Filed: Sep. 10, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1080 PIN ZHUANG CHEN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: September 2, 2014 Decided: September 10, 2014 Before KING and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition granted by unpublished per curiam opinion. Troy Nader Moslemi, MOSLEMI & ASSOCIATES, New York, New York, for Petitioner. Stu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1080 PIN ZHUANG CHEN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: September 2, 2014 Decided: September 10, 2014 Before KING and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition granted by unpublished per curiam opinion. Troy Nader Moslemi, MOSLEMI & ASSOCIATES, New York, New York, for Petitioner. Stua..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1080
PIN ZHUANG CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 2, 2014 Decided: September 10, 2014
Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition granted by unpublished per curiam opinion.
Troy Nader Moslemi, MOSLEMI & ASSOCIATES, New York, New York,
for Petitioner. Stuart F. Delery, Assistant Attorney General,
Linda S. Wernery, Assistant Director, Susan Bennett Green,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pin Zhuang Chen, a native and citizen of the People’s
Republic of China, petitions for review of the decision of the
Board of Immigration Appeals (“Board”) dismissing his appeal
from the immigration judge’s (“IJ”) order denying his
applications for asylum, withholding of removal and withholding
under the Convention Against Torture. Because we find that the
adverse credibility finding that formed the foundation for the
Board’s decision is not supported by substantial evidence, we
grant the petition for review, vacate the Board’s order and
remand for further proceedings.
The Immigration and Nationality Act (“INA”) authorizes
the Secretary of the Department of Homeland Security or the
Attorney General to confer asylum on any alien who establishes
refugee status. See 8 U.S.C. § 1158(b)(1)(A) (2012); Hui Pan v.
Holder, 737 F.3d 921, 927 (4th Cir. 2013). The alien bears the
burden of proof and must establish either past persecution or a
well founded fear of future persecution on account of a
protected ground. See 8 U.S.C. § 1101(a)(42)(A) (2012); Hui
Pan, 737 F.3d at 927.
Under the REAL ID Act, an IJ, after “[c]onsidering the
totality of the circumstances, and all relevant factors,” may
make an adverse credibility determination based on factors such
as the plausibility of the applicant’s account, the consistency
2
between the applicant’s written and oral statements, the
internal consistency of each such statement, the consistency of
such statements with other evidence of record, or any other
relevant factor. 8 U.S.C. § 1158(b)(1)(B)(iii); Hui Pan, 737
F.3d at 928. A credibility determination may rest on any
relevant factor even if such factor does not “go[ ] to the heart
of the applicant’s claim.”
Id. The REAL ID Act’s credibility
provision affords a flexible, “commonsense approach while taking
into consideration the individual circumstances of the . . .
applicant.” Singh v. Holder,
699 F.3d 321, 329 (4th Cir. 2012)
(internal quotation marks omitted). It also ensures that an IJ
does not “cherry pick solely facts favoring an adverse
credibility determination while ignoring facts that undermine
that result.” Hui
Pan, 737 F.3d at 928 (internal quotation
marks omitted); see also Shah v. Attorney Gen. of the U.S.,
446
F.3d 429, 437 (3d Cir. 2006) (“Although we don’t expect an
Immigration Judge to search for ways to sustain an alien’s
testimony, neither do we expect the judge to search for ways to
undermine and belittle it. Nor do we expect a judge to
selectively consider evidence, ignoring that evidence that
corroborates an alien’s claims and calls into question the
conclusion the judge is attempting to reach.” (citation and
internal quotation marks omitted)). When there is an adverse
credibility finding, we “must assess whether the IJ or [the
3
Board] identified non-speculative, ‘specific, cogent reason[s]’
in support of the adverse credibility finding.” Hui Pan, 737
F.3d at 928 (quoting Dankam v. Gonzales,
495 F.3d 113, 120–21
(4th Cir. 2007) (internal quotation marks omitted)).
The scope of our review is narrow. Hui Pan, 737 F.3d
at 926. We will affirm so long as the decision is not
manifestly contrary to law.
Id. An adverse credibility finding
is reviewed for substantial evidence.
Id. “[A]dministrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B) (2012). If an adverse credibility
finding is based on speculation and conjecture rather than
specific and cogent reasoning, it is not supported by
substantial evidence. See Tewabe v. Gonzales,
446 F.3d 533, 538
(4th Cir. 2006). An adverse credibility finding is “generally
fatal” to an asylum claim unless the applicant submits
sufficient evidence independent of his testimony. Hui
Pan, 737
F.3d at 930. Because the Board did not adopt the IJ’s order,
our review here is limited to the Board’s decision. Martinez v.
Holder,
740 F.3d 902, 908 & n.1 (4th Cir. 2014).
Chen testified that he was persecuted after he was
arrested during an illegal underground Christian church service
at a church member’s home. He testified that he was kicked,
punched and beaten with rubber batons by police and then
4
detained for thirty days, with no more beatings. Chen stated
that after his release from detention, he came to the United
States so that he could freely practice his faith.
The IJ denied Chen’s applications for relief after
making an adverse credibility finding. The IJ based the adverse
credibility finding “principally” upon the conclusion that Chen
did not submit credible evidence showing that he practiced his
Christian faith after arriving in the United States. (Joint
Appendix (“J.A.”) at 99). Also critical to the IJ’s
determination was an impromptu telephone conversation the IJ had
with Pastor Wong from the Chinese Promise Baptist Church in
Brooklyn, New York. Pastor Wong submitted a letter stating that
Chen had participated in church services and indicated that he
was available by telephone if there were further questions.
Chen had testified that Pastor Wong and he were good friends.
During the telephone conversation with the IJ, Pastor Wong could
not recall Chen and indicated that he wrote many letters for
parishioners and that some parishioners would come once or twice
and not return. The IJ also took issue with Chen’s testimony
regarding the injuries he suffered as a result of the alleged
beating and the number of Bibles that were confiscated by the
police when the underground church service was raided.
The Board identified four of the IJ’s findings in
support of its conclusion that the IJ’s adverse credibility
5
determination was not clearly erroneous: (1) Chen initially
testified that his underground church had only one Bible that
was shared by participants, but testified later that the police
confiscated ten Bibles; (2) it was implausible that Chen had
bruises all over his body when he was released from custody
after being beaten only once on the first day of his thirty-day
detention; (3) Chen claimed to be good friends with Pastor Wong
and yet Wong had no personal knowledge of him; and (4) it was
inconsistent for Chen to claim he came to the United States to
freely practice his religion, but he had not attended church
services since moving to North Carolina nine months before the
hearing. We will discuss each reason in turn.
Chen testified that he did not own a Bible when he was
in China, but that the church leader had one Bible that was
shared by church members. He also testified that newcomers to
the church did not have Bibles, but that the church leader would
sometimes receive Bibles that he would then sell to some of the
members. Chen also testified that the Bibles that were
confiscated by the police belonged to the individual members.
The Board and the IJ relied upon Chen’s response to a question
concerning whether he owned a Bible in China. Chen said that
the church leader had a copy, and “we did not.” (J.A. at 133).
He later testified that the police confiscated ten Bibles when
they raided the underground church service.
6
The Board and the IJ concluded that Chen’s testimony
was inconsistent because he testified there was only one Bible
and yet ten were supposedly confiscated by the police. Our
review of the record does not support such a conclusion. Chen’s
testimony that “we did not” have a Bible was not in response to
a question regarding whether any church members had Bibles; and
without further questioning it was an unsupported assumption to
conclude that none of the church members on the day of the
police raid had his or her own Bible. What Chen’s testimony
shows is that he did not own a Bible, that the church leader had
a Bible that could be shared, that other members also did not
own a Bible and that some members had Bibles that were bought
from the church leader. We conclude that the Board’s adverse
credibility finding in this regard is not supported by
substantial evidence.
We also conclude that substantial evidence does not
support the finding that it was implausible that Chen would have
bruises all over his body when he was released from detention.
Chen acknowledged that some of his bruises had healed during the
thirty-day period, but others remained. The IJ acknowledged
that Chen may have “mild signs” of bruising after his release,
but that it “strain[ed] credibility” to believe Chen “was
covered essentially all over his body with bruises.” (J.A. at
97). We note that the IJ found that Chen did not claim that the
7
beating was severe. (J.A. at 98). However, Chen did exactly
that by testifying that the beating was “very severe.” (J.A. at
141).
We have reviewed Chen’s testimony and conclude that
the Board’s and the IJ’s findings in this regard are not
supported by specific and cogent reasons. We have held that
“the requirement that an IJ provide a specific and cogent reason
for an adverse credibility finding leaves ample room for the IJ
to exercise common sense in rejecting an applicant’s testimony
even if the IJ cannot point to contrary evidence in the record
to refute it.” Tewabe, 446 F.3d at 540 (internal quotation
marks and alterations omitted). However, “[t]he point at which
a [credibility] finding . . . ceases to be sustainable as
reasonable and, instead, is justifiably labeled ‘speculation,’
in the absence of an IJ’s adequate explanation, cannot be
located with precision.” Ming Xia Chen v. BIA,
435 F.3d 141,
145 (2d Cir. 2006). In this instance, Chen testified that he
suffered a severe beating by three guards, that he was
subsequently detained for thirty days during which he was not
treated for his injuries, and that when he was released some
bruises had healed and others all over his body had remained.
Without additional evidence, we cannot conclude that Chen’s
testimony was implausible and we are compelled to decide that
this credibility finding Chen is not supported by the record.
8
Also, we conclude that reliance on the IJ’s telephone
conversation with Pastor Wong in order to sustain the adverse
credibility finding is not supported by substantial evidence.
The Board found no clear error with the finding that Pastor Wong
had no personal knowledge of Chen. A review of the transcript
of the telephone call shows that Wong was asked only once if he
knew Chen, to which he replied he did not know the person, and
that response was given at the beginning of the telephone call
before Wong asked to have the spelling of Chen’s name. (J.A. at
171). As Wong appeared to be attempting to determine the nature
of the telephone call, he asked if the IJ was inquiring about
“the Chen come to my church,” suggesting that perhaps Wong did
know of a Chen that attended his church. (Id.). The IJ had to
ask Wong five times to verify his own identity. (J.A. at 170-
71). The IJ and Wong required several interchanges even to
spell Chen’s name for Wong. (J.A. at 171-72). Also, Wong was
not given anything to refresh his memory, such as a copy of the
letter or one of the photographs Chen submitted showing Chen
with Wong. He also had no advance notice of the telephone call.
(J.A. at 327). Nor was Wong subject to cross-examination.
Furthermore, Wong’s corroborating letter was written almost
eighteen months before the merits hearing, and Chen testified
that he last attended church in New York in April 2009, almost a
year before the hearing.
9
Based on our review of the record, we conclude that
the finding that Wong had no personal knowledge of Chen is not
supported by substantial evidence.
We also conclude that it was not inconsistent for Chen
to claim that he came to the United States to freely practice
his religion and yet had not attended church services since
moving to North Carolina nine months before the hearing. It is
difficult to determine the sincerity of an alien’s religious
belief. See Nasir v. INS, 122 F.3d 484, 487 (7th Cir. 1997)
(acknowledging difficulty judges have assessing one’s sincerity
about religious beliefs); Mejia-Paiz v. INS,
111 F.3d 720, 729
(9th Cir. 1997) (a less than extremely devout church member may
still qualify for asylum if he may still face persecution on
account of imputed religious belief). A failure to openly
practice religion in some circumstances may not indicate a lack
of sincerity. See, e.g., Singh v. Holder,
720 F.3d 635, 644
(7th Cir. 2013) (“[A] sincere religious believer doesn’t forfeit
his religious rights merely because he is not scrupulous in his
observance; for where would religion be without its backsliders,
penitents, and prodigal sons?”) (internal quotation marks
omitted).
Here, Chen’s intention for coming to the United States
was formed in China. At that time, Chen could not have
appreciated the reality of being an undocumented alien in the
10
United States and the difficulties of attending a Chinese-
speaking church in North Carolina. Chen testified that he did
not attend church because (1) he did not have transportation or
a driver’s license and there was no one who could drive him to
church; (2) his shift on Sundays started at 11:00 a.m. and ended
at midnight; (3) he does not have immigration status and he is
afraid to go anywhere; and (4) he still owes more than $60,000
of the $75,000 that was paid to the snakehead to smuggle him
into the United States. Chen also testified that when he has
returned to New York, he has gone to church.
The IJ noted that “[t]here are many Christian churches
that hold services on Friday nights or during the week.” (J.A.
at 95). However, the Chinese Christian church in Winston-Salem
only indicated that it had services on Sundays at 10:45 a.m.
(J.A. at 215). There was no evidence of any church, much less
one offering services in Chinese, that could accommodate Chen’s
schedule. The IJ may rely upon common sense in reaching an
adverse credibility finding, but should take into consideration
the alien’s circumstances. Singh, 699 F.3d at 329. We conclude
that Chen’s circumstances as revealed by his testimony did not
render his stated intention for coming to the United States
sufficiently inconsistent with his actions to support an adverse
credibility finding.
11
The Board also agreed with the IJ that Chen failed to
provide corroborating evidence from friends and fellow
parishioners regarding his church attendance in New York. We
note that Pastor Wong’s corroborating letter was discredited as
a result of the telephone conversation that we conclude was
unreliable. We fail to see how the balance would have shifted
favorably toward Chen even if he had provided corroborating
letters from friends and fellow parishioners regarding his
church activities. See Djadjou v. Holder, 662 F.3d 265, 276
(4th Cir. 2011) (letters from family and friends not objective
corroborating evidence).
Accordingly, we conclude that the adverse credibility
finding is not supported by substantial evidence and we grant
the petition for review, vacate the Board’s order and remand for
further proceedings consistent with this opinion. * We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION GRANTED
*
We express no opinion as to the ultimate disposition of
Chen’s case.
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