Chen v. Attorney General of United States, 111009 FED3, 08-1614

Docket Nº:08-1614
Opinion Judge:RENDELL and AMBRO, Circuit Judges, and McVERRY, District Judge
Party Name:HE XIN CHEN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent
Attorney:Marco Pig none, III, Esq. [ARGUED] Getson & Schatz, Counsel for Petitioner He Xin Chen Paul Fiorini, Esq. [ARGUED] Richard M. Evans, Esq. U.S. Department of Justice Office of Immigration Litigation, Counsel for Respondent, Attorney General of the United States
Judge Panel:Before: RENDELL and AMBRO, Circuit Judges, and McVERRY District Judge.
Case Date:November 10, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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HE XIN CHEN, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent

No. 08-1614

United States Court of Appeals, Third Circuit

November 10, 2009

NOT PRECEDENTIAL

Argued: September 29, 2009

Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals BIA No. A97-849-384 Immigration Judge: Rosalind K. Malloy.

Marco Pig none, III, Esq. [ARGUED] Getson & Schatz, Counsel for Petitioner He Xin Chen

Paul Fiorini, Esq. [ARGUED] Richard M. Evans, Esq. U.S. Department of Justice Office of Immigration Litigation, Counsel for Respondent, Attorney General of the United States

Before: RENDELL and AMBRO, Circuit Judges, and McVERRY,[*] District Judge.

OPINION

RENDELL, Circuit Judge.

Petitioner He Xin Chen petitions for review of an order of removal issued by the Board of Immigration Appeals ("BIA"). We will deny the petition.

Background

Petitioner, a Chinese citizen, applied for asylum in 2003 after entering the United States. He claimed that, pursuant to China's family planning policy, officials mandated that he be sterilized because his wife had already given birth to one son. He submitted as evidence his wife's medical records, the sterilization order issued by the government in 2002, and a receipt issued in 1994 to petitioner and his wife when they paid a fine for having a child before marriage. On October 15, 2004, Immigration Judge Rosalind K. Malloy found petitioner's claims credible and determined that petitioner's "opposition to the family planning practices of China constitutes a political opinion" for which he would be persecuted upon returning to China. Pet. App. I, at 33. Judge Malloy granted asylum.

On March 21, 2005, Elaine Wooton, a forensic document examiner employed by U.S. Immigration and Customs Enforcement ("ICE"), sent a brief letter to an ICE attorney challenging the authenticity of the sterilization order and fine receipt submitted by petitioner. Wooton noted that the two documents bear nearly identical markings from a rubber stamp, and concluded that these impressions had been generated by the same stamp, at about the same time. If this were true, then it could not be the case, as petitioner claimed, that the fine receipt was issued in 1994 while the sterilization order was issued in 2002. (It is not clear what prompted Wooton to write this letter, or why it was not issued until five months after the asylum hearing.) On April 11, the Government moved to reopen the removal proceedings. On April 15, before petitioner could respond, Judge Malloy granted the motion and reopened the proceedings.1

On September 28, Gary Herbertson, also a forensic document examiner, sent a brief letter to petitioner's counsel regarding the authenticity of...

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