interviews should not be States immigration officials that he was a

relied upon to question the credibility of Falun Gong follower. Both the IJ and the

the alien later, though we have limited BIA reasonably relied on these

concern with that admonition here as Chen contradictory statements in finding that

does not challenge the manner in which Chen’s testimony lacked credibility.

the immigration official conducted the

The IJ also cited to other

airport interview and he does not maintain

discrepancies in Chen’s testimony leading

that the respondent has mischaracterized

to his adverse credibility determination for

his statements made at that interview.

which we find support in the record. The

Rather, he merely points out that the notes

IJ pointed to the discrepancy in Chen’s

from the airport interview are not in the

testimony regarding the length of time he

record and that it cannot be said when they

stayed at his uncle’s home in Changle City

were written or “whether [his] full

while he was in hiding prior to leaving for

responses were translated at the airport, or

the United States. At the hearing Chen

even whether he had an opportunity to

testified that he lived with his uncle until

make clear, as he did in immigration court,

November 1999 though he informed an

that the cadres thought he was a Falun

immigration official at an earlier interview

Gong follower.” Appellant’s br. at 59.

that he stayed with a relative only until

On the other hand, where the September 1999. In addition, Chen first

discrepancies between an airport interview testified before the IJ that he feared that if

and the alien’s testimony “go to the heart he returned to China he would be

of the claim,” they certainly support an sterilized. When the IJ asked why the

adverse credibility determination. Xie, authorities would sterilize him in light of

359 F.3d at 246. Here the record is clear the circumstance that his wife already had

that Chen provided information at his been sterilized, Chen responded that he

airport interview markedly different from would not be sterilized and had made a

his testimony before the IJ. At his airport mistake. The IJ also pointed to a

interview he explained that he left China discrepancy between Chen’s testimony

because he was unable to practice Falun regarding his wife’s sterilization and a

Gong. In contrast, Chen testified before letter provided by Chen from his wife.

the IJ that he was never a Falun Gong Chen testified before the IJ that his wife

follower, but he did sell Falun Gong books was apprehended by the family planning

at his bookstore. Furthermore, Chen never authorities at their home, while Chen’s

mentioned anything during his airport wife’s letter stated that the authorities

interview about any difficulties he or his found her at her parent’s home.

wife had with the coercive family planning

We recognize, however, that while

10

a review of the record evidence does not sterilized even though he was in the United

compel that we reach a conclusion States does not strike us as implausible

contrary to that drawn by the IJ and the given the regulations and therefore it does

BIA, just as Judge Becker stated in his not support an adverse credibility

concurrence in Abdulrahman, 330 F.3d at determination.

600, we note our “extreme discomfiture”

We also are troubled by several

with some of the statements the IJ made.

aspects of the BIA decision dismissing

The IJ dismissed Chen’s testimony that his

Chen’s appeal. The BIA noted that Chen

wife had an IUD inserted on the same day

failed to support his claim that he was

as an abortion on two separate occasions

persecuted for selling Falun Gong books

as “not only incredible but also

with “objective evidence that a bookstore

implausible,” reasoning that “due to the

owner may have acquired over the years to

physical trauma of an abortion, the Court

corroborate his claim that he owned a

finds that it is unlikely and most likely

bookstore and that the bookstore was

physically impossible to insert an IUD in

closed.” AR at 3. We have explained in

an individual who has earlier that day

the past that “the BIA may . . . sometimes

suffered an abortion.” AR at 97. This

require corroboration of otherwise-credible

statement is troublesome for two reasons.

testimony.” Abdulai, 239 F.3d at 545. In

First, the IJ is not a physician and while he

Abdulai, id. at 554, we deferred to the

finds the evidence regarding the IUD

three-part inquiry developed by the BIA in

unlikely, he does not point to evidence in

In re S-M-J, 21 I. & N. Dec. 722 (1997),

the record in support of his speculation.

for analyzing whether an alien should have

Second, the family planning regulations

offered corroborating evidence. The three-

from Chen’s province in the administrative

part test requires the BIA to: (1) identify

record clearly state that IUDs are inserted

the facts for which it was reasonable to

on that same day that “manual abortion[s]”

expect corroboration; (2) conduct an

take place. AR at 467.

inquiry as to whether the applicant has

The IJ also questioned Chen’s provided corroborating evidence; and (3)

credibility because he testified that his if he or she has not provided such

wife was sterilized by the family planning corroborating evidence, address whether

authorities even though there was no risk the applicant adequately has explained his

of pregnancy inasmuch as he was out of or her failure to do so. Mulanga, 349 F.3d

the country. The family planning at 133-34; Abdulai, 239 F.3d at 554. In

regulations, however, specifically state that this case the BIA failed to follow the test

“[f]or those who have two children S-M-J set forth and explain why it was

already, hospitals should cooperate with reasonable to expect such corroboration

r e l a te d d e pa rt m ents and enfo rce and whether Chen adequately explained

sterilization operations on the spot.” AR his failure to provide it.

at 467. Chen’s testimony that his wife was

The BIA also explained that Chen

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had failed to prove a well-founded fear of validity of the abortion certificates based

persecution on account of China’s coercive on nothing more than the country report.

family practices because he acknowledged

While we recognized in Liu v.

that he would not face sterilization if he

Ashcroft, 372 F.3d 529, 534 (3d Cir.

returned to China. However, as we

2004), that remand is appropriate where

explained above, if the IJ and BIA found

“we have made a legal determination (e.g.,

Chen credible, he would be eligible for

regarding admissibility of evidence) that

asylum under the BIA’s decision in In re

fundamentally upsets the balancing of

C-Y-Z, 21 I. & N. Dec. at 918, because he

facts and evidence upon which an agency’s

stands in the shoes of his wife who was

decision is based,” that decision is

subject to forced abortions and coerced

inapplicable here. In Liu we made clear

sterilization. Therefore, even assuming

t h a t the impr o p e r r e je c t io n o f

that Chen would not face sterilization

unauthenticated abortion certificates by the

himself if he returned to China, this

IJ infected the adverse credibility

circumstance would not affect his

determination. But the differences

eligibility for asylum.

between Liu and this case are apparent.

We also note that the BIA rejected The discrepancies in the testimony of the

the validity of the two abortion certificates Lius were much less dramatic than the

submitted by Chen bec ause the differences in Chen’s airport interview and

Department of State’s country report states his testimony before the IJ. Furthermore,

that “such purported certificates, if they the IJ’s rejection in Liu of the petitioners’

exist at all, may be documents issued to credibility was intertwined inextricably

women who voluntarily submit to an with his unwillingness to consider the

abortion and are entitled to the resulting abortion certificates because they were not

benefits.” AR at 2, 361-62, 364-65. We authenticated. In contrast, here the IJ’s

previously have questioned such wholesale adverse credibility determination related to

reliance on the Department of State’s the discrepancy between the airport

country reports, quoting with approval interview and Chen’s testimony as to his

Galina v. INS, 213 F.3d 955, 959 (7th Cir. relationship with Falun Gong and thus was

2000), that “[t]he country report is separate and apart from the IJ’s improper

evidence and sometimes the only evidence speculation as to the insertion of the IUD

available, but the Board should treat it on the same day as the abortions, among

with a healthy skepticism, rather than, as is other stated grounds. We therefore

its tendency, as Holy Writ.” Lin v. INS, conclude that Liu does not compel us to

238 F.3d 239, 248 (3d Cir. 2001); see also remand this case to the BIA or even justify

Ezeagwuna, 325 F.3d at 407. The BIA us in doing so.

“ c a n n o t h i d e b e h in d t h e S t a te

Department’s letterhead.” Lin, 238 F.3d at

246. Therefore, it erroneously rejected the V. CONCLUSION

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While we have noted our

difficulties with the decisions of both the

IJ and the BIA, as we explained above,

“the overriding consideration here must be

the extraordinarily deferential standard

m a n d a t e d b y E l i a s -Z a c a r i a s.”

Abdulrahman, 330 F.3d at 598. After

reviewing the administrative record we

find that the record does not compel a

contrary credibility finding here. The

inescapable conclusion that we must draw

is that there are unimpeachable bases on

which to arrive at the conclusion that the IJ

and BIA did that Chen was not credible

and thus he was not entitled to asylum or

the withholding of removal. For all the

reasons we have stated, we will deny the

petition for review.

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