2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

7-24-2013 

# C h un g-Hua C he n v

. Att or ne y Ge ne r al Unit ed S t a t es

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 12-2873

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2013

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. It h as be e n a c c e pt e d for inclusion in 2013 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" C h un g -Hua C he n v

. Att or ney Ge ne r al U

nit e d S t a t e s " (2013). 2013 D e cisio n s . P ape r 507. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2013/507NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12-2873

___________ CHUNG-HUA CHEN, a/k/a Zhen Hua Chen, Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

_____________ __________ On Petition for Review of an Order of the Board of Immigration Appeals

(Agency No. A072-848-835) Immigration Judge: Robert P. Owens

______________ Submitted Pursuant to Third Circuit LAR 34.1(a) June 10, 2013 Before: SCIRICA, HARDIM AN and VAN AN TWERPEN, Circuit Judges (Opinion Filed: July 24, 2013)

_________________ OPINION OF THE COURT

_________________ SCIRICA, Circuit Judge

.2 Petitioner Chung-Hua Chen filed this Petition for Rev iew of the decision of the Board of Immigration Appeals (“BIA”) dism issing his applications for political asylum, withholding of removal, and protection under Article 3 of the Un ited Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatm ent or Punishment (“CAT”). Because substantial evidence supported the Immigration Judge’s finding that petitioner was not credible, we w ill deny the Petition for Review.
I. Petitioner is a native and citizen of the P eople’s Republic of China. On December 31, 1993, petitioner arrived in Miami, Florida. He was placed in deportation proceedings as an alien not in possession of vali d travel and entry documents. Petitioner filed his first application for asylum on May 20, 1994, based on persecutionunder China’s family planning policies. On October 25, 1994, petitioner was or dered excluded and deported in absentiabecause he and his counsel failed to a ppear at a hearing before the Immigration Judge (“IJ”). In December 1998, petitioner filed a motion to r eopen and reconsider through new counsel. The IJ denied this motion and reaffirmed that petitioner had abandoned his claims to relief. Petitioner filed his second applicati on for asylum on May 16, 2008, also based on persecu tion under China’s family planning policies. Petitioner then filed a joint mot ion to reopen the case, which the IJ granted on June 18, 2008. On August 7, 2009, petitioner subm itted an Affidavit of New Circ umstances explaining that he was seeking asylum because, as a recent convert to Christianity, he feared persecution in China on the basis of his religion. During the 2009 hearing, counsel for petitioner3 stated that petitioner had decided to drop his family-planning claim and to instead seek asylum on the basis of his religious beliefs. The IJ issued its written d ecision on August 11, 2010, finding that petitioner was not credible, denying his applications for relie f, and ordering him rem oved to China. The IJ noted that the versions of events to ld in petitioner’s first and second asylum applications were inconsistent withone another and with the ver sions told in petitioner’s Pre-Hearing Brief, Supplemental Declaration, and Affidavit of New Circumstances. In total, the IJ e xplained that many crucial aspects of the [petitione r’s] story changed over these five versions: the dates of his marriage and his son’s birth; the number of his wife’s pregnancies and whether there w as a forced abortion; whether he and his wife were warned abou t the insertion of an IUD [intrauterine device] or sterilization; the month whenofficials came for [his wi fe] Bi Ying to insert the IUD; whether officials were awar e that the [petitioner] and his wife had secretly removed the IUD; whether the [petitioner] an d his family fled to the mountains; the date he was last pr esent in China, which still does not fit the timeline created by his statements and documents in the record; whether he was beaten and arr ested by officials; whether his wife was at home when he was arrested; and whether th e [petitioner] fears being sterilized. The IJ also considered aspects of petitione r’s religious-beliefs claim implausible and found that petitioner had failed to explain the in consistencies, omissions, and implausible aspects of his testimony and submissions. The BIA affirmed the findi ngs of the IJ and dismissed petitioner’s appeal on June 5, 2012. The BIA found the IJ properly arrived at an adverse credibility determination and that petitioner had failed to meaningfully address the IJ’s credibility concerns. Since the BIA found petitioner did not satisfy his burden of establishing a credible claim for asylum, the BIA also determined that petitioner could not satisf y his higher burden of4 proof for withholding of rem oval. Lastly, the BIA affirmed the IJ’s decision to deny petitioner’s application for protection under the CAT because petiti oner failed to show that he would more likely than not be tortur ed by Chinese authorities if he were to return to China. Petitioner timely filed th is Petition for Review.
II. We have jurisdiction to review a final orde r of removal under 8 U.S.C. § 1252. We review the BIA’s factual finding s for substantial evidence, and we review the BIA’s legal determinations de novo , subject to principles of Chevron deference. Briseno-Flores v. Att’y Gen. , 492 F.3d 226, 228 (3d Cir. 2007) (citing Chevron v. Natural Res. Def. Council , 467 U.S. 837, 844 ( 1984)). “Adverse credibility determinations are factual findings subject to substan tial evidence review.” Zheng v. Gonzales , 417 F.3d 379, 381 (3d Cir. 2005). 1

1 Under the REAL ID Act of 2005, [c]onsidering the totality of the circu mstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witn ess, the inherent p lausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and consid ering the circumstances un der which the statements were made), the internal consisten cy of each such statement, the consistency of such statemen ts with other evidence of record (including the reports of the Department of S tate on country conditions), and any inaccuracies or falsehoods in such statement s, without regard to whether an inconsistency, inaccuracy, or falsehood goes to th e heart of the applicant’s claim, or any other relevant factor. The re is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a re buttable presumption of credibility on appeal.5 “The ‘final order’ to be reviewed is usually that of the Board of Immigration Appeals, but when the BIA simply states ‘that it affirms the IJ’s decision for the reasons set forth in that decision, . . . the IJ’s opinion effectively becom es the BIA’s, and, accordingly, a court must rev iew the IJ’s decision.” Zhang v. Gonzales , 405 F.3d 150, 155 (3d Cir. 2005) (alteration in original) (quoting Abdulai v. Ashcroft , 239 F.3d 542, 549 n.2 (3d Cir. 2001)). “Ordinarily, we will affirm the IJ’s decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a w hole. This deferential standard dictates that the IJ’s findings ‘mu st be upheld unless the evidence not only supports a contrary con clusion, but compels it.’” Id. (citation omitted) (quoting Abdille v. Ashcroft , 242 F.3d 477, 483 (3d Cir. 2001)). “Alth ough we generally de fer to the IJ’s inferences, ‘deference is not due where find ings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record, vi ewed as a whole.’” Tarrawally v. Ashcroft , 338 F.3d 180, 184 (3d Cir. 2003) (quoting Balasubramanrim v.
INS , 143 F.3d 157, 162 (3 d Cir. 1998)). We rev iew due process claims de novo

. Chong v. Dist. Dir., INS , 264 F.3d 378, 3 86 (3d Cir. 2001).
III. Petitioner contends the IJ’s adverse cr edibility determination was not supported by substantial evidence becau se (A) petitioner was prejudiced by the conduct of counsel who represented him in his first application for asy lum, (B) the IJ err oneously relied upon

8 U.S.C. § 1158(b)(1)(B)( iii). It is undisputed that th e REAL ID Act applies to petitioner’s current asylum application.6 minor inconsistencies that were reasonably expl ained by petitioner, and (C) the IJ did not address petitioner’s religious-beliefs claim sep arately from his fami ly-planning claim and improperly relied on conjecture. We will addr ess each of petitioner’s arguments in turn.
A. Petitioner contends that his prior co unsel provided him with ineffective assistance in the submission of his first application for as ylum; therefore, he asserts, we should not permit any inconsistencies between that application and subsequ ent applications and submissions to affect his credibility. But even if we ignore discrepancies between the first application and later submissions, we agree with the IJ that “substantial and m aterial aspects of [petitioner’s] claim . . . were missing from his original application.” 2

2 Petitioner’s brief asserts that because petiti oner testified that he did not recognize his first application for asylum, petitioner may not have known what his atto rney wrote on it. But petitioner only testif ied that he did not remember the first application for asylum, explaining that “[i]t’s been [ sic] long time.” A.R. 194. During the hearing, petitioner did not contend that he did not help write or approve of the first application or that its contents were fabricated. Petitio ner also testified th at his handwriting and signature were on the application. The IJ found that before petitioner allowed his lawyer to submit his first app lication for asylum, peti tioner should have noticed that the application omitted his wife’s second pregnancy and forced abortion. The IJ also found that ineffective assistan ce of counsel would “not account for the discrepancies in [petitioner’s ] second application and subsequ ent statements,” for which petitioner had obtained new counsel. For instan ce, neither petitioner’s first application nor his second application men tioned his claimed beating, arrest, and detention by Chinese officials. These ev ents were mentioned for the fi rst time in petitioner’s Pre-7 Hearing Brief. We agree with the IJ’s analysis. Because the aforemen tioned omissions were not attributable to any ineffectiv e assistance of counsel, it w as appropriate for the IJ to consider them in arriving at the adverse credibility determination. 3
B. Alternatively, petitioner argues that any inconsistencies in his testimony and submissions were minor and did not form an adequate basis for an adverse credibility ruling. We disagree both w ith petitioner’s legal assertion th at the IJ may not consider minor inconsistencies and with petitioner’s factual assertion that the inconsistencies on which the IJ relied were minor. Under the REAL ID Act, a trier of f act may, considering the totality of the circumstances, base a credibility determination on “any inaccuracies or falsehoods . . . , without regard to whether aninconsistency, inaccur acy, or falsehood goes to the heart of the applicant’s claim.” 8 U. S.C. § 1158(b)(1)(B)(iii); see also Lin v. Mukasey , 534 F.3d

3 In its brief, the Government argues that petitioner has not comp lied with the necessary procedures for raising an ineffective assistan ce of counsel claim. To assert ineffective assistance of counsel in a remov al proceeding, an alien mu st follow certain procedural formalities and show he was prejudiced by counsel. See Matter of Lozada , 19 I. & N. Dec. 637, 639 (BIA 1988) (detailing the pr ocedural requirements to assert an ineffective assistance of counsel claim); Fadiga v. Att’y Gen. , 488 F.3d 142, 159 (3d Cir. 2007) (“[A]n alien claiming ineffectiv e assistance of counsel in rem oval proceedings must, in addition to showing that his lawyer committed unprofession al errors, show that there was a ‘reasonable likelihood that the result would have been different if the error[s] . . . had not occurred.’” (secondand third alteration inoriginal) (quoting United States v. Charleswell , 456 F.3d 347, 362 (3d Cir. 2006))). B ecause we find the IJ’s credibility determination supported by substantial evidence, and not attri butable to any ineffective assistance of counsel, we neednot consider whether p etitioner properly raised an ineffective assistance of counsel claim.8 162, 167 (2d Cir. 2008) (“[A]n IJ may rely on anyinconsistency or omission in making an adverse credibility determi nation as long as the ‘total ity of the circumstances’ establishes that an asy lum applicant is not credible.” (quoting § 1158(b )(1)(B)(iii))). The omissions apparent in petitioner’s early applicatio ns for asylum—e.g., the facts of petitioner’s arrest and beating and h is wife’s forced abortion—provide strong support for the IJ’s adverse cr edibility determination. In f act, we faced a similar situation in the pre-REAL ID Act case of Xie v. Ashcroft , 359 F.3d 239 (3d Cir. 2004). In Xie , an alien sought asylum on the basis of China’s family-p lanning policies but failed to mention in his written asylu m application that his wife ha d been forcib ly sterilized. Id. at 243. We found that the IJ’s adverse cr edibility determination was supported by substantial evidence, no ting that “[i]f indeed [the p etitioner’s] wife had been sterilized, this would be such a traumatic event in both his and his wife’s life that [it would be] implausible and incred ible that this . . . would not ha ve been included in the I-589 application.” Id. (quotation omitted); see also Zamanov v. Holder , 649 F.3d 969, 973 (9th Cir. 2011) (finding material alterations in applicant’s account of persecution, including when applicant presents different accounts of mistreatment in successive asylum petitions, sufficient to support an adverse credibility determin ation in a pre-REAL ID Act case). Petitioner also contends the IJ did not consider his explanations for his inconsistencies. In particular, petitioner argues that he adde d the facts of his arrest and beating to his Pre-Hearing Brief in orde r to address the ne w burden created by In re J-S- , 24 I. & N. Dec. 520 (Att’y Gen. 2008). But although petitioner’s explanation makes clear9 why he added these facts to his submission, it still does not clarify why he omitted such relevant and likely memo rable events in his first a nd second applications. In short, his explanation would not comp el a reasonable factfinder to find that he is credible. 4
C. Petitioner argues the IJ failed to separ ately address his religi ous-beliefs claim from his family-planning claim. With respect to his religious-b eliefs claim, petitioner takes issue with the IJ’s conclusions that (1) it is implausible that p etitioner would have tried to persuade his wife to attend anunderground church and spr ead the gospel inChina, since he knew it could result in his wife’s per secution; and (2) it is im plausible that petitioner would not have told his pastor or other me mbers of his church, including five witnesses from China and Taiwan who attended his merits hearing, about his wife’s arrest by Chinese authorities for practicing Christianity. We agree with petitioner that the IJ’s fi rst finding of implau sibility was based on improper speculation. See Zheng , 417 F.3d at 382 (explaining a credibility determination based on implausibilitymust be grounded in the r ecord to avoidspeculation and conjecture). The IJ’s assu mption that petitioner would ne cessarily prioritize his wife’s safety over his faith was not grounded in the record; indeed, it contradicts petitioner’s statements that he fears persecu tion upon return to China because he intends to continue practicing Christianity there.

4 Petitioner’s brief also sugg ests that petitioner’s attorney di d not know the requirements for an asylum claim and may have failed to initially question p etitioner regarding his arrest. But as the BIA explained, “[b]ela ted statements in the app eal brief that speculate reasons” why Petitioner did not mention hi s arrest and beating “are not evidence.”10 But the IJ’s second finding of implausibility was grounded in th e record. Petitioner testified that he and his Chinese acquaintan ces “all talk about” the problems that would be created by practicing Christian ity in China. A.R. 207. And when asked why he only told one person about his wife’s arrest, petitioner explained that he chose his confidant “because he’s my friend,” but th en also stated that the members of his church were his “friends.” Id. This testimony was sufficient fo r the IJ to conclude that it was implausible that petitioner would not have told his pasto r or any of the other witnesses about his wife’s arrest in China for practicing Christianity. Additionally, whether or not we are “troubl ed by some of the reasons underlying the IJ’s adverse credibility finding[,] . . . we are bound to uphold the IJ’s decision if it is supported by substantial ev idence, and may do so even if we reject some of its bases.” Zheng , 417 F.3d at 382. In find ing that petitioner was not cred ible, the IJ did not rely solely on the fact that certain aspects of petiti oner’s testimony were implausible, but also on petitioner’s inconsistencies wi th respect to his family-p lanning claim. As previously stated, the REAL ID Act permitted the IJ to consider any incon sistency in petitioner’s statements and submissions regard less of whether it went to th e heart of his claim for asylum. We agree with th e BIA that in this case, [w]here . . . discrepancies went to the heart of one aspect of the asylum claim, such discrepancies can undermine the credib ility of another aspect of the applicant’s asylum claim, which he re the applicant h as based on his religious conversion duri ng the pendency of his exclusion proceedings and which was wholly dependent on the ve racity of his claim that he will continue to practice Christianityand convert others in China at the risk of persecution . . . . Given the inconsistencies in p etitioner’s submissions withrespect to his family-11 planning claim, and the implau sibility of one aspect of h is religious-beliefs claim, a reasonable factfinder would not be compelled to find petitioner credible. Therefore, the IJ acted within its discretion in determining that, under the to tality of the circumstances, petitioner was not credible.
IV. We find the IJ’s adverse credib ility determination supported by substantial evidence. As such, petitioner’s claim fo r withholding of removal is foreclosed. See Chen v. Att’y Gen. , 676 F.3d 112, 117 (3d Cir. 2011) (exp laining that withholding of removal carries a higher burden of proof than asylum). We also find that petitioner has not satisfied his burden of showing that he would mo re likely than not be tortured by Chinese authorities if he were to return to China. See Zheng , 417 F.3d at 383 (finding that an adverse credibility determination on p etitioner’s asylum claim precluded CAT claim based on the same factual circumstances). For the foregoing reasons, we will deny the Petition for Review.