2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-12-2010

Qin Chen v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3909

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Qin Chen v. Atty Gen USA" (2010). 2010 Decisions. Paper 2078.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/2078
IMG-035 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3909

___________

QIN CHEN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A94-787-633)

Immigration Judge: Honorable Henry S. Dogin 

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 27, 2009

Before: FUENTES, ROTH AND VAN ANTWERPEN, Circuit Judges

(Opinion filed: January 12, 2010)

___________

OPINION

___________

PER CURIAM

Petitioner Qin Chen is a citizen of China. He entered the United States in 2006

without inspection and was charged as removable. Before the Immigration Judge (“IJ”),

Chen conceded removability and sought asylum, withholding of removal, and relief under
2

the Convention Against Torture (“CAT”). The IJ denied all relief and the Board of

Immigration Appeals (“BIA”) dismissed his subsequent appeal. Chen then filed a

petition for review.

I

Chen based his requests for relief on his practice of Falun Gong, which is outlawed

in China. Chen testified that, as a teenager, he suffered from poor health. In 2003, a

friend invited him to practice Falun Gong, suggesting that it might improve Chen’s

health. Chen stated that he began practicing at the home of his friend’s uncle and

continued to do so once a week from early 2003 until December 2005. 

In December 2005, police raided the uncle’s house during a meeting of Falun

Gong practitioners, including Chen. Chen was arrested; he testified that he was beaten,

hanged upside down, and interrogated. He was held for about a month and released when

his mother paid a substantial fee. Although his mother paid for Chen’s release, she

received no receipt. Chen explained that the police would not give out a receipt because

the fee his mother paid was a bribe, not official bail. Chen was also required to sign a

document stating that he renounced Falun Gong, although he produced no copy of the

document at his removal hearing, and the police instructed him to report once per week.

After his release, Chen was assaulted on the street by police when he was seen

associating with a group of friends, presumably because the police believed he was

engaging in activities related to Falun Gong. Because he felt intense pressure and fear
3

from having to report to police and not associate with his friends, Chen left China for the

United States in 2006. Chen now lives in a residence owned by his boss, not far from his

father’s home in New Jersey.

In addition to his own testimony before the IJ, Chen presented unsworn letters

from his mother and the friend who introduced him to Falun Gong. Chen also submitted

some pictures of himself posing with unknown practitioners at a pro-Falun Gong

demonstration in Washington, D.C. 

The IJ denied all relief, reasoning that Chen failed to sufficiently corroborate his

claim that he experienced or faced persecution for practicing Falun Gong. Specifically,

the IJ noted that Chen failed to produce any evidence that he was in poor health before

starting Falun Gong, so as to establish that he ever began to practice it, or that he was ever

arrested, bailed out, or forced to renounce Falun Gong. The IJ further noted that although

he went to the trouble of obtaining unsworn letters from individuals in China – including

his mother, who had an interest in the outcome of the case – Chen did not produce

affidavits from his father or boss, who both live near him in the United States, or local

Falun Gong practitioners, who could attest to his continued practice of Falun Gong. The

IJ also questioned the veracity of Chen’s claim, citing inconsistencies and weaknesses in

his testimony and other evidence. The IJ however, did not make an express adverse

credibility determination.

The BIA dismissed Chen’s appeal, reasoning that the IJ properly determined that
4

Chen failed to offer sufficient corroborating evidence or adequate explanations for his

failure to produce such evidence.

II

We have jurisdiction over Chen’s petition under 8 U.S.C. § 1252(a). Because the

BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v.

Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we also look to the decision of

the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v.

Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review agency factual determinations

for substantial evidence and will uphold such determinations “unless the evidence not

only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150,

155 (3d Cir. 2005) (internal quotation marks and citations omitted).

As an initial matter, we reiterate that the IJ did not make an explicit adverse

credibility finding, contrary to Chen’s assertion. He merely noted inconsistencies in

Chen’s testimony and expressed some doubts about his story as a result. We have several

times affirmed the rule that in the absence of an explicit adverse credibility finding, we

must proceed as if the applicant’s testimony were credible and determine whether the IJ’s

decision is supported by substantial evidence. See Toure v. AG, 443 F.3d 310, 325-26

(3d Cir. 2006); Lusingo v. Gonzales, 420 F.3d 193, 197 n.5 (3d Cir. 2005); Li, 400 F.3d

at 163-164; Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003). Accordingly, we

will presume the credibility of Chen’s testimony and proceed to evaluate the Agency’s
 This standard applies to claims for relief, such as Chen’s, that were filed after the 1

enactment of the REAL ID Act of 2005. See Chukwu, 484 F.3d at 192 & n.2.

 The IJ noted that he understood why Chen’s father, who apparently remains in the 2

country despite an order of deportation, would not come to the removal hearing, but

expressed doubts about Chen’s claim because he could have easily obtained a sworn

statement from his father, who would not have been required to appear at the hearing.

5

conclusion that Chen failed to meet his burden of establishing eligibility because he failed

to provide reasonable corroboration. 

A failure to corroborate may be relied on to deny relief when “(1) the IJ identifies

facts for which it is reasonable to expect the applicant to produce corroboration, (2) the

applicant fails to corroborate, and (3) the applicant fails to adequately explain that

failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir. 2007) (citing Toure, 443

F.3d at 323; Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001)). Here, the BIA 1

affirmed the IJ’s decision on the ground that Chen should have provided evidence from

his father or boss that would help demonstrate his adherence to Falun Gong. Chen merely

produced unsworn statements from his mother and friend, as well as a photograph of

himself with Falun Gong practitioners at a rally. However, despite his testimony that his

father knew of his Falun Gong practice and that he lived with – or at least near – his boss,

Chen failed to obtain any statements from them about whether he actually adheres to the

practice. We agree that Chen could have easily obtained such evidence and that he 2

unreasonably provided no explanation for his failure to corroborate his claim in that

regard.
6

Because the IJ conducted the required inquiry and reasonably concluded that Chen

failed to offer adequate reasons for his failure to corroborate his claims for relief, we will

uphold the BIA decision affirming the denial of relief. We have considered Chen’s other

arguments on appeal and conclude that they lack merit. Accordingly, we will deny the

petition for review.