Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2947




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-2947


                                 TONG JING CHEN,
                                             Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A77-341-668


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 6, 2006


       Before: SCIRICA, Chief Judge, BARRY and ALDISERT, Circuit Judges

                          (Opinion Filed: November 7, 2006 )


                                      OPINION




BARRY, Circuit Judge

      Petitioner Tong Jing Chen seeks review of a final order of the Board of

Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”)
order denying asylum, withholding of removal, and relief under the Convention Against

Torture. We have jurisdiction under 8 U.S.C. § 1252. We will deny the petition for

review.

                                               I.

       Chen, a citizen of the People’s Republic of China, entered the United States on

December 17, 2000 at the Los Angeles International Airport. An officer of the

Immigration and Naturalization Service (“INS”) detained and interviewed him. In the

interview, Chen represented that he was traveling under a false passport, that he was

seeking asylum from China’s family planning policy, and that his wife and daughter,

Chen Xi, born on August 21, 1998, remained in China.

       On December 26, 2000, in his “credible fear” interview, Chen testified that

Chinese authorities refused to register his 1998 marriage and refused to register his first

child, Chen Xi. He stated that in his village he is permitted to have two children, but due

to the state’s refusal to register his first child, he cannot legally have a second child.

Therefore, he testified, when his wife became pregnant for a second time in July 2000,

authorities sought to arrest him and require that either he or his wife be sterilized. As a

result, his wife went into hiding and he came to the United States.

       At a merits hearing before the IJ on September 20, 2002, Chen’s testimony

differed materially from his previous statements to INS officials. He testified that he was

married on May 22, 1995 and had two children from this marriage: a daughter, Cheng



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Chen, born on August 21, 1996, and a son, Cheng Jing Wai, born on February 23, 1998.

Chinese authorities threatened him with sterilization in 1997, he claimed, and did in fact

sterilize his wife in 1999. He attributed his decision to come to the United States to his

persecution for having two children. He also testified, for the first time, that Chinese

authorities had detained his father because of Chen’s unregistered marriage and children.

       In a December 5, 2002 oral decision and order, the IJ denied Chen’s application

for asylum, withholding of removal, and relief under the Convention Against Torture.

The IJ cited discrepancies between Chen’s three statements, found that several of his

explanations and assertions were not credible, and noted that evidence of his wife’s

alleged sterilization was not competent. In his timely appeal to the BIA, Chen contested

the propriety of the IJ’s reliance on statements he made at his airport and credible fear

interviews, but did not otherwise attempt to explain the inconsistencies in the record. The

BIA dismissed the appeal in a December 9, 2004 opinion and order, finding no error in

the IJ’s reliance on Chen’s airport and credible fear interviews. Chen timely petitioned

for review of the adverse credibility determination.

                                             II.

       An alien may qualify for political asylum if he or she can demonstrate past

persecution or a well-founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion. Gao v.

Ashcroft, 

, 271-72 (3d Cir. 2002). Withholding of removal requires the



                                             3
applicant to establish a clear probability of persecution in the proposed country of

deportation. Gabuniya v. Attorney General, 

, 320-21 (3d Cir. 2006). To

obtain relief under the Convention Against Torture, an applicant must demonstrate that it

is more likely than not that he or she will be tortured in the proposed country of

deportation. Obale v. Attorney General, 

, 161 (3d Cir. 2006). Each basis for

relief requires, at minimum, credible testimony. See 

.

       We review adverse credibility determinations for substantial evidence. He Chun

Chen v. Ashcroft, 

, 222 (3d Cir. 2004). Credibility determinations must be

grounded in reasonable, substantial, and probative evidence of record and supported by

specific, cogent reasoning. Tarrawally v. Ashcroft, 

, 184 (3d Cir. 2003);

Abdulrahman v. Ashcroft, 

, 597 (3d Cir. 2003). We may not disturb a

credibility determination unless no reasonable person would have found the applicant

incredible. He Chun 

.

       Chen faults the IJ for placing too little emphasis on his detailed statement at the

merits hearing while focusing on “omissions” in his airport and credible fear interviews.

Although we have occasionally expressed skepticism over the reliability of airport

interviews, see Dia v. Ashcroft, 

, 257 (3d Cir. 2003), we have found that

they may serve as the basis for an adverse credibility determination when the applicant

clearly understood the questions posed and his answers went to the heart of his claim. See

He Chun 

. We also routinely find that statements given during a



                                              4
credible fear interview may support an adverse credibility determination.

       The record reveals not only “omissions,” as Chen contends, but key discrepancies

that go to the heart of his claim. We think it reasonable to expect an asylum seeker

claiming persecution based on his family and marital status to provide consistent answers

to such basic questions as the number, names, and approximate ages of his children, the

year of his marriage, and whether his wife has been sterilized. Here, however, we find

two distinct versions of these key facts. Chen presented the first version in his airport

interview. Nine days later, he substantially corroborated his original statement. Then, at

the merits hearing nearly two years later, Chen presented a strikingly different picture of

his family circumstances. Purported fatigue and nervousness do not explain how, in one

version, Chen’s wife is pregnant, and in the other, she is sterilized, or how his children’s

names and ages mysteriously change. Yet Chen offers no other explanation.

       In all instances, immigration officials interviewed Chen in either his native

language of Foo Chow or in Mandarin, a language he also speaks. Our review of the

transcript satisfies us that in each interview, Chen fully understood the questions asked of

him. Therefore, we have little difficulty finding that substantial evidence in the record

supports the adverse credibility determination.

                                             III.

       For the foregoing reasons, we will deny the petition for review.




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