2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-17-2009

Chen v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3591

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-3591

___________

ZAI RONG CHEN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A77 347 289)

Immigration Judge: Honorable Donald Vincent Ferlise

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 15, 2009

Before: BARRY, SMITH and HARDIMAN, Circuit Judges

(Opinion filed April 17, 2009)

___________

OPINION

___________

PER CURIAM

With the aid of smugglers known as snakeheads, Zai Rong Chen, a native and

citizen of China, traveled to the United States in 1994. He was placed in exclusion

proceedings under Alien Number, A71 800 179. The Board of Immigration Appeals
2

(“BIA”) affirmed the Immigration Judge’s (“IJ”) denial of Chen’s application for asylum

and withholding of removal, in which he alleged persecution under China’s one-child

policy. Chen was deported to China in 1995.

In December 2000, Chen attempted to re-enter the United States. He was placed in

removal proceedings and assigned a new Alien Number, A77 347 289. Chen applied for

asylum, restriction on removal, and withholding under the United Nations Convention

Against Torture. The IJ granted relief in November 2001, finding that Chen had suffered

past persecution because his wife had been sterilized. But after the government located

the record from Chen’s 1994 exclusion proceedings, it moved to reopen, vacate the order

granting relief, and terminate the removal proceedings. The IJ granted the motion in

January 2002; the BIA affirmed without opinion. Later, however, the parties filed a joint

motion to reopen. The BIA granted the motion and remanded the case for consideration

of Chen’s second application for relief and any inconsistencies between it and Chen’s

1994 application. 

Following an April 2006 hearing, the IJ denied relief, finding that Chen was not

credible because of contradictions in his story, hesitancy in testifying, and the deception

evident in his effort to reapply for relief under a new Alien Number. The BIA affirmed,

stating that the IJ’s adverse credibility determinations were not clearly erroneous, that

Chen failed to demonstrate eligibility for relief, and that Chen did not merit relief as a

matter of discretion. Chen filed a petition for review of the BIA’s decision.
 The provisions of the Real ID Act of 2005 that address the Court’s review of an 1

adverse credibility finding do not apply in this case because Chen applied for relief before

the Act’s effective date. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007).

3

The BIA’s adverse credibility determinations and findings of fact will be upheld if

they are supported by “reasonable, substantial and probative evidence on the record

considered as a whole.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003)

(quotations omitted). Adverse credibility determinations based on speculation or

conjecture are not upheld. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). In

general, “minor inconsistencies and minor admissions . . . are not an adequate basis for an

adverse credibility finding.” Id. Any discrepancies must involve the heart of the claim. 

Id. Because the BIA agreed with the IJ’s adverse credibility findings and also provided

its own rationale, we review both the BIA’s order and the IJ’s decision. See Jarbough v. 1

Att’y Gen., 483 F.3d 184, 191 (3d Cir. 2007).

We do not endorse most of the adverse credibility determinations. For example,

the BIA supported its adverse credibility determination in part by relying on the IJ’s

description of Chen’s “delay and hesitancy” in testifying. When asked if he had any other

problems with the family planning officials, Chen paused before stating that his wife had

been arrested and detained for two months. Later, Chen claimed that his wife had been

sterilized. The IJ questioned “why it took the respondent so long to remember these

incidents.” It is certainly appropriate for an IJ to consider an asylum applicant’s

demeanor. See Dia v. Ashcroft, 353 F.3d 228, 252 n.23 (3d Cir. 2003) (en banc)
 This latter argument is certainly plausible. The BIA had ordered the IJ on remand to 2

address inconsistencies between Chen’s 1994 and 2001 applications, not for the taking of

additional testimony. At the beginning of the hearing, Chen’s attorney stated that Chen

did not wish to testify or relitigate his 2001 proceedings; rather he sought only to provide

an explanation for false allegations in his 1994 asylum application.

4

(recognizing that IJ’s observations of demeanor are entitled to a high degree of

deference). But Chen explained that he was nervous and thought he did not need to

repeat testimony that he had given during his successful asylum hearing in 2001.2

Tellingly, once Chen overcame his hesitancy, the details he provided concerning his

wife’s sterilization and detention matched almost exactly the description of those

incidents that he had provided in 2001. In both instances, Chen alleged that his wife was

sterilized on April 23, 1999, after family planning officials threatened to prevent his two

children from being entered on the household registry. Moreover, Chen consistently

claimed his family adopted a boy in 2000 but could not pay the 20,000 RMB fine imposed

by the family planning officials. As a result, Chen’s wife was arrested, detained at the

family planning office for two months, and released only after Chen’s elderly mother

convinced officials that she could not continue by herself to take care of Chen’s children. 

Under the circumstances, Chen’s ability to accurately recollect these details during his

2006 testimony overcomes any negative credibility inference derived from the manner in

which he testified.

Importantly, however, to the extent Chen relied on his wife’s experiences to

support his asylum claim, he is not eligible for relief, even if credible. We recently held
 In addition to the alleged persecution suffered by his wife, Chen himself was ordered 3

to pay 5000 RMB following the birth of his second child. There is no indiction, however,

that this economic restriction was so severe as to constitute persecution. See Li v.

Attorney General, 400 F.3d 157, 168 (3d Cir. 2005).

 The government’s motion for summary affirmance is denied. 4

5

that the Immigration and Nationality Act (“INA”) does not extend automatic refugee

status to spouses or unmarried partners of individuals who have been forcibly subjected to

coercive family planning measures. See Lin-Zheng v. Att’y Gen., 557 F.3d 147

(3d Cir. 2009) (“Thus, there is no room for us to conclude that Congress intended to

extend refugee status to anyone other than the individual who has either been forced to

submit to an involuntary abortion or sterilization, has been persecuted for failure or

refusal to undergo such a procedure, or has a well-founded fear of that occurring in the

future.”). Therefore, as a matter of law, the experiences of Chen’s wife cannot establish

his eligibility for asylum. And, consequently, the BIA’s discretionary denial of asylum 3

was not manifestly contrary to law or an abuse of discretion. See INA § 242(b)(4)(D) [8

U.S.C. § 1252(b)(4)(D)]. 

For the foregoing reasons, we will deny the petition for review.4