2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-17-2010

Chen v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1197

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-1197

___________

ZHI LIANG CHEN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A098-593-931)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 4, 2010

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Filed February 17, 2010)

___________

OPINION OF THE COURT

___________

PER CURIAM

Zhi Liang Chen, a citizen of China, entered the United States in 2004 without valid

travel documents. He now petitions for review of the Board of Immigration Appeals

order affirming without opinion an Immigration Judge’s order denying his applications
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for asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). For the reasons set forth below, we will deny the petition for review.

At a hearing before the Immigration Judge (“IJ”), Chen alleged that he had been

persecuted on account of religion as he is a Christian. Chen testified that he began

participating in church activities with his grandmother when he was in high school. He

and his family initially attended a government sanctioned church, but Chen later joined an

underground “private” church in 2001 after believing that the Chinese government was

limiting his ability to worship. He began distributing religious pamphlets and giving

speeches about the Bible, both while he was in high school and after graduation at his

place of work. He also stated that from the end of 2003, some church members would

gather at his home to discuss the Bible and pray, as well as participate in activities

associated with an underground church. 

Chen also testified that in August 2004, while working at a supermarket, he was

arrested and taken to a police station where he was further interrogated. When Chen

refused to divulge details of the church meetings, he was slapped on the face. Chen also

alleges that the police tried to bribe him to find out details of church meetings. He was

detained for about forty-eight hours. After being released, he was not allowed to leave

town without permission and was required to report to the police station regularly. Chen

left China for the United States in November 2004 and entered illegally in December

2004. 
3

At a continued hearing in June 2006, Chen was given the opportunity to make

additional changes to his asylum application. Through his attorney, Chen indicated that

he wanted to change the information regarding the date on which his employment ended

at the supermarket. At the beginning of the hearing, he requested the date to be changed

to April 2004. Chen’s attorney went off the record to confirm this fact and the IJ verified

that this change was true, accurate, and complete. During cross-examination, however,

Chen was asked how he could have been arrested in August 2004 if he ended work at the

supermarket in April 2004. Chen responded that he amended his application to indicate

that his employment ended “August 10 .” The IJ, however, pointed out that Chen had th

made an effort to specifically amend this date to April 2004, and when asked to explain

this inconsistency, Chen stated that he “did not really pay attention to it.”

The IJ determined that Chen was “not a credible and persuasive witness.” The IJ

cited material discrepancies and inconsistencies between his testimony, asylum

application, and documentary evidence. The IJ also noted that even if credible, Chen still

failed to meet his burden of proof for asylum and withholding of removal, and did not

establish the likelihood that he would be tortured under CAT. The Board of Immigration

Appeals (“BIA”) affirmed the IJ’s decision without opinion.

Where the BIA simply affirms the IJ’s decision, we review the IJ’s opinion. See

Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir. 2003) (en banc). We review the IJ’s findings

of facts for substantial evidence and will uphold the adverse credibility findings “to the
 The IJ noted that there was a question as to whether the REAL ID Act applied to 1

Chen’s application. The REAL ID Act governs applications filed on or after May 11,

2005. Pub. L. No. 109-13, § 101(a)(3)(B)(iii), 119 Stat. 231, 303 (2005) (codified at 8

U.S.C. § 1158(b)(1)(B)(iii)). Here, Chen’s application was signed on April 13, 2005;

however, a cover letter and court filing stamp are dated June 20, 2005. Given the

difference in dates, the IJ gave Chen the benefit of the doubt and did not apply the more

stringent provisions of the REAL ID Act in adjudicating his application. 

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extent that they are supported by reasonable, substantial and probative evidence on the

record considered as a whole.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003). 

We may reverse these findings “only if there is evidence so compelling that no reasonable

factfinder could conclude as the [IJ] did.” Id.; see also INA § 242(b)(4)(B), 8 U.S.C. §

1252(b)(4)(B). Adverse credibility findings may be based on inconsistencies, but only if

the inconsistencies relate to facts at the heart of the claim, rather than to unimportant

details. See Chukwu v. Att’y Gen. of the United States, 484 F.3d 185, 189 (3d Cir.

2007); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (cases explaining the

pre-REAL ID Act standard of review).1

The IJ determined that Chen was not a credible or persuasive witness based on the

inconsistencies in Chen’s testimony and the supporting documentation. We agree. Based

on our review of the record, Chen was inconsistent on material aspects of his testimony

that relate to the heart of his persecution claim. For example, he initially testified that he

was Catholic; a few questions later, he remembered he was not Catholic, but identified

himself as a Christian. When Chen was questioned about his arrest, he stated that it

occurred on August 10, 2004, while he was working at the supermarket. Yet Chen had
5

specifically requested to clarify the date he ended his employment to be April 2004. 

Although dates may not always be important, here, the date of his arrest was a vital detail

central to his persecution claim, and his inconsistency raises doubt about his credibility. 

In addition, Chen was evasive and vague in his testimony, and the supporting

documentation he provided further complicates his credibility. For example, when asked

about the church he attends since arriving in the United States, Chen stated that the

church is in New York, but he did not know its address or exact location. Chen testified

that he attends weekly or so, and that a friend takes him there. Chen then stated that he

takes public transportation, but when asked further, stated that his uncle drove him to

Chinatown and he walked. Neither Chen’s friend nor uncle testified for him at the

hearing to corroborate this claim. When asked about the underground church meetings

that took place in China, Chen provided a certificate from the Changle Christian

Association, but stated that it was associated with government churches. He also could

not explain the purpose of the Changle Christian Association. Finally, Chen could not

explain how his underground church in China came together, met, organized future

meetings, or decided the content of its services. 

Moreover, even if Chen were credible, the evidence supports the IJ’s conclusion

that Chen failed to establish a well-founded fear of persecution, which requires both an

objective and subjective showing. See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d

Cir. 2003). Persecution includes “threats to life, confinement, torture, and economic
 The government argues that Chen waived judicial review by not arguing in his 2

opening brief the IJ’s denials of his withholding of removal and CAT protection claims. 

We agree. Regardless, the standard for these claims is more demanding than the standard

to grant asylum, and thus, Chen cannot establish eligibility for either. See Lukwago, 329

F.3d at 182-83.

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restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993). Here Chen did not show that his fear rises to the level of

persecution because he was slapped by Chinese authorities on one isolated occasion. See

Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004) (an alleged beating that does not

result in any injuries that require medical attention does not constitute persecution). Nor

does Chen show that an objective fear of future persecution exists. He testified that after

he left China, the police visited his home twice to inquire as to his whereabouts. Since 

then, his family members have not had problems with the authorities. Such limited

interaction with the Chinese authorities does not suggest that Chen would face lifethreatening circumstances if returned to China, and he provides no evidence that would

allow us to conclude otherwise. Accordingly, we agree that he is ineligible for asylum. 

Because Chen failed to meet the burden of proof required for asylum, he has also

failed to meet the higher standard for statutory withholding of removal. See Lukwago v. 2

Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Chen also fails to show that it is more likely

than not that he will be tortured if removed to China, and therefore, he is not eligible to

receive CAT protection. 8 C.F.R. § 208.16(c)(2). Accordingly, we will deny the petition

for review.