Chen v. Atty Gen USA , 204 F. App'x 122 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-7-2006
Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2947
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2947
TONG JING CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A77-341-668
Submitted Under Third Circuit LAR 34.1(a)
November 6, 2006
Before: SCIRICA, Chief Judge, BARRY and ALDISERT, Circuit Judges
(Opinion Filed: November 7, 2006 )
OPINION
BARRY, Circuit Judge
Petitioner Tong Jing Chen seeks review of a final order of the Board of
Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”)
order denying asylum, withholding of removal, and relief under the Convention Against
Torture. We have jurisdiction under 8 U.S.C. § 1252. We will deny the petition for
review.
I.
Chen, a citizen of the People’s Republic of China, entered the United States on
December 17, 2000 at the Los Angeles International Airport. An officer of the
Immigration and Naturalization Service (“INS”) detained and interviewed him. In the
interview, Chen represented that he was traveling under a false passport, that he was
seeking asylum from China’s family planning policy, and that his wife and daughter,
Chen Xi, born on August 21, 1998, remained in China.
On December 26, 2000, in his “credible fear” interview, Chen testified that
Chinese authorities refused to register his 1998 marriage and refused to register his first
child, Chen Xi. He stated that in his village he is permitted to have two children, but due
to the state’s refusal to register his first child, he cannot legally have a second child.
Therefore, he testified, when his wife became pregnant for a second time in July 2000,
authorities sought to arrest him and require that either he or his wife be sterilized. As a
result, his wife went into hiding and he came to the United States.
At a merits hearing before the IJ on September 20, 2002, Chen’s testimony
differed materially from his previous statements to INS officials. He testified that he was
married on May 22, 1995 and had two children from this marriage: a daughter, Cheng
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Chen, born on August 21, 1996, and a son, Cheng Jing Wai, born on February 23, 1998.
Chinese authorities threatened him with sterilization in 1997, he claimed, and did in fact
sterilize his wife in 1999. He attributed his decision to come to the United States to his
persecution for having two children. He also testified, for the first time, that Chinese
authorities had detained his father because of Chen’s unregistered marriage and children.
In a December 5, 2002 oral decision and order, the IJ denied Chen’s application
for asylum, withholding of removal, and relief under the Convention Against Torture.
The IJ cited discrepancies between Chen’s three statements, found that several of his
explanations and assertions were not credible, and noted that evidence of his wife’s
alleged sterilization was not competent. In his timely appeal to the BIA, Chen contested
the propriety of the IJ’s reliance on statements he made at his airport and credible fear
interviews, but did not otherwise attempt to explain the inconsistencies in the record. The
BIA dismissed the appeal in a December 9, 2004 opinion and order, finding no error in
the IJ’s reliance on Chen’s airport and credible fear interviews. Chen timely petitioned
for review of the adverse credibility determination.
II.
An alien may qualify for political asylum if he or she can demonstrate past
persecution or a well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion. Gao v.
Ashcroft, 299 F.3d 266, 271-72 (3d Cir. 2002). Withholding of removal requires the
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applicant to establish a clear probability of persecution in the proposed country of
deportation. Gabuniya v. Attorney General, 463 F.3d 316, 320-21 (3d Cir. 2006). To
obtain relief under the Convention Against Torture, an applicant must demonstrate that it
is more likely than not that he or she will be tortured in the proposed country of
deportation. Obale v. Attorney General, 453 F.3d 151, 161 (3d Cir. 2006). Each basis for
relief requires, at minimum, credible testimony. See Gao, 299 F.2d at 272.
We review adverse credibility determinations for substantial evidence. He Chun
Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Credibility determinations must be
grounded in reasonable, substantial, and probative evidence of record and supported by
specific, cogent reasoning. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003);
Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003). We may not disturb a
credibility determination unless no reasonable person would have found the applicant
incredible. He Chun Chen, 376 F.3d at 222.
Chen faults the IJ for placing too little emphasis on his detailed statement at the
merits hearing while focusing on “omissions” in his airport and credible fear interviews.
Although we have occasionally expressed skepticism over the reliability of airport
interviews, see Dia v. Ashcroft, 353 F.3d 228, 257 (3d Cir. 2003), we have found that
they may serve as the basis for an adverse credibility determination when the applicant
clearly understood the questions posed and his answers went to the heart of his claim. See
He Chun Chen, 376 F.3d at 224. We also routinely find that statements given during a
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credible fear interview may support an adverse credibility determination.
The record reveals not only “omissions,” as Chen contends, but key discrepancies
that go to the heart of his claim. We think it reasonable to expect an asylum seeker
claiming persecution based on his family and marital status to provide consistent answers
to such basic questions as the number, names, and approximate ages of his children, the
year of his marriage, and whether his wife has been sterilized. Here, however, we find
two distinct versions of these key facts. Chen presented the first version in his airport
interview. Nine days later, he substantially corroborated his original statement. Then, at
the merits hearing nearly two years later, Chen presented a strikingly different picture of
his family circumstances. Purported fatigue and nervousness do not explain how, in one
version, Chen’s wife is pregnant, and in the other, she is sterilized, or how his children’s
names and ages mysteriously change. Yet Chen offers no other explanation.
In all instances, immigration officials interviewed Chen in either his native
language of Foo Chow or in Mandarin, a language he also speaks. Our review of the
transcript satisfies us that in each interview, Chen fully understood the questions asked of
him. Therefore, we have little difficulty finding that substantial evidence in the record
supports the adverse credibility determination.
III.
For the foregoing reasons, we will deny the petition for review.
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