Zhao Chen v. Eric Holder, Jr. , 531 F. App'x 364 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1596
ZHAO LIN CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 9, 2013 Decided: July 2, 2013
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Petition denied by unpublished per curiam opinion. Judge Davis
authored a dissenting opinion.
Adedayo O Idowu, LAW OFFICES OF ADEDAYO O IDOWU, PLLC, New York,
New York, for Petitioner. Stuart F. Delery, Acting Assistant
Attorney General, Shelley R. Goad, Assistant Director, Jennifer
R. Khouri, Trial Attorney, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Zhao Lin Chen, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“the Board”) dismissing his appeal from
the decision of the immigration judge (“IJ”) denying his
applications for asylum, withholding of removal under the
Immigration and Naturalization Act (“INA”), and withholding of
removal under the Convention Against Torture (“CAT”). We deny
the petition for review because we conclude that substantial
evidence supports the Board’s decision.
I
In late 2008, the Department of Homeland Security (“DHS”)
issued a Notice to Appear to Chen charging him with removability
as an alien having entered the United States at an unknown time
and place without inspection. Chen conceded removability, but
sought relief in the form of asylum, withholding of removal, and
protection under the CAT.
In his application and during the proceedings before the
IJ, Chen testified to the following: He was born in 1983, is
not married, and does not have any children. In 2003, he broke
2
up with his girlfriend and became depressed. 1 Shortly
thereafter, a friend introduced him to Christianity, and Chen
began to attend church. The church was not in a fixed location
and congregants met in secret for fear of discovery,
“gather[ing] in [their] different members’ homes.” (J.A. 115.)
In May 2007, Chen was baptized.
Chen recounted that on the evening of November 4, 2007, he
and other congregants were meeting at his friend’s house when
police officers “rushed into [their] gathering place, tor[e] out
[their] Bible[s] and destroyed things at [his friend’s] home
arbitrarily.” (J.A. 309.) Chen and the other congregants were
taken to the police station and interrogated. Chen refused to
answer the officers’ questions and was “kicked and punched”
several times. 2 (J.A. 89.) After four days, Chen’s parents were
able to collect enough money to secure his release. Before
leaving the police station, Chen was required to sign a
1
Chen attached several supporting documents to his
application, including verification of identity, a notice from
his former employer in China indicating that he was terminated
from employment for participating in an underground church, a
certificate indicating he was a member of the Changle City
Christian Church, and a notice indicating that he had taken
courses at a church in New York City upon arriving in the United
States.
2
Chen testified that any remaining scars or other physical
marks from having been beaten and burned with a lit cigarette
had faded with time and were “not very noticeable now.” (J.A.
111.)
3
guarantee letter stating that he would not participate in
underground church activities in the future. When Chen’s
employer was notified that he was involved in an underground
church, and had been “disturbing social order,” Chen lost his
job for “tarnish[ing] the reputation of the company.” (J.A.
101.)
Based on the events of November 4, Chen decided to leave
China. His parents borrowed money from friends and relatives in
order to pay a snakehead a $75,000 fee to smuggle Chen into the
United States. 3 Chen testified that he feared that if he
returned to China he would be persecuted for his Christian
faith.
Chen indicated that since arriving in the United States in
January 2008, he had been working in Chinese restaurants, first
in New York and now in Virginia. He sends the money earned to
China to help pay off the debt his parents owe as a result of
borrowing money to pay the snakehead. Chen stated that he had
attended church in New York, but that he had not found a
Chinese-speaking church in Virginia and that he did not have a
vehicle to help him locate a church.
3
Chen stated that he did not borrow money from the
snakehead and did not owe the snakehead any money. Chen also
told the IJ that he made less than $100 a month while in China,
and that his father made the equivalent of $4 or $5 a day.
4
Chen’s aunt testified in support of Chen’s application.
She stated that she met up with Chen after his arrival in New
York, and that Chen told her he had fled after being persecuted
for his faith. She was aware that Chen continued to practice
Christianity and attend church activities, having observed
religious pamphlets in his residence and photographs of him
participating in religious events.
In addition, Chen submitted an affidavit from his mother
stating that Chen had been arrested in China for being a
Christian. She stated that she was aware of his underground
church activities, had observed that he was thinner and bruised
after having been detained by the police in November 2007, and
that she and Chen’s father had secured his release by paying
money to the police. She also stated that she put some liquid
medicine on Chen’s body to treat his injuries from the
detention. Chen’s mother also corroborated that Chen had been
dismissed from his employment in China because of his
participation in the underground church.
Chen also submitted an affidavit from the friend who had
introduced him to Christianity and invited him to participate in
the church. The friend stated that Chen had been baptized in
May 2007, participated in church activities, and was present at
the home church meeting in November 2007 when police arrested
the congregants. The friend’s testimony echoed Chen’s with
5
respect to the police destroying items at the home, taking
Bibles from congregants, and detaining them at a police station.
The friend stated that he was detained for a month, at which
time he was also required to sign a guarantee stating that he
would not participate in underground church activities in the
future. The friend also stated that the Chinese government
still wanted to arrest Chen.
Lastly, Chen introduced the U.S. State Department’s 2009
International Religious Freedom Report for China, which referred
to the Chinese government’s sanctioning and close-monitoring of
underground, unauthorized churches. The report notes that in
some regions, police disrupt house meetings, detain congregants,
and interrogate individuals about their participation in home
churches.
The IJ denied Chen the relief requested. In recounting the
evidence summarized above, the IJ noted that Chen’s testimony
was “very general” and “gave very few details as to” his church
activities in China and the circumstances surrounding his
November 4 arrest, subsequent detention, and interrogation.
(J.A. 43, 46.) The IJ concluded, in sum, “that [Chen’s]
testimony itself was not specific and detailed, nor was the
corroborating evidence specific and detailed, as required under
the REAL ID Act, in the absence of the respondent’s testimony
being specific and detailed.” (J.A. 47.) “Accordingly,” the IJ
6
found that Chen “ha[d] not met his burden of proof to show that
whatever may have occurred to him was such as to have
constituted past persecution, or even to show that [Chen] has
some reasonable possibility of future persecution.” (J.A. 47.)
The IJ next observed that “the REAL ID Act also speaks to the
credibility of a respondent’s testimony,” and concluded that as
a whole, the “general nature” of Chen’s testimony and
documentation led to the conclusion that Chen was not credible.
(J.A. 47-48.) For these reasons the IJ found that Chen had not
met his burden of showing eligibility for asylum, or the more
substantial burden of demonstrating entitlement for withholding
of removal under the INA, and that Chen had not satisfied the
requirements for relief under the CAT.
Chen appealed that decision to the Board, arguing that the
IJ failed to provide an adequate explanation for the
determinations that Chen had failed to provide sufficiently
specific and detailed testimony, that he was not credible, and
that his corroborating evidence was not sufficient to
independently satisfy his burdens. The Board concluded that
substantial evidence supported the IJ’s decision and, in
particular, noted:
Contrary to [Chen’s] arguments on appeal, the [IJ],
before making his adverse credibility finding,
identified his particular concerns with the testimony
of the respondent and his witness as well as the
documentary evidence submitted below. Specifically
7
the [IJ] provided particular examples of the general
nature and the missing details from the testimony of
both [Chen] and [his aunt]. He also described
specific problems with the vagueness of the
documentary evidence and identified missing
information before determining that [Chen] did not
independently establish his claim on the basis of the
corroborating evidence. The [IJ] appropriately made
his credibility determination based on the totality of
the circumstances and, specifically, on his
determination that neither the testimony nor the
corroborating evidence were specific and detailed.
(J.A. 3.) The Board observed that the IJ had “considered the
limited documentary evidence in conjunction with [Chen’s]
incredible testimony in determining that he had not met his
burden of proof.” (J.A. 4.) Because the Board concluded that
the IJ “correctly determined that the respondent had not met his
burden to demonstrate eligibility for asylum,” it also
recognized that Chen could not satisfy the more stringent
standard required for withholding for removal. (J.A. 4.) The
Board also held that Chen had failed to establish that it was
more likely than not that he would be tortured upon return to
China and therefore was ineligible for relief under the CAT.
Accordingly, the Board dismissed Chen’s appeal.
Chen filed a timely petition for review in this Court, and
we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
II
8
Our review of the Board’s decision is highly deferential,
affording broad—but not absolute—deference to the agency’s
disposition. See 8 U.S.C. § 1252(b)(4)(B)-(D); see also Haoua
v. Gonzales, 472 F.3d 227, 231 (4th Cir. 2007). We uphold the
denial of an asylum claim “unless such a denial is ‘manifestly
contrary to the law and an abuse of discretion.’” Zelaya v.
Holder, 668 F.3d 159, 165 (4th Cir. 2012) (quoting 8 U.S.C. §
1252(b)(4)(D)).
When the denial of asylum is based on the [Board’s]
conclusion that the applicant failed to meet his
evidentiary burden for establishing eligibility, then
we review for substantial evidence and must affirm a
determination of statutory ineligibility by the
[Board] unless the evidence presented was so
compelling that no reasonable factfinder could fail to
find eligibility for asylum.
Dankam v. Gonzales, 495 F.3d 113, 119 (4th Cir. 2007) (internal
quotation marks omitted).
A
The INA authorizes the Attorney General to confer asylum on
any refugee. See 8 U.S.C. § 1158(a). An applicant for asylum
bears the burden of proving that he holds refugee status, i.e.,
that he is “unable or unwilling to return to . . . [his] country
because of [past] persecution or a well-founded fear of [future]
persecution on account of,” inter alia, his religious beliefs.
8 U.S.C. §§ 1101(A)(42)(A), 1158(b)(1)(B)(1). An applicant who
9
has endured past persecution is entitled to a presumption of
having a well-founded fear of future persecution. 8 C.F.R. §
208.13(b)(1). The REAL ID Act of 2005 amended the INA, and
applies to Chen’s application. Under the REAL ID Act,
[t]he testimony of the applicant may be sufficient to
sustain the applicant’s burden without corroboration,
but only if the applicant satisfies the trier of fact
that the applicant’s testimony is credible, is
persuasive, and refers to specific facts sufficient to
demonstrate that the applicant is a refugee. In
determining whether the applicant has met the
applicant’s burden, the trier of fact may weigh the
credible testimony along with other evidence of
record. Where the trier of fact determines that the
applicant should provide evidence that corroborates
otherwise credible testimony, such evidence must be
provided unless the applicant does not have the
evidence and cannot reasonably obtain the evidence.
8 U.S.C. § 1158(b)(1)(B)(ii).
Chen attempted to satisfy his burden of proving eligibility
for asylum by showing that he had been subjected to past
persecution on account of his Christian faith due to his
November 2007 detention. Chen contends the Board’s decision is
not supported by substantial evidence because it was “based on
speculation and conjecture rather than specific and cogent
reasoning” as to what relevant information Chen failed to
provide to the IJ. (Opening Br. 11.) Chen asserts that if the
Board had paid closer attention to his testimony and
corroborating evidence, giving it “sufficient consideration,”
the Board would have held in Chen’s favor. (Id. at 11, 14) And
10
he claims that neither the IJ nor the Board “cite[d] any
examples of Petitioner’s testimony which were supposed to be too
general.” (Id. at 14.) Chen maintains that because he
established past persecution, he is entitled to the presumption
of having a well-founded fear of future persecution and thus is
eligible for asylum.
We have reviewed the Board’s decision and conclude that
substantial evidence supports its determination that Chen failed
to establish eligibility for asylum. As noted, under 8 U.S.C. §
1158(b)(1)(B)(ii), the IJ must assess, inter alia, whether an
applicant’s testimony “refers to specific facts sufficient to
demonstrate that the applicant is a refugee” and whether that
testimony is “credible.” Under 8 U.S.C. § 1158(b)(1)(B)(iii),
an IJ may make an adverse credibility determination after
considering “the totality of the circumstances, and all relevant
factors.” While lack of detail, vagueness, and the like are not
specifically delineated in the credibility determination
provision, they clearly constitute other “relevant factors.”
See Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010)
(“[E]ven though lack of detail is not expressly listed as a
factor that may be considered [under the REAL ID Act’s
credibility determination provision at 8 U.S.C. §
1158(b)(1)(B)(iii)], the pre-REAL ID Act practice of looking to
the level of detail of the claimant’s testimony to assess
11
credibility, see Singh-Kaur v. INS, 183 F.3d 1147, 1153 (9th
Cir. 1999), remains viable under the REAL ID Act as it is a
‘relevant factor.’”). 4 Under these provisions, either basis—
specificity or credibility—would be independently adequate
grounds for determining that an applicant’s testimony fails to
satisfy his burden of proving eligibility for asylum. A lack of
detail and generalized testimony can be both a factor in
assessing whether an applicant has satisfied his or her overall
burden of proof and a factor in considering the credibility of
an applicant’s testimony. While the two analyses are distinct,
they do sometimes overlap.
In this case, the IJ’s adverse credibility determination
and the Board’s affirmance thereof flowed directly from their
overarching concerns about the lack of detail and the general,
vague nature of Chen’s testimony. Contrary to Chen’s arguments,
the Board offered specific reasons for its determination, citing
to the IJ’s “particular concerns” and “specific examples” of how
Chen’s evidence was too generalized, lacking detail, and
otherwise insufficient to provide credible evidence sufficient
to carry his burden of proof. See J.A. 3. The IJ thoroughly
4
Other courts have also recognized that lack of detail,
vagueness, and omissions are salient to an IJ’s credibility
determination. E.g., Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th
Cir. 2004); Elzour v. Ashcroft, 378 F.3d 1143, 1152 (10th Cir.
2004); Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir. 2004).
12
reviewed the evidence Chen did present in support of his case,
noted specific examples of why that evidence fell short of
satisfying his burden, and the Board conducted its own review of
that decision and the record before dismissing Chen’s appeal.
In so doing, they offered “specific, cogent reason[s]” for the
determination, which was not “based on speculation, conjecture,
or an otherwise unsupported personal opinion.” See Zuh v.
Mukasey, 547 F.3d 504, 507 (4th Cir. 2008) (internal quotation
marks omitted). Rather, the Board’s denial of Chen’s claim was
based on the totality of the record and Chen’s failure to prove
eligibility for asylum, and specifically that he had been
persecuted—as that term is understood in the context of asylum—
in China. 5 Because Chen’s corroborating evidence did not
overcome this factual deficiency, the Board appropriately
5
As we are often required to observe, “[p]ersecution is an
extreme concept that does not include every sort of treatment
that our society regards as offensive.” Li v. Gonzales, 405
F.3d 171, 177 (4th Cir. 2005) (internal quotation marks
omitted); see also id. at 177-78 (delineating cases
demonstrating this point, including ones where an applicant’s
detention, interrogation, beatings, and other deprivations did
not compel a conclusion of past persecution). While the events
Chen related are not justifiable, Chen failed to provide
adequate details from which the IJ could determine that those
events rose to the level of what our jurisprudence recognizes as
“persecution.” As such, he failed to satisfy his burden of
demonstrating refugee status and, in turn, eligibility for
asylum.
13
determined that the totality of Chen’s evidence failed to
satisfy his burden of proof. 6
The Board’s decision pointed to specific concerns regarding
the lack of detail and the generalized nature of Chen’s
testimony, and why Chen had not satisfied his burden of proving
refugee status. Consequently, as the IJ stated and the Board
affirmed, Chen failed to “[meet] his burden of proof to show
that whatever may have occurred to him was such as to have
constituted past persecution, or even to show that [he] has some
reasonable possibility of future persecution.” (J.A. 47.) The
IJ appropriately permitted Chen to present and develop his case
and to satisfy his burden of proof; it and the Board then
considered the totality of the evidence before them and
concluded it was insufficient to meet Chen’s burden. 7 We have
6
We disagree with the dissenting opinion’s characterization
that we are substituting our own rationale for that of the IJ
and the Board. Neither decision is a model of clarity, but they
are both grounded in Chen’s failure to present sufficient proof,
be it through testimony or corroborating evidence, to support
his claim. That same deficiency in Chen’s testimony supported
the adverse credibility determination. The IJ and Board
decisions invoked two permissible factors (sufficiency and
credibility) in considering—and ultimately denying—Chen’s
application.
7
The dissenting opinion is correct that an IJ has a role in
the development of the record. The IJ in this case did ask Chen
a series of questions to “determine a frame of reference,” which
“was not fleshed out on direct examination, nor was it fleshed
out on cross or redirect.” (J.A. 73.) At the outset of the
proceedings and throughout, the IJ took an active role in
(Continued)
14
reviewed the Board’s decision as well as the record on which it
based its determination, and conclude the evidence is not “so
compelling that no reasonable factfinder could fail to find that
[Chen] had established eligibility for asylum.” Dankam, 495
F.3d at 124 (internal quotation marks omitted). Accordingly,
substantial evidence supports the Board’s conclusion that Chen
did not demonstrate eligibility for asylum based on past
persecution.
Chen also contends that even if he did not establish past
persecution, he nonetheless demonstrated a well-founded fear of
future persecution on account of his religion. The “well-
founded fear of persecution” standard consists of two
components: the subjective part requires the alien to present
“candid, credible, and sincere testimony demonstrating a genuine
fear of persecution,” and the objective component requires him
to provide “specific, concrete facts that would lead a
reasonable person in like circumstances to fear persecution.”
Ngarurih v. Ashcroft, 371 F.3d 182, 187-88 (4th Cir. 2004).
Chen points to the same evidence of past persecution to satisfy
questioning Chen and asking for clarification. We do not,
however, second guess the scope of the IJ’s intervention as we
are to uphold the Board’s decision unless it is manifestly
contrary to the law and an abuse of discretion. See Lin v.
Holder, 611 F.3d 228, 235 (4th Cir. 2010).
15
the subjective component and to China’s “well known”
“persecution [of] underground churches and participants” to
satisfy the objective component. (Opening Br. 16.) Chen’s
argument fails because he relies on the identical evidence of
past persecution to support the subjective component of this
claim. See Dankam, 495 F.3d at 123 (“[T]he subjective element
cannot generally be proved other than through the applicant’s
testimony.” (citing Camara v. Ashcroft, 378 F.3d 361, 369 (4th
Cir. 2004)); see also Li, 405 F.3d at 176-77 (citing Zalega v.
INS, 916 F.2d 1257, 1261 (7th Cir. 1990)) (stating that an alien
whose evidence of past persecution is insufficient to constitute
past persecution under the statute usually cannot rely on the
same evidence to show a well-founded fear of future persecution,
but must prove she has reason to believe she will be treated
worse upon return to her country).
B
Because substantial evidence supports the Board’s decision
that Chen has not met his burden for showing eligibility for
asylum, it necessarily follows that substantial evidence also
supports its decision that Chen did not satisfy the higher
burden of demonstrating a “clear probability of persecution” on
account of religion for purposes of withholding of removal. See
8 U.S.C. § 1231(b)(3); see also Dankam, 495 F.3d at 124 (Because
16
of the higher standard of proof, “[petitioner’s] failure to
establish eligibility for asylum necessarily means she cannot
demonstrate eligibility for withholding of removal under the
INA.”).
So, too, do we affirm the Board’s decision with regard to
Chen’s application for relief under the CAT, which “prohibits
the United States from returning any person to a country where
the person has demonstrated that it is more likely than not that
he will be tortured if returned to such country.” Zelaya, 668
F.3d at 161. Chen bore the burden of proving eligibility for
relief under the CAT, and the Board concluded that he had not
“establish[ed] that he would more likely than not face torture
by or with the acquiescence . . . of the government of China
upon return to China.” (J.A. 4.) In light of the general and
vague record Chen developed to support his claim before the IJ,
substantial evidence supports that decision as well.
III
For the aforementioned reasons, Chen’s petition for review
is
DENIED.
17
DAVIS, Circuit Judge, dissenting:
In this case the Attorney General asks us to accept an
adverse credibility determination based on missing details that
the Attorney General never mentioned before the IJ and that the
IJ never requested of petitioner. See infra n.6. But “[u]nlike
an Article III judge, an IJ is not merely the fact finder and
adjudicator, but also has an obligation to establish and develop
the record.” Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). 1
Indeed, an IJ is statutorily required to “interrogate, examine,
and cross-examine the alien and any witnesses.” 8 U.S.C. §
1229a(b)(1).
Consistent with this responsibility, “[a]n IJ must offer a
specific, cogent reason for rejecting evidence, whether
testimonial or documentary, because it lacks credibility.” Tassi
v. Holder, 660 F.3d 710, 720 (4th Cir. 2011) (emphasis added).
1
Accord Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir.
2008) (“Unlike Article III courts, an immigration court is a
more inquisitorial tribunal. Congress has given immigration
judges the authority to ‘interrogate, examine, and cross-examine
the alien and any witnesses.’”) (quoting 8 U.S.C. §
1229a(b)(1)); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14
(1st Cir. 2004) (recognizing an IJ’s duty “to fully develop the
record”). See also Richardson v. Perales, 402 U.S. 389, 410
(1971) (observing that an administrative law judge “acts as an
examiner charged with developing the facts”); Charles H. Koch,
Jr., 2 Administrative Law & Practice § 5:25 (3d ed.) (“The
administrative judge is pivotal to the fact-finding function of
an evidentiary hearing and hence, unlike a trial judge, an
administrative judge has a well-established affirmative duty to
develop the record.”).
18
“Examples of specific and cogent reasons include inconsistent
statements, contradictory evidence, and inherently improbable
testimony . . . .” Tewabe v. Gonzales, 446 F.3d 533, 538 (4th
Cir. 2006) (internal quotation marks omitted). We have never
said that lack of specificity, in and of itself, is enough for
an adverse credibility determination--and for good reason.
Because
the list of circumstantial details can be expanded
indefinitely, a legal standard that empowers an IJ
or the [Board] to rule against a petitioner who
fails to anticipate the particular set of details
that the fact-finder desires (but does not request,
through questions directed to the applicant) is no
standard at all. It would enable the administrative
decisionmaker to reject whichever applicants that
fact-finder happens to disfavor.
Ming Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 123
(2d Cir. 2006) (emphasis in original) (quoting Jin Shui Qiu v.
Ashcroft, 329 F.3d 140, 151–52 (2d Cir. 2003)). Accordingly, we
should adopt the view of the Second Circuit and hold that
in a proceeding wherein an alien seeks relief from
removal, a finding of testimonial vagueness cannot,
without more, support an adverse credibility
determination unless government counsel or the IJ
first attempts to solicit more detail from the alien.
Li v. Mukasey, 529 F.3d 141, 147 (2d Cir. 2008). 2
2
The Second Circuit has emphasized that its rule is “not
tantamount to a duty to assist the counseled asylum applicant in
putting forward an affirmative asylum claim in the first place.”
Li, 529 F.3d at 148 n.5 (internal quotation marks omitted). Nor
do I favor any such rule. Rather, like the Second Circuit, I
(Continued)
19
We already impose a similar rule with respect to adverse
credibility determinations based on the lack of corroborating
evidence. See Lin-Jian v. Gonzales, 489 F.3d 182, 191 (4th Cir.
2007) (“The requirement that the applicant provide a reasonable
explanation for the lack of corroborating evidence ‘presumes
that the IJ offers a petitioner an opportunity to explain the
absence.’”) (emphasis added) (quoting Obale v. Attorney Gen. of
the United States, 453 F.3d 151, 163 (3d Cir. 2006)). And the
Second Circuit’s rule on testimonial vagueness is consistent
with the statute governing adverse credibility determinations,
which permits an IJ to consider, inter alia, the “responsiveness
of the [asylum] applicant,” 8 U.S.C. § 1158(b)(1)(B)(iii)
(emphasis added); the statute says nothing about the specificity
simply would not sustain a result adverse to the applicant under
circumstances in which the IJ has carried out an ambush by
abjuring questions that are easily answered and that would no
doubt provide an adequate level of “specificity,” the absence of
which the IJ later relies on to reject the applicant’s claim to
asylum. As explained in text, such a practice is wholly
incompatible with the IJ’s responsibilities under law.
The majority’s studied dismissiveness of this line of
Second Circuit authority is notable, considering Chen’s removal
proceedings commenced in New York. No doubt, he and his counsel
now wish he had remained there rather than relocating to
Virginia and moving to transfer venue.
20
of an applicant’s testimony. 3 See, e.g., Holland v. Florida, 130
S. Ct. 2549, 2562 (2010) (observing that, under “the
interpretive maxim inclusio unius est exclusio alterius,” “to
include one item . . . is to exclude other similar items”).
Here, the adverse credibility determination was based on
Chen’s failure to provide details that neither the IJ nor the
government requested: “how many people were praying with [Chen]”
when he was arrested in China, “where they were praying,” “how
physically he and others were abused, what happened to other
church members who allegedly were with him,” and whether the
pastor also was arrested. J.A. 73. Because the IJ did not
request these details, the adverse credibility determination “is
not based on a specific, cogent reason, but, instead is based on
speculation, conjecture, or an otherwise unsupported personal
3
The statute also permits adverse credibility
determinations on the basis of
the demeanor [and] candor . . . of the applicant
or witness, the inherent plausibility 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 considering the circumstances under which
the statements were made), the internal consistency of
each such statement, the consistency of such
statements with other evidence of record (including
the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in
such statements . . . .
8 U.S.C. § 1158(b)(1)(B)(iii). The IJ relied on no such
considerations in this case.
21
opinion,” and, thus, “it cannot be upheld.” Tewabe, 446 F.3d at
538. 4
I invite the reader to turn back and reread pages 2 through
6 of the majority opinion. Is the narrative there incomplete or
incoherent? Is the reader left wondering what happened to Chen
that prompted his escape from China? Does the reader discern any
implausibility or telling gaps in the narrative? The answer to
each query is no. Notably, moreover, the majority has provided
only a cursory summary of the detailed testimonial and
documentary evidence that was before the IJ. 5 The documentary
4
The majority states that “the IJ’s adverse credibility
determination and the Board’s affirmance thereof flowed directly
from their overarching concerns about the lack of detail and the
general, vague nature of Chen’s testimony.” Ante, at 12. In
support of this statement, the majority asserts that “the IJ
must assess, inter alia, whether an applicant’s testimony
‘refers to specific facts sufficient to demonstrate that the
applicant is a refugee’ and whether that testimony is
‘credible.’” Id. at 11 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).
In fact, the standard cited by the majority applies only when
the applicant seeks to meet his burden of proof without
corroborating evidence. 8 U.S.C. § 1158(b)(1)(B)(ii). Moreover,
the cited language appears nowhere in the Board’s brief order
affirming the IJ’s decision. The Board “act[ed] on improper
grounds” by affirming on the basis of the flawed credibility
determination, and the majority is “powerless to affirm . . . by
substituting what it considers to be a more adequate or proper
basis.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), quoted
in Crespin-Valladares v. Holder, 632 F.3d 117, 123 (4th Cir.
2011).
5
For example, the majority asserts simply that Chen “became
depressed” after breaking up with his girlfriend in 2003, ante,
at 2–3, but the evidentiary record is perfectly clear and
undisputed that the break-up had such a profoundly distressing
(Continued)
22
effect on Chen that he contemplated suicide. Whatever the IJ may
or may not believe, we Americans are not alone in our
familiarity with the sometimes bleak lives of twenty-year-olds,
as Chen then was, at moments of deep emotional loss. It was at
this low point in Chen’s life that his friend, Jiang Zhi Yong, a
devout Christian who remains in China and whose affidavit is in
the record, introduced Chen to the underground, i.e., the
authentic, Christian experience. Chen’s mother’s affidavit
confirms this account. Chen was baptized four years later, in
2007.
As he did with all of the confirmatory documentary
evidence, the IJ simply ignored this highly detailed and
specific aspect of Chen’s narrative. With all due respect for my
friends in the majority, their assertion that “[t]he IJ
thoroughly reviewed the evidence Chen did present in support of
his case,” ante, at 12–13, is demonstrably untrue. Rather than
assess and evaluate the whole record and reach a judgment as to
the overall persuasiveness of what was presented, the IJ simply
ticked off distinct items of evidence as if they comprised some
form of checklist, pausing at each simply to identify what the
particular item of evidence did not show. See, e.g., J.A. 44
(observing that Chen “lives in Virginia” but “had a difficult
time giving the address where he lives,” which was already in
the record and undisputed). The IJ concluded that Chen “ha[d]
not met his burden of proof to show that whatever may have
occurred to him was such as to have constituted past
persecution.” Id. at 74. The Board went further and declared
Chen’s testimony “incredible.” Id. at 4.
The majority’s less-than-bold assertion that neither the
IJ’s oral decision (rendered immediately at the end of the
evidentiary hearing) nor the Board’s one-page decision affirming
the IJ “is a model of clarity,” ante, at n.6, is charitable in
the extreme. In any event, the majority’s faint-hearted attempt
to rest its denial of relief here on the ipse dixit of a merger
of principles related to insufficiency of evidence on the
merits, on the one hand, and credibility of documentary and
testimonial evidence, on the other hand, fares no better than
the Board’s attempt. Both are utter failures because the IJ
relied exclusively on a lack of credibility, as evidenced by his
reference to “whatever may have occurred to [Chen].” J.A. 74.
And the IJ offered no “specific, cogent reason”--in the face of
Chen’s testimony and corroborating documentary evidence--for his
(Continued)
23
evidence, in particular, is fulsome and is not in any manner
inconsistent with the testimonial evidence, nor is any of the
evidence inherently implausible or inherently unbelievable.
Accordingly, we should grant the petition for review, vacate the
Board’s order, and remand for further proceedings.
Indeed, it is highly doubtful that my friends in the
majority disagree with what I have written; the law is clear.
This is made evident by the majority’s curious footnotes 5 and 6
and related text. See ante, at 13, and nn. 5 & 6. What is
revealed therein is that the majority does not believe Chen has
adduced sufficient evidence of past or future persecution, not
that his credibility is wanting. 6 Undeniably, this substitution
disbelief that Chen was arrested and beaten by Chinese
authorities. See Tassi, 660 F.3d at 720.
6
Indeed, like my colleagues in the majority, even the
second-year law student who represented the government before
the IJ fully understood that this is a sufficiency of the
evidence case, not a credibility case. Her abbreviated closing
argument consisted entirely of the following:
It is the Government’s position that the
respondent has not met his burden of proof in
establishing that he was persecuted for his religious
beliefs. The respondent has not offered sufficient
testimony detailing how or why he became a Christian,
nor has he sufficiently testified as to any of his
church activities. The respondent offered insufficient
testimony regarding his detention and mistreatment by
the Chinese police. Finally, the respondent did not
provide sufficient corroboration in evidence of
religious beliefs, church activities, or any
(Continued)
24
of a reason to deny Chen’s petition for review is flatly
prohibited by binding circuit precedent. See Crespin-Valladares
v. Holder, 632 F.3d 117, 123 (4th Cir. 2011).
Respectfully, I dissent.
mistreatment by government officials in China. It is
therefore the position of the Government that
respondent is not eligible for relief for asylum.
J.A. 49 (emphases added).
25