He Chun Chen v. Ashcroft

• Decision Date: 26 July 2004
• Docket Number: No. 03-2155.,03-2155.
• Citation: 376 F.3d 215
• Parties: HE CHUN CHEN, a/k/a He Zhong Chen v. John ASHCROFT, Attorney General of the United States, Respondent He Chun Chen, Petitioner.
• Court: U.S. Court of Appeals — Third Circuit

376 F.3d 215

HE CHUN CHEN, a/k/a He Zhong Chen v. John ASHCROFT, Attorney General of the United States, Respondent He Chun Chen, Petitioner.

No. 03-2155.

United States Court of Appeals, Third Circuit.

Argued June 28, 2004.

Filed July 26, 2004.

COPYRIGHT MATERIAL OMITTED

Bruno J. Bembi (argued), Hempstead, NY, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Earle B. Wilson, Douglas E. Ginsburg, John D. Williams, Terri J. Scadron, Joshua E. Braunstein (argued), Efthimia S. Pilitsis, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before AMBRO, BECKER, and GREENBERG, Circuit Judges.

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on He Chun Chen's petition for review of a decision of the Board of Immigration Appeals ("BIA") dismissing his appeal from an order of an Immigration Judge ("IJ") denying his application for asylum and withholding of removal or in the alternative for protection under the Convention Against Torture. Inasmuch as we find that substantial evidence in the record supports the findings of both the IJ and the BIA, we will deny the petition.

II. FACTUAL AND PROCEDURAL HISTORY

Chen, a native and citizen of the People's Republic of China, arrived in the United States at Los Angeles International Airport on December 23, 1999, and applied for admission without valid entry documents. On February 22, 2000, the Immigration and Naturalization Service ("INS"), whose functions since have been transferred to the Department of Homeland Security, initiated removal proceedings against Chen by serving him with a notice to appear. At a hearing before an IJ in which he was represented by counsel, Chen conceded removability but indicated that he intended to seek political asylum, withholding of deportation, and protection under the Convention Against Torture. Chen predicates his claims on allegations that Chinese authorities forced his wife to terminate two pregnancies and caused her to be sterilized forcibly in accordance with the coercive family planning practices of the Chinese government. He also alleges that the Chinese authorities ransacked and closed his bookstore because he sold Falun Gong literature.

In recognition of the circumstance that the IJ and the BIA premised their denial of his application on Chen's lack of credibility, we will recount his testimony in detail. Chen testified at an October 4, 2000 hearing before the IJ that he is from Fuzhou City in the Fujian Province of China, where he graduated from high school in 1981. From 1981 through 1996 Chen worked in construction and in 1996 he opened a bookstore. Chen married Ha Yun Ni on October 27, 1994, who, on August 20, 1995, gave birth to a daughter. One month later the government family planning authorities took his wife to Guan Tou Hospital for insertion of an intrauterine device ("IUD") to prevent pregnancy. According to Chen, the family planning regulations required the insertion of an IUD after the birth of a child but, after four years, permit a family to request permission to have another child.

Chen testified that the IUD must have failed because in early 1996 his wife discovered that she was pregnant. According to Chen, the family planning authorities required his wife once every three months to go for "inspections" to check on her IUD and ensure that she was not pregnant. When Chen's wife did not go for the scheduled inspection of her IUD by the authorities, they came on April 26, 1996, to the family home to find her. At that time Chen was at his bookstore. When he returned home that night his wife told him that the authorities had taken her to Lian Jiang Hospital and forced her to undergo an abortion against her will. Chen said that while his wife did not tell him about the procedure in detail, she did mention that she was given a shot. On the same day as the abortion the authorities also forced her to have another IUD inserted.

Chen testified that in 1998 he petitioned for permission to have a second child. The authorities denied this request, citing the earlier violation of the family planning policy. Unbeknownst to the Chinese government, he and his wife then decided to elicit the assistance of a private physician to remove the IUD, and in April 1998 Chen's wife had the IUD removed. One month later in May 1998 Chen's wife discovered that she was pregnant again. When the authorities notified her that it was time for an inspection of the IUD in July, Chen's wife went into hiding at her parents' house in Guan Tou. On August 31, 1998, the authorities found Chen's wife at her parents' home and took her to Lian Jiang Hospital for another forced abortion. As with the first abortion, Chen's wife was given a shot. The authorities also inserted another IUD on the same day. The following year Chen again submitted a request to the Chinese government to have another child but this time the authorities granted the request. In October 1999 Chen's wife discovered that she was pregnant.

Chen also testified before the IJ that he sold Falun Gong books by Li Hong Zhi in his bookstore from April 1996 through April 1999, when the Chinese government destroyed and closed the store. Government cadres came to his store and notified him that he no longer could sell Falun Gong books. According to Chen, the government officials explained that Falun Gong was an evil religion. Nevertheless, even though he was warned not to sell the Falun Gong books, Chen continued to do so because it was profitable. Chen testified that he received a second warning that he should cease all sales of Falun Gong materials. Chen, however, informed an immigration officer in California in February 2000 that the Chinese government gave him "a" warning about selling Falun Gong books. AR¹ at 199-200.

Chen testified that he was not a member of Falun Gong, but only sold its books, though at the airport interview conducted on the day of his arrival in the United States, Chen told an immigration official that he was a practitioner of Falun Gong. When asked by the IJ why he made this statement even though it was not true, Chen responded that "[t]he smuggler taught me to say that, they said that I have to say that. They said, they told me not to say anything else, just say I am a Falun Gong follower." AR at 202. Chen, however, never mentioned anything at his airport interview about his family's difficulties with the family planning policies in China.

Chen testified that when he refused to heed the cadres' warnings, the Chinese authorities in May 1999 confiscated his books, destroyed the bookstore, and closed it down. Chen then went into hiding. He testified that he stayed with an uncle in Changle City until November 1999, though in an earlier interview with United States immigration authorities Chen stated that he stayed with a relative until September 1999. When confronted with this inconsistency during the immigration hearing Chen responded "[m]aybe I made a mistake?" AR at 200.

Two months later on December 21, 1999, Chen left China with the assistance of "snakeheads." Chen traveled to Hong Kong, then to Jakarta, Indonesia, on to Malaysia and finally to Los Angeles. Chen testified that he left China because he knew that if his wife gave birth to a son, she definitely would be sterilized. He explained that his wife did not come to the United States because she was pregnant and not feeling well.

On July 13, 2000, Chen's wife gave birth to a son. Two months later, on September 6, 2000, the Chinese authorities sterilized his wife. Inasmuch as Chen was in the United States when his wife was sterilized, he obtained the information that he provided at the hearing about the sterilization from her. In this regard the IJ questioned Chen why his wife would be sterilized inasmuch as he was already in the United States and therefore there seemed little risk of pregnancy. Chen responded that "[t]hey don't care, as long as you gave birth to two, two children, and then they don't care, either the male or the female must be sterilized." AR at 173.

According to Chen, his wife stayed at her mother's home after he left China, but she had to return to their home because it was the anniversary of the death of Chen's mother. Chen testified that the authorities found his wife at their home and brought her to Mawei Hospital for the sterilization. A letter submitted by Chen from his wife states, however, that the family planning officials found her at her parents' home and took her for the sterilization from there.

Chen testified that he was applying for political asylum because he violated China's family planning policies and sold Falun Gong books in his bookstore. He indicated that he feared returning to China because he might be sterilized. When the IJ asked why the authorities would sterilize him inasmuch as his wife already had been sterilized, he stated that he would not be sterilized and had "made a mistake." AR at 185.

At the conclusion of the hearing, the IJ issued an oral decision denying Chen relief. In particular, the IJ found that Chen failed to establish a well-founded fear of persecution, a necessary showing for him to be eligible for asylum. Therefore, the IJ found that it was not necessary to consider whether Chen was eligible for relief as a matter of discretion. The IJ also denied Chen's application for withholding of removal and found that Chen had not shown that more likely than not he would be tortured if he returned to China, and, accordingly, he did not merit protection under the Convention Against Torture.

In reaching his conclusions, the IJ found that Chen's testimony lacked credibility in several respects. First, the IJ explained that he found Chen's testimony that on two occasions his wife had an IUD inserted on the same day she had an abortion as "not only incredible but also implausible." The IJ reasoned that "due to the physical trauma of an...