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


9-12-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3834




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                                                    NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                       No. 04-3834


                  RUI LIANG CHEN,

                                       Petitioner
                             v.

              *ALBERTO R. GONZALES,
          Attorney General of the United States,
                        Respondent

  (*Substituted pursuant to Rule 43(c), Fed. R. App. P.)




          Petition for Review of an Order of the
           United States Department of Justice
              Board of Immigration Appeals
                 (BIA No. A95-162-273)


       Submitted Under Third Circuit LAR 34.1(a)
                    June 30, 2005

Before: RENDELL, BARRY, and BECKER, Circuit Judges.

               (Filed September 12, 2005)




              OPINION OF THE COURT
RENDELL, Circuit Judge.

       Ruiliang Chen, a native and citizen of China, petitions for review of a decision by

the Board of Immigration Appeals (“BIA”) denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”).

Our jurisdiction arises under 8 U.S.C. § 1252. For the reasons that follow, we will deny

the petition for review.

                                               I.

       As we write only for the parties, we will include only those facts relevant to the

issues now before us. Chen entered the United States on July 11, 2001 without proper

documentation, and on September 27, 2001, he filed an application for asylum. In his

application, Chen claimed that he had suffered persecution based on “religion,”

“membership in a particular social group,” and “political opinion.” Specifically, he

claimed that he had been persecuted by the Chinese government for organizing and

participating in activities for a Christian church.

       Chen explained that he adopted Christianity after attending a private unregistered

church in China in December 1998. Due to the significant distance of his home from that

church, he twice attended a closer, registered church. He ceased attending services at the

registered church, however, because of its emphasis on “political propaganda.” In the

autumn of 1999, government officials visited the unregistered church and warned the

parishioners that their activities were illegal and that they must stop. The parishioners



                                               2
changed the location of their services and continued their activities.

       Chen testified that he began hosting worship services for church members in his

own home in early 2000, and several people came to the weekly gatherings. When

government officials discovered the activities at his house, they warned him to stop.

After this first warning, Chen changed the day on which he hosted services at his house

from Sunday to Saturday. After he was warned a second time, Chen changed the time of

day of the services. In all, Chen claimed that he was warned five or six times and that

each time the authorities took his name. Chen testified that in the autumn of 2000, he was

warned again to cease hosting meetings or the consequences would be severe. At this

time, his work unit was notified of his involvement in these “illegal activities,” and his

employer also directed him to stop.

       Chen testified that on Good Friday 2001, in the midst of services at his home, five

or six government officials entered and arrested him. He stated that he was taken to a

facility where he was interrogated and informed that his actions were illegal. He testified

that during a day-long detention, the officials kicked and punched him. They forced him

to sign a confession and required him to report for questioning once a month to monitor

his activities. Chen went to two of these appointments before leaving China for the

United States.

       Chen testified that he continues to practice his religion in the United States and

that he attends a church in Flushing, New York. He provided the address of the church



                                              3
and asserts that at the services he attends there he reads the Bible and sings hymns.

                                             II.

       The Immigration Judge (“IJ”) denied Chen’s application based on his

determination that Chen failed to meet the burden of proof for asylum and that his claim

presented “credibility problems.” Specifically, the IJ found that Chen’s claim was

undermined by the fact that he changed the venue of the immigration proceedings from

New York–which was closer to his church and any potential witnesses he could call to

support his claim–to New Jersey–which was closer to his home and job. (A48.) Indeed,

the IJ noted that even though Chen’s claim had been once denied by the INS, he presented

no witnesses or affidavits from his pastor or members of his congregation to bolster his

claim and corroborate his current participation in church activities. (A49.)

       More specifically regarding his credibility, the IJ found significant an

inconsistency between Chen’s testimony and his application; in his application, Chen

claimed a fear of persecution because he left China illegally, but in his testimony, Chen

claimed he feared persecution because he did not report for questioning after he left the

country. (A50.) The IJ also did not believe that Chen would get five or six warnings

from Chinese government officials to stop his activities with the unregistered church

before being detained and beaten. (A50-51.) Additionally, the “enthusiasm” and

“fervor” for religion that Chen expressed in his application were not at all apparent in his

demeanor during his testimony, nor was there any corroboration of Chen’s claim in his



                                             4
application that he wished “to spread [the] Gospel” in the United States. (A51.) The IJ

further noted: (1) that Chen’s rationale for leaving the registered church because of the

“political propaganda” was “extremely weak and not very persuasive”; (2) that Chen’s

claim that he did not move the location of his activities from his own home to a different

location after warnings by government officials was “not persuasive and also reflects

poorly on his credibility”; and (3) that Chen’s statement in his application that the

authorities were still harassing his parents regarding his whereabouts was “totally

unpersuasive,” “incredible,” and “unbelievable.” (A51.)

       The BIA affirmed and adopted the decision of the IJ, noting that the Board’s

conclusions upon review of the record coincided with those articulated by the IJ. (A2.)

Specifically, the Board determined that the IJ’s conclusion that Chen had not met his

burden of proving past persecution or a reasonable fear of future persecution was not

clearly erroneous, and Chen had not met his burden of proving eligibility for the relief of

withholding of removal or CAT protection. Accordingly, the Board dismissed the appeal.

       Chen now seeks review of the BIA’s decision.

                                             III.

       The Attorney General may grant asylum to any alien who is unable or unwilling to

return to his or her home 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)(A). The burden of proving



                                              5
eligibility for asylum lies with the applicant. Gao v. Ashcroft, 

, 272 (3d Cir.

2002). To establish eligibility for asylum, an applicant must demonstrate past persecution

by substantial evidence or a well-founded fear of future persecution that is both

subjectively and objectively reasonable. Lukwago v. INS, 

, 177 (3d Cir.

2003).

         Where the BIA defers to the IJ by adopting and affirming the IJ’s decision, we

review the IJ’s decision to assess whether the BIA’s decision to defer was appropriate.

Abdulai v. Ashcroft, 

, 549 n.2 (3d Cir. 2001). Whether an asylum applicant

has met his burden of proof is a factual determination, and we review this determination

under the substantial evidence standard. 

. We apply the same

standard in reviewing an adverse credibility determination. Dia v. Ashcroft, 

, 247 (3d Cir. 2003) (en banc). Under this standard of review, we may reverse the IJ’s

findings only if “any reasonable adjudicator [would] be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B). “We will not disturb the IJ’s credibility

determination and findings of fact if they are ‘supported by reasonable, substantial and

probative evidence on the record considered as a whole.’” 1 Tarrawally v. Ashcroft, 338




  1
    Section 101(a)(3) of the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 305,
amends 8 U.S.C. § 1158(b)(1) by adding new provisions concerning the alien’s burden of
proof. That section “takes effect on the date of the enactment of this division and shall
apply to applications for asylum, withholding, or other relief from removal made on or
after such date.” Real ID Act of 2005 § 101(h)(2). Because Chen filed his application in
September 2001, this section of the Real ID Act does not apply.

                                              

, 184 (3d Cir. 2003) (quoting Balasubramanrim v. INS, 

, 161 (3d

Cir. 1998)).

                                              IV.

       On appeal, Chen argues that the IJ erred in determining that his testimony was not

credible and that he did not adequately prove his eligibility for asylum. He maintains that

the IJ did not properly consider a number of specific portions of his testimony. Many of

the facts Chen reiterates in his brief, however, were expressly mentioned by the IJ and

discredited as either not credible or not compelling.

       For example, Chen asserts that the IJ did not mention that he was arrested,

detained, and beaten for his religious beliefs (Pet’r Br. at 10), yet the IJ specifically noted

this in the finding of facts regarding the events of Good Friday 2001 (A45) and again

commented on these assertions when questioning whether it was believable that police

would give Chen so many warnings before resorting to violence (A50). Chen also argues

that the IJ erred in discounting what amounted to “two full pages of testimony” in the

hearing transcript where Chen answered questions about Christianity as evidence of his

faith. (Pet’r Br. at 11.) The IJ’s assessment of these questions as “rudimentary” and “not

impressive” is, however, not unreasonable, given that they were probative only of a basic

knowledge of Christianity–not necessarily of Chen’s history of practice–and given that

they were asked on direct examination and Chen was not cross-examined on them. (A93-

94.) Chen further alleges that the IJ did not consider certain reports and news articles he



                                               7
submitted indicating, inter alia, that the Chinese government supervised religious practice

by citizens; scrutinized and repressed unregistered and unapproved religious and spiritual

groups; harassed, interrogated, detained, and physically abused leaders of such groups;

and destroyed or seized unregistered places of worship. (Pet’r Br. at 12-13.) Although

the IJ did not mention these documents other than to note that they were admitted into

evidence (A43), none of the IJ’s conclusions regarding Chen’s credibility or failure to

carry his burden of proof were necessarily inconsistent with the portions of these

documents that Chen cites. The IJ’s adverse credibility determination was based on his

disbelief of certain aspects of Chen’s personal story, not his disbelief that Christians were

subject to persecution in China. Indeed, many of the IJ’s findings indicated that he did

believe religious persecution existed in China; rather, the IJ disbelieved Chen’s assertions

that in light of the sustained religious repression, he received several warnings to dissolve

his unregistered church (A51), and that Chen did not move the location of his activities

from his own home to a different location after he received the warnings (A52).

       Chen challenges these findings of the IJ as speculative, arguing that the IJ had no

reasonable basis for doubting that Chen would get several warnings from government

officials or that the officials were still harassing his parents. (Pet’r Br. at 14-17.)

However, we believe the IJ’s findings regarding Chen’s credibility had adequate support

in the record under a substantial evidence standard. Under our precedent, we have stated

that an IJ must support adverse credibility findings with “specific[,] cogent reasons,” Dia,



                                               

(quoting 

), and such findings must be

“‘appropriately based on inconsistent statements, contradictory evidences, and inherently

improbable testimony . . . in view of the background evidence on country conditions.’”

re S-M-J-(Interim Decision), 21 I. & N. Dec. 722 (BIA 1997)). As we

have noted above, the IJ’s conclusions were not inconsistent with the background

information Chen submitted. Rather, the IJ found certain portions of Chen’s story to be

inconsistent with the general country conditions that Chen himself described. In other

words, given the climate of strict supervision of religious practice and repression of

unregistered organizations that Chen described, it was inconsistent and “inherently

improbable” that he would be given several warnings to discontinue his activities or that

upon discovery by government officials he would not move the location of the activities

from his own home to a different location.

       Lastly, Chen challenges the IJ’s focus on his continued religious practice in the

United States and the IJ’s conclusion that his practice should not only have continued, but

flourished. (Pet’r Br. at 15.) We view the IJ’s focus on this point as bearing on Chen’s

credibility. The IJ found that Chen’s asylum application, which expressed a “feeling of

fervor, of enthusiasm for the religion” as well as a desire “to spread [the] Gospel” was

inconsistent with his demeanor at the hearing, his testimony regarding the change of

venue for the proceedings, and the fact that he produced no witnesses or affidavits to

corroborate his continued practice. The IJ appropriately considered the lack of evidence



                                             9
of Chen’s claim of continued religious practice–evidence that would logically seem to

have been readily accessible and easy to produce–as bearing on his credibility, and we

believe the IJ’s conclusions here to be reasonable and adequately supported by the record.

       As we stated in Jishiashvili v. Attorney General of the United States, 

,

392 (3d Cir. 2005), “where the [asylum] applicant is the only testifying witness, much

depends on what the applicant says and how he says it.” Although Chen’s testimony

alone could be legally sufficient to sustain his claim, see 8 C.F.R. § 208.13(a), we do not

find it to be sufficiently “credible, persuasive, and specific” to do so. 

. Furthermore, with such scant corroborative evidence in the record,2 we

are unable to conclude that a reasonable adjudicator would be compelled to conclusions

contrary to those of the IJ. Abdille v. Ashcroft, 

, 483-84 (3d Cir. 2001)

(“Under the substantial evidence standard, [a factual] finding must be upheld unless the

evidence not only supports a contrary conclusion, but compels it.”).3

  2
   We note, although the IJ did not, that there was no evidence as to the actual injuries
sustained by Chen, or as to his treatment and hospitalization. Nor was there any evidence
that his parents–at whose home the services were being held–were subjected to any verbal
or physical warning.
  3
    Judge Becker’s vote to deny the petition for review is predicated solely on the lack of
evidence of Chen’s continued religious practice in the United States. He agrees that the
IJ’s conclusions about demeanor and the fact that Chen produced no witnesses or
affidavits to corroborate his continuous practice (that would seem to have been readily
accessible), support the IJ’s discrediting Chen’s testimony about the asserted basis for
Chen’s seeking asylum, including his testimony about what occurred in China.
       Judge Becker, however, believes that the IJ’s statement that it was “essential” that
an individual who came to the United States because of religious persecution must adduce
persuasive evidence that his practice of religion has not only continued in the United

                                             10
                                            V.

       Accordingly, we will deny the petition for review.




States but “flourished”–is legally incorrect. The standard for asylum based on religious
persecution does not require any fervency of religious belief; rather, the INS regulations
state only that an applicant must show “inclusion in, and identification with” a group
which has suffered a pattern or practice of persecution. See8 C.F.R. §
208.13(b)(2)(iii)(B) (setting the standard for establishing a well-founded fear of future
persecution). The central inquiry, therefore, is not with the “heart of the convert” but
with the “bonafide indicia” of religious belief or membership which would trigger
persecution by the alien’s government. See Najafi v. INS, 

, 949 (7th Cir.
1997); see also Chen v. Ashcroft, 85 Fed. Appx. 44, 47 (9th Cir. 2003) (unpublished
opinion) (“[T]here is no inconsistency between fleeing a country because one is
persecuted or fears persecution due to one’s religious practice and not practicing devoutly
after leaving.”).
        Additionally Judge Becker believes that the other adverse credibility
determinations made by the IJ are not supported by the record.


                                            11