Judges: Per Curiam
Filed: Oct. 19, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued August 4, 2009 Decided October 19, 2009 Before JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE P. WOOD, Circuit Judge No. 09-1062 YOU KE CHEN, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A099-025-234 ERIC H. HOLDER, JR., Attorney General of the United States, Respon
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued August 4, 2009 Decided October 19, 2009 Before JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE P. WOOD, Circuit Judge No. 09-1062 YOU KE CHEN, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A099-025-234 ERIC H. HOLDER, JR., Attorney General of the United States, Respond..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 4, 2009
Decided October 19, 2009
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐1062
YOU KE CHEN, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A099‐025‐234
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
O R D E R
You Ke Chen, a Chinese national from Fujian province, sought asylum in the United
States, alleging that family‐planning officials threatened to sterilize him and forcibly abort
his wife’s pregnancy for violating China’s one‐child policy. The Immigration Judge and the
Board of Immigration Appeals denied his petition for asylum, concluding that Chen had not
testified credibly—based, in part, on inconsistencies between testimony he gave at his
credible‐fear interview and at his administrative hearing, but also because Chen presented
no evidence contradicting a State Department report stating that abortion certificates, like
No. 09‐1062 Page 2
the one he submitted, are not given for involuntary abortions. We deny the petition for
review.
Chen based his application for asylum on an incident with family‐planning officials
that he says sparked his flight from China. In the application he said that the officials
learned that his wife had become pregnant with a second child in violation of the family‐
planning policies and came looking for her. His wife, though, fled before their arrival.
When they arrived, Chen said they kicked in the door and later slapped him twice when he
denied knowing his wife’s whereabouts. He said the officials threatened to detain and
sterilize him, but he managed to escape as he was being handcuffed. Chen stated that he
remained in hiding until a friend convinced him that fleeing to the United States was a way
of avoiding capture and eventual sterilization. The incident resisting family‐planning
officials, Chen claimed, qualified as past persecution and also supported a fear of future
persecution were he returned to China.
Chen gave a new story, however, at his asylum hearing. There he testified that his
wife had undergone an abortion, and he claimed asylum as the spouse of a woman whose
pregnancy had been aborted forcibly. He testified that, after filing his asylum application,
he received a letter from his wife stating that the family‐planning officials had found her
and aborted her pregnancy against her will. As proof, Chen submitted the letter and a
certificate stating that she had an abortion on March 29, 2006.
The IJ denied Chen’s application for asylum in an oral decision. Relying on
inconsistencies in Chen’s testimony and the record, the IJ concluded that Chen was not
credible and had not established that his wife’s pregnancy was aborted forcibly.
Alternatively, the IJ stated that even if he had found Chen credible, he still would have
denied the application based on a lack of corroborating evidence.
Chen appealed to the BIA, which affirmed the IJ’s decision in a separate order. It
found no clear error in the IJ’s adverse credibility finding, and singled out what it deemed
to be the most persuasive inconsistencies identified by the IJ. For example, Chen bungled
his son’s age: at his April 2006 credible‐fear interview, he said that his son was eighteen, but
according to the birth certificate he submitted, his son was born in May 1999—which would
have made him just shy of seven. Additionally, Chen had testified inconsistently regarding
the attack he suffered at the hands of officials: the BIA noted Chen’s statement at his
credible‐fear interview that two officials attacked and threatened him with an “electric
shock,” but at the hearing, Chen stated that he was attacked by four or five people and he
did not mention any electric shock. The BIA also declined to credit the abortion certificate
as proof that Chen’s wife suffered an involuntary abortion, given that Chen did not refute
No. 09‐1062 Page 3
the State Department’s report on country conditions in the record reflecting that such
certificates are provided only for voluntary abortions.
Because the BIA issued a detailed order affirming, but not expressly adopting, the
IJ’s decision, we review the BIA’s decision alone.1 Moab v. Gonzales, 500 F.3d 656, 659 (7th
Cir. 2007). An applicant’s credibility is determined by the totality of the circumstances,
including any oral or written statements (whether or not made under oath) and reports
from the Department of State on country conditions. 8 U.S.C. § 1158(b)(1)(B)(iii). We
review factual findings for substantial evidence, Krishnapillai v. Holder, 563 F.3d 606, 615 (7th
Cir. 2009), overturning an agency’s finding only if the evidence compels a contrary
conclusion, Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir. 2004). And an adverse credibility
determination, which we give substantial deference, will virtually doom an application for
asylum. Musollari v. Mukasey, 545 F.3d 505, 508 (7th Cir. 2008).
Chen now contends that the adverse credibility finding is unsupported because, in
his view, the IJ overemphasized minor factual discrepancies, such as those concerning his
son’s age and the number of officials who attacked him at his house. He notes that parents
commonly misstate their children’s ages and adds that “airport statements” are unreliable.
But Chen fails to recognize that the BIA responded to this argument and rejected it.
The BIA acknowledged that those two inconsistencies alone might not have sustained the
adverse credibility finding, but concluded that the cumulative impact of other discrepancies
in the record were sufficient to uphold it. As for Chen’s “airport statements,” we note that
he actually made his comment about the number of officials during his credible‐fear
interview, which took place two weeks after he had been detained, and he gave no reason to
doubt the reliability of the interview beyond he was “in a bad mood” and “could not
focus.”
Chen also takes issue with the IJ’s insistence on corroborating evidence. But the IJ’s
ruling—an alternative basis for his decision, we note—is not before us on review because
the BIA issued a separate opinion that did not rely on the lack of corroboration. See
Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir. 2004).
Chen next—again without referring to the BIA’s decision—attacks the IJ for invoking
Huang v. Gonzales, 453 F.3d 942 (7th Cir. 2006), as authority for the sweeping proposition
1
Puzzlingly, Chen devotes the bulk of his brief to challenging the decision of the IJ,
not the BIA’s—even though the Board issued a separate order that was detailed and
reasoned.
No. 09‐1062 Page 4
that abortion certificates issued by Chinese hospitals are evidence only of voluntary
abortions. The line between a voluntary and a coerced abortion can be blurred, he argues,
and here he has also submitted a letter from his wife describing how the abortion was
forced.
Again, however, any shortcomings in the IJ’s decision are irrelevant because the BIA
in its separate opinion addressed the abortion certificate anew. It noted the State
Department’s 2006 profile of China stating that abortion certificates are not issued for
involuntary abortions and pointed out that Chen did not contradict those reports. When
there is no contradictory evidence in the record, we have upheld reliance on similar
government reports. See Xiao v. Mukasey, 547 F.3d 712, 717‐18 (7th Cir. 2008); Huang, 453
F.3d at 947. Additionally, Chen’s reference to his wife’s letter is unavailing; the BIA gave
that letter little weight, questioning—as had the IJ—whether it was actually from his wife.
Chen might disagree with the weight the BIA assigned to the letter, but we are far from
convinced that the record compels a contrary result.
Last, Chen argues that the IJ ignored the abuse he personally experienced when the
family‐planning officials slapped him, threatened sterilization, and handcuffed him, and he
contends that this experience qualifies as past persecution and also supports a fear of future
persecution. But the IJ dismissed Chen’s testimony as incredible, and Chen has pointed to
no other evidence in the record for us to disturb this conclusion.
Accordingly, the petition is DENIED.