Chun v. I.N.S. ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-40330
Summary Calendar
_____________________
ZHU YU CHUN
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondents.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(A72 756 787)
_________________________________________________________________
(October 26, 1994)
Before KING, JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner, Zhu Yu Chun ("Chun"), a native citizen of the
People's Republic of China, entered the United States without
inspection. Respondents, the Immigration and Naturalization
Service ("INS"), charged her with deportability under 8 U.S.C. §
1251(a)(1)(B) and issued her a notice to show why she should not
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
be deported. In the proceedings before the Immigration Judge
("IJ"), Chun conceded deportability but requested asylum and
withholding of deportation. The IJ found Chun not credible, and
in the alternative, even if credible, not eligible for asylum or
withholding of deportation. On appeal, the Board of Immigration
Appeals ("BIA") affirmed both the IJ's credibility finding and
alternative holding. Chun challenges the action of the BIA. We
affirm.
I. FACTS AND PROCEDURAL HISTORY
Chun is a 37 year-old native and citizen of China who
entered the United States without inspection on or around April
16, 1993. She claims to have been fleeing the Chinese government
who was persecuting her for violating China's birth control
policy of one child per family. Chun has five children.
Chun testified that the government began persecuting her in
1977 when she was six months pregnant with her third child. The
government tried to force her to have an abortion, and took her
husband to a brigade to pressure him into aborting the child.
Her husband committed suicide while in the brigade. Chun
remarried in 1980 and had another child, her fourth, in 1981. A
few days after the birth of this child, Chun testified that some
men from the government took her to a hospital and tried,
unsuccessfully,1 to sterilize her against her will.
1
The procedure was unsuccessful because it was attempted
too soon after she had given birth. Before Chun was allowed to
leave the hospital several days later, Chun had to buy a bond
which would be refunded when she returned in three months to be
sterilized. Chun never returned for the sterilization procedure.
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Chun and her family moved to another village to evade the
government. Then in 1984, she gave birth to her fifth child.
She did not register this child with the authorities. Chun
apparently had no further problem with the government until
November of 1992, when her husband returned to their home village
to visit his sick brother. The authorities detained Chun's
husband and asked him if he was the father of Chun's fifth child.
When he refused to answer, he was severely beaten, after which he
admitted he was the father. Upon hearing of these events, Chun
went into hiding. Chun testified that while she was in hiding,
the government looted and ransacked her house and closed down her
two clothing stores.
Chun was smuggled into the United States in April of 1993.
She testified that if she returned to China, she believed she
would either be put in jail or killed for violating the birth
control policy, for illegally leaving the country, or for owing
the government money. On these grounds, she requested asylum and
withholding of deportation. After a hearing where the IJ
observed Chun's demeanor and listened to her testimony, he
determined that Chun was not credible. The IJ also found that
even if Chun was credible, she had not established her
eligibility for asylum or withholding of deportation. The BIA
affirmed the IJ's decision on both grounds.
II. STANDARD OF REVIEW
We are authorized to review an order of only the BIA, not
the IJ. Adebisi v. INS, 952 F.2d 910, 912 (5th Cir. 1992). We
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may review actions of the IJ only when they have some impact on
the BIA's decision. Id. In this case, the BIA specifically
adopted the credibility findings of the IJ; therefore, we may
review the findings of the IJ.
Furthermore, we must use the substantial evidence test to
review the BIA's factual conclusion that an alien is not eligible
for asylum. Id. (citing Campos-Guardado v. INS, 809 F.2d 285,
290 (5th Cir.), cert. denied, 484 U.S. 826 (1987)). This same
substantial evidence standard applies to the BIA's factual
conclusion that an alien is not eligible for withholding of
deportation. Id. (citing Zamora-Morel v. INS, 905 F.2d 833, 838
(5th Cir. 1990)).
Under substantial evidence review, we may not reverse the
BIA's factual determinations unless we find not only that the
evidence supports a contrary conclusion, but that the evidence
compels it. INS v. Elias-Zacarias, 112 S. Ct. 812, 815 n.1
(1992); Silwany-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir.
1992). In other words, the alien must show that the evidence was
so compelling that no reasonable factfinder could conclude
against it. Elias-Zacarias, 112 S. Ct. at 817; Silwany-
Rodriguez, 975 F.2d at 1160.
Moreover, it is the factfinder's duty to make determinations
based on the credibility of the witnesses. Vasquez-Mondragon v.
INS, 560 F.2d 1225, 1226 (5th Cir. 1977). We cannot substitute
our judgment for that of the BIA or IJ with respect to the
credibility of the witnesses or ultimate factual findings based
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on credibility determinations. Id. As we have previously made
emphatically clear, "[w]e will not review decisions turning
purely on the immigration judge's assessment of the alien
petitioner's credibility." Mantell v. INS, 798 F.2d 124, 127
(5th Cir. 1986).
III. DISCUSSION
After observing Chun's demeanor while testifying and
comparing her live testimony with her written application for
asylum, the truth of which she swore to, the IJ found that Chun
was not credible. In explaining his finding, the IJ emphasized
five inconsistencies in Chun's story, which are summarized as
follows.
First, Chun said in her asylum application that in 1977
while she was pregnant with her third child, the government
detained her first husband to pressure him into aborting the
child. However, on direct examination, Chun stated that her
husband was arrested because she hid from government officials
when they came to look for her.
Second, Chun testified at the hearing that after her first
husband committed suicide, the government officials discovered
his body, dragged it outside, and then all ran away. This is
inconsistent with her statement in her asylum application that
the government put his body on display to send a message to the
community about the consequences of violating the birth control
policy.
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Third, Chun testified upon cross-examination that after her
husband's death in 1977, she had no income and was treated poorly
by the community and therefore took her children and went from
town to town peddling fruit. This conflicts with her statement
in the asylum application that she did not begin selling apples
and fish until 1981, after she remarried in 1980.
Fourth, Chun testified that she had been hiding from the
government because of her fear of being arrested for violating
the birth control policy. This concept of hiding from the
government is inconsistent with her actions of going to the
government in 1987 and 1989 to obtain two government loans to
start clothing shops.
Fifth, Chun claimed repeatedly that the government did not
know about the birth of her fifth child in 1984. However, the
government apparently detained and beat her second husband in
1992 because of this child. Also, Chun indicated in her asylum
application that the government came to her home to speak with
her husband about the child as soon as she gave birth in 1984.
We conclude that the IJ's finding that Chun was not credible
is a reasonable interpretation of the record and therefore
supported by substantial evidence. Certainly, the opposite
conclusion, that Chun was credible, is not compelled by the
evidence. Therefore, we may not reverse this finding. Elias-
Zacarias, 112 S. Ct. at 812 n.1, 817; Silwany-Rodriguez, 975 F.2d
at 1160. Furthermore, because it was the IJ's duty to determine
the credibility of the witnesses, Vasquez-Mondragon, 560 F.2d at
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1226, we will not reverse this decision, as it turns purely on
the IJ's assessment of Chun's credibility. Mantell, 798 F.2d at
127.
Without credible evidence, the BIA had no basis upon which
to grant asylum or withhold deportation. Because we find that
Chun's lack of credibility is an adequate ground for affirming,
we do not address the BIA's alternative holding that even if Chun
were credible, she would not be eligible for relief.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
BIA.
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