Chen v. Atty Gen USA , 112 F. App'x 201 ( 2004 )


Menu:
  •                                                                                                                            Opinions of the United
    2004 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-19-2004
    Chen v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 03-1057
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
    Recommended Citation
    "Chen v. Atty Gen USA" (2004). 2004 Decisions. Paper 218.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2004/218
    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 2004 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 03-1057
    SHIMU CHEN,
    Petitioner
    v.
    JOHN ASHCROFT, Attorney General of the United States,
    Respondent
    On Petition for Review of an Order of the Board of Immigration Appeals
    (No. A72-762-031)
    Submitted Under Third Circuit LAR 34.1(a): October 1, 2004
    Before: ROTH and CHERTOFF, Circuit Judges, and IRENAS,* Senior District Judge.
    (Filed: October 19, 2004)
    OPINION
    CHERTOFF, Circuit Judge.
    *
    Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
    sitting by designation.
    1
    Shimu Chen petitions for review of an exclusion order entered by the Board of
    Immigration Appeals (BIA) on December 9, 2002. The BIA issued an “affirmance
    without opinion” of a decision by an Immigration Judge (IJ) denying Chen’s request for
    asylum and withholding of deportation. Chen argues that the IJ failed to adequately
    consider documentary evidence he submitted and that the IJ erred in finding that he
    lacked credibility. Because the record shows that the IJ did, in fact, consider Chen’s
    documentary evidence, and that his credibility finding was supported by substantial
    evidence, we will deny the petition.
    I.
    Chen arrived in the United States on June 6, 1993 on the cargo ship “Golden
    Venture,” which ran aground near Queens, New York early that morning. Soon after his
    arrival, the Immigration and Naturalization Service (INS) found him to be excludable and
    initiated exclusion proceedings against him. Chen applied for asylum and withholding of
    deportation on the grounds that he had faced persecution for violating China’s “one-
    child” policy. He appeared before an Immigration Judge, who denied his application on
    August 17, 1993. After Chen’s subsequent appeal to the BIA was dismissed, he initiated
    habeas corpus proceedings in the United States District Court for the Middle District of
    Pennsylvania.
    Following the passage of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996 (IIRIRA), which declared that individuals who were subject to
    2
    coercive population control measures “shall be deemed to have been persecuted on
    account of political opinion,” Chen and the INS filed a joint motion to remand this case to
    the BIA. See 
    8 U.S.C. § 1101
    (a)(42); see also In re X-P-T-, 
    21 I. & N. Dec. 634
     (BIA
    1996); In re C-Y-Z-, 
    21 I. & N. Dec. 916
     (BIA 1997). The District Court granted the
    motion and remanded the case to the BIA. The BIA in turn remanded the case to a
    second Immigration Judge, who held an evidentiary hearing on September 16, 1998.
    At that hearing, Chen testified in support of his claim that he faced persecution for
    violating China’s coercive population control policies. (App. 20-93.) The key elements
    of his testimony, as it relates to his asylum claim, are as follows: Following the birth of
    his second child on October 14, 1984, Chen was fined 3,000 RMB 1 by Chinese officials
    and threatened with sterilization. As he was unable to pay, government officials came to
    his house in the middle of the night and confiscated his personal possessions. He was
    subsequently fired from his job as a railroad worker due to his failure to pay the fine.
    After losing his job, he moved out of his house and began working for his wife’s brother-
    in-law at his sheet-metal store.
    On November 1, 1988, Chen and his wife had a third child. Upon registering the
    child with Chinese authorities he was fined an additional 5,000 RMB. He paid this fine,
    along with the earlier fine, using money borrowed from his wife’s brother-in-law.
    Following the payment of the fine, the government again demanded that he be sterilized.
    1
    The IJ noted that, according to the State Department’s Country Report, an
    American Dollar is worth approximately 8.3 RMB (Renminbi). (App. 29.)
    3
    He subsequently fled China, walking through Burma with a group of about twenty other
    people before arriving in Thailand, where he boarded the “Golden Venture” and began
    his several-month journey to the United States.
    The IJ held one additional hearing on this case on December 16, 1998, and then, in
    an oral decision dated May 10, 1999, rejected Chen’s application for asylum and
    withholding of deportation. The IJ stated that he found Chen not credible based on
    numerous inconsistencies in his testimony. Chen filed a notice of appeal with the BIA,
    which, on December 9, 2002, issued an “affirmance without opinion” of the IJ’s decision,
    pursuant to 
    8 C.F.R. § 1003.1
    (e)(4). Chen now petitions this Court for review of the
    BIA’s decision. Due to the timing of this case, we have jurisdiction under the transitional
    provisions of the IIRIRA. See Pub. L. No. 104-208, Div. C., Tit. III, Subtit. A, §
    309(c)(4)(D), 
    110 Stat. 3009
    -626 (1996). When the BIA issues an “affirmance without
    opinion” pursuant to 
    8 C.F.R. § 1003.1
    (e)(4), the decision of the IJ becomes the final
    agency action on the matter and we scrutinize it accordingly. See Dia v. Ashcroft, 
    353 F.3d 228
    , 243 (3d Cir. 2003) (en banc).2
    II.
    Chen raises two issues in challenging the IJ’s decision. He first argues that the IJ
    2
    We need not address the question of whether an appellate court should review the
    BIA’s decision to employ the procedure under 
    8 C.F.R. § 1003.1
    (e)(4) because we find
    that the BIA’s decision to do so in this case was clearly consistent with the requirements
    of that section.
    4
    erred in failing to adequately consider documentary evidence he submitted. Next, he
    challenges the IJ’s credibility determination. We will address each issue in turn.
    A.
    In conjunction with his application for asylum and withholding of deportation,
    Chen submitted several documents he claimed corroborated his story, including a
    marriage certificate, birth certificates for his three children, a household register, a notice
    of a fine for having a second child, a receipt for payment of the fine, and a notice from the
    railroad stating that he was being dismissed for violating China’s one-child policy. At
    Chen’s September 16, 1998 hearing, the IJ noted that the documents had not been
    certified pursuant to 
    8 C.F.R. § 287.6
     and directed Chen to seek certification prior to the
    December 16 hearing. (App. 93-94.)
    At the latter hearing, Chen’s counsel reported that she had sent the various
    documents to the American Consulate in Guangzhou, China but had received no
    response. (App. 97.) The INS Representative at the hearing stated that he had attempted
    to prod the State Department into certifying the documents but had similarly received no
    answer. (App. 99.) The IJ expressed his frustration with the State Department’s failure
    to comply with the request and then gave the parties until January 15, 1999 to attempt
    once again to have the documents certified. (App. 105.) The IJ’s May 10, 1999 decision
    notes that the documents had not been authenticated as of that point. (App. 28.)
    The certification requirement reads as follows:
    5
    (1) In any proceeding under this chapter, an official record or entry therein,
    when admissible for any purpose, shall be evidenced by an official
    publication thereof, or by a copy attested by an officer so authorized. This
    attested copy in turn may but need not be certified by any authorized foreign
    officer both as to the genuineness of the signature of the attesting officer
    and as to his/her official position. The signature and official position of this
    certifying foreign officer may then likewise be certified by any other
    foreign officer so authorized, thereby creating a chain of certificates.
    (2) The attested copy, with the additional foreign certificates if any, must be
    certified by an officer in the Foreign Service of the United States, stationed
    in the foreign country where the record is kept. This officer must certify the
    genuineness of the signature and the official position either of (I) the
    attesting officer; or (ii) any foreign officer whose certification of
    genuineness of signature and official position relates directly to the
    attestation or is in a chain of certificates of genuineness of signature and
    official position relating to the attestation.
    
    8 C.F.R. § 287.6
    (b). 3 In Liu v. Ashcroft we held that this requirement “is not an absolute
    rule of exclusion, and is not the only means of authenticating records before an
    immigration judge.” 
    372 F.3d 529
    , 533 (3d Cir. 2004). Thus, under Liu, an IJ commits
    error if he refuses to consider documents solely because they have not been certified in
    accordance with 
    8 C.F.R. § 287.6
    (b). 4 That is not the case before us today, however.
    While the IJ in this case did require Chen to attempt to have the documents authenticated
    and then noted his failure to do so in his oral opinion, there is no evidence that he refused
    3
    China is not a signatory to the Hague Convention on Abolishing the Requirement
    of Legalization for Foreign Public Documents, so § 287.6(b), rather than § 287.6(c),
    governs.
    4
    Liu did not hold that an IJ must consider documents which have not been
    certified; rather, it found that IJs must give applicants an opportunity to prove the
    authenticity of such documents through other means. 
    372 F.3d at 533
    .
    6
    to consider the documents because they were not authenticated. In fact, the record shows
    that he relied on one of the documents in reaching the credibility determination that Chen
    now challenges. Thus, there is no basis on which to conclude that the IJ improperly
    refused to consider the documentary evidence submitted by Chen. For this reason, we
    reject Chen’s first claim.5
    B.
    Chen next challenges the IJ’s determination that he lacked credibility. In his oral
    opinion, the IJ found that Chen was “making up his testimony as he is going along.”
    (App. 37.) He justified this finding by noting at least eight different instances in which
    Chen’s testimony was either unbelievable on its face or conflicted with his earlier
    testimony given during his 1993 exclusion proceedings. For instance, the IJ noted that
    Chen had initially testified that he was given until November 5, 1991 to pay his 3,000
    RMB fine for violating China’s one-child policy, then corrected himself and stated that he
    had until November 5, 1984. He also noted that Chen had contradicted himself regarding
    who owned the sheet-metal store where he went to work in 1984, stating once that it was
    his sister-in-law’s store, then that it was his wife’s brother-in-law’s store. He further
    pointed out that Chen had contradicted himself as to whether he had paid the fine for
    violating the one-child policy, stating in his 1993 hearing that he had not paid it, only to
    5
    Our decision on this issue should not be taken to indicate that we do not share the
    IJ’s frustration with the State Department’s failure to respond to the requests made by
    Chen and the INS.
    7
    testify at his September 16, 1998 hearing that he had in fact paid it. When confronted
    with this apparent contradiction, Chen testified that it was his wife who had actually paid
    the fine.
    It is unnecessary for us to review all of the statements the IJ relied on in making
    his findings. As a matter of law, our review of an IJ’s credibility determination is quite
    limited. W e will not upset an IJ’s factual finding unless we conclude that “any reasonable
    adjudicator would be compelled to conclude to the contrary.” 
    8 U.S.C. § 1252
    (b)(4)(B).
    Thus, if we determine that an IJ’s finding is supported by “substantial evidence,” that
    finding must stand. See Gao v. Ashcroft, 
    299 F.3d 266
    , 272 (3d Cir. 2002). Such a
    standard is particularly appropriate in cases involving credibility determinations, because,
    unlike the IJ, we do not have the opportunity to observe the witness in person. See, e.g.,
    Dia, 
    353 F.3d at
    252 n.23.
    In this instance, we conclude that the IJ’s finding was supported by substantial
    evidence. The IJ’s oral opinion noted several instances in which Chen’s testimony was
    inconsistent or contradicted earlier statements he had made. While we accept that some
    of the individual examples cited by the IJ, such as Chen’s original assertion that he was
    given until 1991 to pay his fine, could be the result of translation error, and that
    immigration judges should take note of such possibilities in reaching credibility
    determinations, see, e.g., Liu, 
    372 F.3d at 533-34
    , we find that the record, taken as a
    whole, supports the IJ’s finding that Chen lacked credibility. As the IJ noted in his oral
    8
    decision, Chen contradicted himself on important facts that were central to his
    application, such as whether he had paid the fine for violating the one-child policy, where
    he worked following his termination from the railroad, and when Chinese officials came
    to his house to seize his possessions. Although Chen is not very well educated and may
    have been confused during the proceedings, our role is not to scrutinize the record to
    determine if other plausible explanations exist for Chen’s statements. Rather, our role is
    limited to reviewing the determinations of the IJ to determine if they were supported by
    substantial evidence.
    Finally, as directed by our decision in Liu, we turn to address the question whether
    the documents submitted by Chen overcome any deficiencies in Chen’s credibility as to a
    material issue. In Liu, there was a credibility question about whether one petitioner had
    undergone two abortions. The petitioners submitted documents showing that the Chinese
    government had twice performed abortions on her. As we noted, the documents, if valid,
    provided strong corroboration for her testimony that she had undergone abortions and
    entirely undercut the IJ’s determination that she was not credible. See 
    372 F.3d at 533
    .
    Thus, Liu indicates that powerful documentary evidence can itself be sufficient to
    overcome credibility deficiencies and to support an asylum claim.
    But this case is unlike Liu because the documents Chen submitted, standing alone,
    are not probative on an issue material to his asylum claim. None of the documents
    demonstrates, for instance, that the Chinese government has attempted to have Chen
    9
    sterilized. Most of them relate to tangential matters or matters that are undisputed. To be
    sure, Chen’s notice of dismissal from the railroad, if accepted as authentic, does establish
    that he has been punished for his failure to follow China’s one-child policy. But 
    8 U.S.C. § 1101
    (a)(42) requires that an alien seeking asylum who has not been the victim of an
    involuntary abortion or sterilization demonstrate that he or she has faced “persecution”
    for refusing to undergo such a procedure or, in the alternative, has a “well founded fear”
    of such persecution. We recently held that being fired for violating the one-child policy
    does not, on its own, amount to persecution. “[A] person who is fired for violating the
    [one-child] policy . . . cannot prove past persecution simply by establishing the
    occurrence of and the reason for the dismissal.” Chen v. Ashcroft, 
    381 F.3d 221
    , 234 (3d
    Cir. 2004). The documents submitted by Chen here, unlike those in Liu, do not bear
    directly on the issue whether he has been the victim of persecution.
    Because we find that the IJ’s decision in this case had adequate support in the
    record, we deny the petition for review of the BIA’s decision.
    10