Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2005

Chen v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-4887




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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 03-4887


                  XIA YUE CHEN,

                          Petitioner

                           v.

ALBERTO R. GONZALES, ATTORNEY GENERAL OF
            THE UNITED STATES

                          Respondent




 On Petition for Review from the Board of Immigration
                       Appeals
               Agency No. A78-746-838


Submitted Under Third Circuit LAR 34.1(a): January 13,
                        2005
   Before: SCIRICA,* Chief Circuit Judge, ROTH, Circuit
        Judge, and IRENAS,** Senior District Judge.

                  (Filed December 29, 2005)

Norman K.W. Wong, Esquire
401 Broadway, Suite 1205
New York, NY 10013

                     Counsel for Petitioner

Peter D. Keisler
Assistant Attorney General
Civil Division

Margaret J. Perry
Senior Litigation Counsel

Mary Jane Candaux
Douglas E. Ginsburg
Jennifer L. Lightbody
John D. Williams


  *
     This case was originally submitted to the three judge panel
of Roth, Chertoff and Irenas. Judge Chertoff subsequently
resigned and Chief Judge Scirica was designated as the third
member of the panel.
   **
    Honorable Joseph E. Irenas, Senior United States District
Judge for the District of New Jersey, sitting by designation.

                               2
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

                      Counsel for Respondent




                 OPINION OF THE COURT


IRENAS, Senior United States District Judge.

       Petitioner Yue Xia Chen (“Chen”) petitions for review of
the decision of the Board of Immigration Appeals (“BIA”)
denying her application for asylum, withholding of removal, and
protection under the Convention Against Torture. The focus of
Chen’s argument is that she was subject to a forced abortion
which made her eligible for refugee status in this country. The
principal issue on this Petition for Review is whether the
Immigration Judge (“IJ”) properly determined that her testimony
on this issue lacked credibility and was insufficiently
corroborated. Although we find that the IJ did not make the
separate credibility finding required by In re S-M -J-, 21 I. & N.
Dec. 722, Interim Decision 3303 (BIA 1997), 

,
his decision to deny the Petition for Review based on a
determination that Chen did not meet her burden of proof by
adequately corroborating her story was a proper application of
the principles set forth in Abdulai v. Ashcroft, 

,

                                3
554 (3d Cir. 2001).

                                 I.
       Chen, a citizen of the People’s Republic of China,
entered the United States at St. John in the United States Virgin
Islands without inspection on or about October 20, 2001. The
INS issued a Notice to Appear, alleging that Chen was
inadmissible because she was present in the United States
without being admitted or paroled, in violation of 8 U.S.C. §
1182(a)(6)(A)(i). Such a person is removable under 8 U.S.C. §
1227(a)(1). Chen conceded her removability, but filed an
application for asylum under 8 U.S.C. § 1158 and withholding
of removal under 8 U.S.C. § 1231(b)(3), and sought protection
under the Convention Against Torture.1 Following a hearing, an
Immigration Judge (“IJ”) denied her application on October 1,
2002. Chen appealed the IJ’s decision to the BIA, which
affirmed the IJ’s decision without opinion on December 16,
2003. This Petition for Review followed.




                               II.

      To qualify for asylum, Chen must demonstrate that she
meets the statutory definition of “refugee” under the


     1
     United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment, G.A.
Res 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N.
Doc. A/39/51 (1984).

                               4
Immigration and Nationality Act, which states generally that a
refugee is:

       [A]ny person who is outside any country of such person's
       nationality . . . and who is unable or unwilling to return
       to, and is unable or unwilling to avail himself or herself
       of the protection of, that country because of persecution
       or a well-founded fear of persecution on account of race,
       religion, nationality, membership in a particular social
       group, or political opinion . . . .


8 U.S.C. § 1101(a)(42). This definition has been amended to
specifically address Congress’ concern with coercive family
planning practices, by providing, inter alia, that anyone who has
been “forced to abort a pregnancy . . . shall be deemed to have
been persecuted on account of political opinion.” 

removal does not rely on the perspective
of the applicant’s well founded fear, but is instead appropriate
only if the Attorney General determines that there is a “clear
probability” that the alien’s life or freedom would be threatened
upon her removal to a particular country. INS v. Stevic, 

, 412 (1984); see also 8 U.S.C. § 1231(b)(3)(A).
       The Convention Against Torture has been implemented
by regulations codified at 8 C.F.R. §§ 208.16 and 208.18 which
require withholding of removal for an alien who can show that
it is more likely than not that she will be tortured by the
government or with its acquiescence upon removal to a
particular country. The regulations define torture as “an extreme
form of cruel and inhuman treatment,” but not “lesser forms of


                               5
cruel, inhuman or degrading treatment or punishment not
constituting torture.” 8 C.F.R. § 208.18; see also 8 U.S.C. §
1231 note (1998) (United States Policy With Respect to the
Involuntary Return of Persons in Danger of Subjection to
Torture).


                               III.
       Where, as here, the BIA affirms the IJ’s decision without
opinion, “we review the IJ’s opinion and scrutinize its
reasoning.” Dia v. Ashcroft, 

, 245 (3d Cir. 2003)
(en banc). Review of an IJ decision is conducted under the
substantial evidence standard which requires that administrative
findings of fact be upheld “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); Zheng v. Gonzales, 

, 381 (3d Cir.
2005). “Adverse credibility determinations are factual findings
subject to substantial evidence review.” Id.; Tarrawally v.
Ashcroft, 

, 184 (3d Cir. 2003). We will defer to
and uphold the IJ’s adverse credibility determinations if they are
“supported by reasonable, substantial, and probative evidence on
the record considered as a whole,” INS v. Elias-Zacarias, 

, 481 (1992), but such findings must be based on
inconsistencies and improbabilities that “go to the heart of the
asylum claim.” Id.; see also Gao v. Ashcroft, 

, 272
(3d Cir. 2002).2 “[D]eference is not due where findings and


   2
    The REAL ID Act of 2005 was adopted on May 11, 2005.
Pub. L. No 109-13, 119 Stat. 231 et seq. This law created new
standards to guide a finder of fact in making credibility

                                6
conclusions are based on inferences or presumptions that are not
reasonably grounded in the record as a whole.”
Balasubramanrim v. INS, 

, 161 (3d Cir. 1998).

                               IV.
                                A.
       We begin with Chen’s asylum claim. At the hearing
before the IJ Chen testified 3 that she was born on January 1,
1980, in a village in Fujian Province. In 1999 she began
working as a salesperson in a store associated with a privately
owned jewelry factory. Chen became romantically involved
with a young man who worked at the factory. Both of them
lived for some time in a dormitory provided for the company’s
workers. Toward the end of February, 2000, Chen suspected
she was pregnant and told her boyfriend. On March 1, 2000,
they went to a private doctor recommended by a manager at the
factory. This doctor confirmed that she was approximately one
month pregnant, although the record does not include the name



determinations in proceedings involving removal of aliens. See
REAL ID Act of 2005, § 101(a)(3), (c), and (d), 119 Stat. at
303-304. These three amendments will be codified at 8 U.S.C.
§ 1158(b)(1)(B)(iii), § 1231(b)(3)(C), and § 1229a(c)(4)(C),
respectively. However, these new standards apply only “to
applications for asylum, withholding, or other relief from
removal” made after the effective date of the Real ID Act. See

101(h)(2), 119 Stat. at 305.
  3
    Chen’s testimony was given in a Chinese dialect referred to
as “Foo Chow” and translated by an official interpreter.

                               7
of the doctor, an affidavit from the doctor, or any medical
records maintained by the doctor.
       According to Chen’s testimony, Chinese law permits 20
year-old women to marry. However, she could not marry her
boyfriend because he was not yet 22 years of age, the minimum
legal age of consent for a man. A few days after her visit to the
doctor she went to live with her paternal aunt to “hide,” having
obtained a three-month leave of absence from her employer on
the pretext of needing to care for her grandfather. This decision
was based on her belief that Chinese officials would not allow
her to have the baby.
          Chen testified that on April 20, 2000, four “village
        4
cadres” came to her aunt’s house, where Chen was hiding to
conceal her pregnancy, and told her that they had learned from
the neighbors that she was pregnant. How these neighbors or
the cadres learned of her pregnancy is not explained. She was
obviously trying to keep it a secret, and it does not appear that
her pregnancy was yet visible. Indeed, she denied being
pregnant but was told by the cadres that she still needed to go
with them and submit to a physical examination. Chen testified
that she was taken to the hospital where she was forced to
undergo an abortion. She stated that while at the hospital she


   4
    Neither Chen’s testimony nor the father’s letter make the
meaning of “village cadre” clear. The term “cadre” may be used
by asylum applicants because of its perceived negative
connotation. It appears in numerous opinions. See, e.g., Wang
v. United States, 

, 262 (3d Cir. 2005); Zheng v.
Gonzales, 

, 382 (3d Cir. 2005); Chen v. Ashcroft,

, 218 (3d Cir. 2005).

                               8
begged the cadres to let her go home and actually resisted them.
At that point, two of the cadres held her hands and a third cadre
repeatedly slapped her and called her a “shameless woman from
my village.” (AR 59.) Chen stated that she lost her will to resist
and collapsed, at which point two doctors dragged her into an
operating room and performed the abortion.

                                B.
       Corroboration is not necessarily required to establish a
petitioner’s right to asylum, and relief may be granted solely on
the credible testimony of the applicant. 8 C.F.R.
§ § 208.13(a), 208.16(b). In asylum and withholding of
removal cases, however, the BIA has adopted rules which
require corroboration in instances where it is reasonable to
expect such proof from a witness and there is no satisfactory
explanation for its absence. In re S-M-J-, 21 I. & N. Dec. 722,
Interim Decision 3303 (BIA 1997), 

. These
rules were sustained in Abdulai v. Ashcroft, 

, 551-
552 (3d Cir. 2001), in which the Court observed that even where
an applicant is credible, corroboration may be required if the
applicant is to meet her burden of proof. 

       The Real ID Act of 2005 provides that “[no] court shall
reverse a determination made by the trier of fact with respect to
the availability of corroborating evidence . . . unless the court


   5
    A credible asylum claimant may fail to meet her burden of
proof for reasons other than a lack of corroboration. See, e.g.,
Ahmed v. Ashcroft, 

, 216 (3d Cir. 2003)(credible
alien did not meet burden of proof for asylum because feared
treatment did not amount to persecution).

                                9
finds . . . that a reasonable trier of fact is compelled to conclude
that such corroborating evidence is unavailable.” § 101(e), Pub.
L. No. 109-13, 119 Stat. 231, 305, to be codified at 8 U.S.C. §
1252(b)(4)(D). This provision was effective on passage of the
REAL ID Act, May 11, 2005, and applies to any case “in which
the final administrative removal order is or was issued before,
on, or after such date.” 

119 Stat. at 305-306.
See 

n. 2. Thus, this standard of review
applies in this case.

                               C.
        Chen’s only corroboration for her version of events was
an unsworn letter from her father, who was still in China, stating
that Chen had been seized by “village cadres” from her aunt’s
home and taken to the hospital where she was forced to undergo
an abortion. (AR 125.) Not only was the father not subject to
any cross examination, but much of his affidavit appears to be
based solely on what his daughter (or others) told him.
        To support her claim Chen relies heavily on a document
which she referred to as an “abortion certificate.” (AR 72.)
She claimed that this document was issued by the hospital that
performed the abortion. The record is unclear as to when the
certificate was actually prepared or issued, even though it bears
the date April 20, 2000. Chen did not testify that the certificate
was given to her at the time of her abortion, and her testimony
indicated that she was at the hospital for only 35-40 minutes.
When asked by the IJ how she came into possession of the
certificate, Chen stated that at the request of her father it had
been brought to the United States by an unnamed cousin who
was coming to this country as an immigrant. There was no


                                10
testimony as to how the cousin actually obtained the document.6
        The IJ questioned whether this document was genuine,
or, alternatively, whether it indicated that Chen voluntarily had
an abortion. Relying on the Department of State’s China:
Profile of Asylum Claims and Country Conditions (“Country
Report”),7 dated April 14, 1998, the IJ concluded that this
certificate was not adequate proof of a forced abortion. The
Country Report notes that although official policy in China does
not authorize physical force to coerce women to submit to an


  6
    This abortion certificate was not authenticated in the manner
set forth in 8 CFR § 287.6, and Petitioner appears to have made
no effort to obtain such authentication. Although the IJ did not
rely on the absence of such authentication or attempt to bar the
certificate from evidence, it is clear that he questioned both its
authenticity and meaning. Failure to comply with § 287.6 does
not, in any case, result in a per se exclusion of documentary
evidence, and a petitioner is permitted to prove authenticity in
another manner. Liu v. Ashcroft, 

, 533 (3d Cir.
2004). However, in this case there is not only a lack of direct
evidence of the abortion certificate’s authenticity, but a lack of
evidence which might explain the circumstances or context of
the issuance of that certificate.
      7
    Reliance on Country Reports is permitted by 8 C.F.R. §§
208.12 and 240.69. Rapidly changing conditions may on
occasions render a country report’s information inaccurate. See
Berishaj v. Ashcroft, 

, 329 (3d Cir. 2004).
However, neither party in this case has offered proof of any such
change.

                               11
unwanted abortion, this practice still occurs, particularly in
certain areas of the country where population authorities are
under pressure to meet population targets.8 (AR 266.)
        According to the Country Report, the United States
Embassy in China is “unaware” of the practice of issuing
abortion certificates.9 Embassy officials are familiar with one
type of document that is generally issued upon a patient’s
request after a voluntary abortion for the purpose of supporting
a request for sick leave from work, a right provided by Chinese
law. This conclusion is consistent with the common sense
notion that government officials who force a woman to abort a
child would hardly be likely to issue a certificate attesting to that
fact, especially since the Country Report indicates that use of
such force is not official government policy. Indeed, the
existence of a hospital-issued abortion certificate might support
a reasonable inference that the abortion attested to in the
certificate was voluntary and not procured by government force.
The abortion certificate, if believed to be genuine, might support


        8
        Most Chinese asylum cases involving coercive family
planning practices come from three provinces, including Fujian
Province where Petitioner resided. The Country Report notes
that it “is not aware of any forced abortions [in Fujian Province]
. . . (but could not exclude the possibility).” (AR 269.)
    9
     The Country Report notes that in southeast China, where
Fujian Province is located, there is a major problem with false
documents. When an American Consulate General asked Fujian
officials to investigate “suspected fake documents,” 66 of 109,
“were determined to be incorrect or fake.” (AR 279-280.)

                                 12
the conclusion that Chen did undergo an abortion. However,
that a young women in Chen’s circumstances voluntarily chose
to have an abortion would hardly be an unusual event in China
given the government’s strong push for population control and
the personal predicament in which petitioner found herself, and
thus it has no probative value in establishing that any such
abortion was involuntary.
        In an adversarial system of adjudication, it is typical that
each side to the dispute has access to facts which might support
its position or contradict the assertions of the other side.
Notwithstanding the immense resources of the United States,
asylum hearings which sometimes depend on narrow and
specific factual findings often put the government at a
substantial disadvantage. In a forced abortion case the
Petitioner testifies to events which support her claim, events
which have often taken place in a remote part of the world. The
United States cannot, as a practical matter, send investigators to
interview doctors, neighbors, or family members, inspect
medical records, or use any other discovery techniques which
would be routine in domestic litigation. In this context the need
for corroboration is particularly important.
        The IJ found that the only real corroboration for
Petitioner’s story was the father’s affidavit and the abortion
certificate, a document whose authenticity he questioned and a
document which on its face is silent as to whether the abortion
referred to was procured without consent. He identified a
variety of factual areas where corroboration might have been
provided and noted that the affidavit from her father
demonstrated that there were lines of communication open with
China. As noted earlier, the purported abortion certificate was
brought to the United States by a cousin of Petitioner, who must

                                13
have been able to communicate with that cousin prior to her
departure for the United States. There is nothing in the record
to suggest that a “reasonable trier of fact” would be “compelled
to conclude that corroborating evidence is unavailable.” REAL
ID Act, § 101(e), 119 Stat. at 305. Even using the pre-REAL
ID Act standard for reviewing IJ determinations concerning the
availability of corroboration, the IJ’s finding that it was
reasonable to expect more corroboration and that there was no
satisfactory explanation for its absence was supported by
substantial evidence in the record.
        The BIA’s rule on corroboration in In re S-M-J- involves
a three step analysis: (1) an identification of facts for which it is
reasonable to expect corroboration; (2) the presence or absence
of such corroboration in the record; and (3) the adequacy of
applicant’s explanation for its absence. 

.
        In his opinion the IJ identified many factual areas where
corroboration might have been expected but was lacking,
including: (i) the authenticity and meaning of the purported
abortion certificate (there were no other hospital records
confirming that Chen had undergone an abortion on April 20,
2000); (ii) the circumstances surrounding her residence in her
aunt’s home and her forced removal to the hospital (there was
no affidavit from the aunt); 10 (iii) her leave of absence from
work during the period following the doctor’s determination that
she was pregnant (there were do documents indicating either a
request for leave or the grant of such a request); (iv) details
concerning the young man who impregnated her, including an
identity card, and some form of employment verification (“Give
me documentation that this man exists” (AR 55.)); (v)
documentation of her residency in the factory dormitory where


   10
     Although not mentioned by the IJ, there is no indication in
the record as to how the aunt’s neighbors found out she was
pregnant at such an early stage of the pregnancy.

                                 14
her relationship with her boyfriend developed, particularly since
her asylum application made no reference to her living in the
dormitory; and (vi) medical records of the doctor who
diagnosed her pregnancy.
        The IJ properly found that there were lines of
communication open between Chen and China, and there was no
real attempt to explain the absence of corroboration. The IJ
himself noted that he might understand the reluctance of a
doctor to get involved in a situation where there was a forced
abortion, but there is no indication that Chen or her family
attempted to contact the doctor to see if he or she would make
those records available. The three part analysis described in
Abdulai was properly performed. He clearly identified facts for
which it was reasonable to expect corroboration, he properly
found that such corroboration was lacking, and he analyzed the
lack of adequate explanations for Chen’s failure to produce
corroboration.

                                   D.
       In addition to finding inadequate corroboration of
Petitioner’s story, the IJ purported to find that her testimony
lacked credibility. The internal consistency of a witness’s
testimony, its consistency with other testimony, its inherent
(im)probability, as well as the witness’s tone and demeanor are
important factors in determining credibility, although excessive
focus on insignificant testimonial inconsistencies to support a
finding of lack of credibility may not be justified. See Gao v.
Ashcroft, 

, 272 (3d Cir. 2002). The Third Circuit
has also recognized that an IJ is normally in the best position to
make credibility determinations as he is “uniquely qualified to
decide whether an alien’s testimony has about it the ring of
truth.” Abdulrahman v. Ashcroft, 

, 597 (3d Cir.
2003) (quoting Sarvia-Quintamilla v. INS, 

, 1395
(9th Cir. 1985).
       It might seem intuitive that a lack of corroboration could
cast doubt on the veracity of a witness’s testimony, even a

                               15
witness whose story was delivered with an appealing demeanor,
internally consistent, and not inherently improbable. Indeed,
such a characterization might well describe the pitch of a
flimflam man. However, it is clear that the BIA’s own rule
requires a credibility determination to be independent of an
analysis of the sufficiency of an applicant’s evidence. “A failure
of proof is not a proper ground per se for an adverse credibility
determination. The latter finding is more appropriately base
upon inconsistent statements, contradictory evidence, and
inherently improbable testimony.” 

n.
6 (quoting In re S-M-J- , 

*731).
        While the IJ finds that Chen “deliberately lied in order to
obtain asylum” (AR 56), a reading of the hearing transcript and
his decision makes clear that this conclusion flows in substantial
part from a failure of proof occasioned by a lack of
corroboration. While there are some discrepancies in her
testimony, it cannot be said that his credibility determination
was based “only [on] an analysis of the internal consistency and
plausibility of [Chen’s] claim,” 

n.6, or from her
demeanor or tone in testifying. Rather, the IJ repeatedly points
to various areas where needed corroboration was lacking.
Indeed, his conclusion that she was not credible is immediately
preceded by a laundry list of areas where corroboration was
lacking. (AR 55-56.) The IJ seems to have impermissibly
blurred the line between the credibility of a claimant and the
adequacy of proof to support the claim of asylum.
        If we assume that the IJ did not make a valid credibility
determination, it does not affect the result in this case. As noted
earlier, even a credible asylum applicant may be required “to
supply corroborating evidence in order to meet [her] burden of
proof.” 

If the IJ’s decision in this case is supported
by substantial evidence in the record, then his failure to make a
valid credibility determination would not bar this Court’s denial
of the petition for review without a remand. See Kayembe v.
Ashcroft, 

, 235 (3d Cir. 2003) (“If the BIA
decision [denying asylum] can be found to be supported by

                                16
substantial evidence, even if [an alien’s] testimony is credible,
then the absence of a finding on credibility is not significant to
the disposition of the case.”).11 As noted above, both the


    11
       In Kayembe this Court reviewed a decision of the BIA
which did not merely adopt the decision of the IJ who had
denied the petition. The IJ found the applicant not credible, but
this determination was reversed by the BIA which did not,
however, do its own credibility analysis. Relying on Abdulai,
the Court found that “[i]t is possible, however, that Kayembe’s
testimony alone, even if found to be credible, may not meet his
burden of proof.” 

The BIA found inadequate
corroboration, but failed to properly perform the three part
analysis required by Abdulai. Thus, with neither a valid
credibility determination nor a valid corroboration analysis, the
matter was remanded to the BIA as its decision could not be
meaningfully reviewed. 

        In Miah v. Ashcroft, 

(3d Cir. 2003) the
matter was also remanded due to the BIA’s failure to conduct its
own proper corroboration analysis. Here the BIA reversed the
IJ’s finding of non-credibility and specifically “found Miah to
be credible.” 

The opinion contemplated that on
remand the BIA would send the case back to the IJ for a
determination of whether the IJ’s perception of the need for
corroboration would be influenced by the BIA’s finding of
credibility overruling the earlier IJ finding of non-credibility.

case there was no administrative finding of
credibility, since the BIA merely adopted the IJ’s decision.
Because the IJ’s credibility determination was itself based
primarily on a lack of corroboration, there is nothing to indicate
that on remand the IJ would modify his perceived need for
corroboration, even with the knowledge that his finding of non-
credibility was legally erroneous.. This Court is not determining
that Chen’s testimony was credible, as the BIA did in Miah, but
merely giving no weight to the IJ’s credibility finding in

                               17
Country Report’s conclusion that forced abortion is not
governmental policy in China,12 coupled with the almost total
lack of corroboration of Chen’s story, constitutes substantial
evidence sufficient to deny the petition for review.

                                 V.
        We have reviewed the record with respect to Chen’s
claims under 8 U.S.C.
§ 1231(b)(3) and the Convention Against Torture, and find that
there is an absence of substantial evidence to back either claim.
Both of these claims are based on the allegation that if Chen is
returned to China, she will be prosecuted and imprisoned for
illegally exiting China in the first instance. Chinese law barring
illegal emigration is generally applicable to all illegal emigrants
who return to China, and there is nothing in the record to
support a conclusion that either Chen would be singled out for
particularly harsh punishment or the nature of the punishment
would be severe enough to amount to persecution or torture. See
Chang v. INS, 

, 1060-61 (3d Cir. 1997); Abedini
v. INS, 

, 191 (9 th Cir. 1992).

                             VI.
       Based on the foregoing, the Petition for Review of the
decision of the IJ denying asylum under 8 U.S.C. § 1158 and
denying withholding or removal under 8 § U.S.C. 1231(b)(3)
and the Convention Against Torture is hereby denied.



reviewing the record to determine if the IJ’s decision was
supported by substantial evidence.
     12
      Although the Country Report also states that coercive
abortions may occur in some rural areas, “[j]ust because the
State Department reports cuts both ways, however, does not
mean that it does not constitute substantial evidence.”

.

                                18