Chen v. Gonzales

• Citation: 434 F.3d 212
• Decision Date: 30 December 2005
• Docket Number: No. 03-4887.,03-4887.
• Parties: Xia Yue CHEN, Petitioner v. Alberto R. GONZALES, Attorney General of the United States Respondent.
• Court: U.S. Court of Appeals — Third Circuit

434 F.3d 212

Xia Yue CHEN, Petitioner v. Alberto R. GONZALES, Attorney General of the United States Respondent.

No. 03-4887.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a): January 13, 2005.

Filed December 29, 2005.

As Amended December 30, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Norman K.W. Wong, New York, NY, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Margaret J. Perry, Senior Litigation Counsel, Mary Jane Candaux, Douglas E. Ginsburg, Jennifer L. Lightbody, John D. Williams, United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, for Respondent.

Before SCIRICA,^* Chief Circuit Judge, ROTH, Circuit Judge, and IRENAS,^** Senior District Judge.

IRENAS, Senior United States District Judge.

Petitioner Yue Xia Chen ("Chen") petitions for review of the decision of the Board of Immigration Appeals ("BIA") denying her application for asylum, withholding of removal, and protection under the Convention Against Torture. The focus of Chen's argument is that she was subject to a forced abortion which made her eligible for refugee status in this country. The principal issue on this Petition for Review is whether the Immigration Judge ("IJ") properly determined that her testimony on this issue lacked credibility and was insufficiently corroborated. Although we find that the IJ did not make the separate credibility finding required by In re S-M -J-, 21 I. & N. Dec. 722, Interim Decision 3303 (BIA 1997), 1997 WL 80984, his decision to deny the Petition for Review based on a determination that Chen did not meet her burden of proof by adequately corroborating her story was a proper application of the principles set forth in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001).

I.

Chen, a citizen of the People's Republic of China, entered the United States at St. John in the United States Virgin Islands without inspection on or about October 20, 2001. The INS issued a Notice to Appear, alleging that Chen was inadmissible because she was present in the United States without being admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Such a person is removable under 8 U.S.C. § 1227(a)(1). Chen conceded her removability, but filed an application for asylum under 8 U.S.C. § 1158 and withholding of removal under 8 U.S.C. § 1231(b)(3), and sought protection under the Convention Against Torture.¹ Following a hearing, an Immigration Judge ("IJ") denied her application on October 1, 2002. Chen appealed the IJ's decision to the BIA, which affirmed the IJ's decision without opinion on December 16, 2003. This Petition for Review followed.

II.

To qualify for asylum, Chen must demonstrate that she meets the statutory definition of "refugee" under the Immigration and Nationality Act, which states generally that a refugee is:

[A]ny person who is outside any country of such person's nationality. . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. . . .

8 U.S.C. § 1101(a)(42). This definition has been amended to specifically address Congress' concern with coercive family planning practices, by providing, inter alia, that anyone who has been "forced to abort a pregnancy . . . shall be deemed to have been persecuted on account of political opinion." Id.

Withholding of removal does not rely on the perspective of the applicant's well founded fear, but is instead appropriate only if the Attorney General determines that there is a "clear probability" that the alien's life or freedom would be threatened upon her removal to a particular country. INS v. Stevic, 467 U.S. 407, 412, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); see also 8 U.S.C. § 1231(b)(3)(A).

The Convention Against Torture has been implemented by regulations codified at 8 C.F.R. §§ 208.16 and 208.18 which require withholding of removal for an alien who can show that it is more likely than not that she will be tortured by the government or with its acquiescence upon removal to a particular country. The regulations define torture as "an extreme form of cruel and inhuman treatment," but not "lesser forms of cruel, inhuman or degrading treatment or punishment not constituting torture." 8 C.F.R. § 208.18; see also 8 U.S.C. § 1231 note (1998) (United States Policy With Respect to the Involuntary Return of Persons in Danger of Subjection to Torture).

III.

Where, as here, the BIA affirms the IJ's decision without opinion, "we review the IJ's opinion and scrutinize its reasoning." Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.2003) (en banc). Review of an IJ decision is conducted under the substantial evidence standard which requires that administrative findings of fact be upheld "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.2005). "Adverse credibility determinations are factual findings subject to substantial evidence review." Id.; Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). We will defer to and uphold the IJ's adverse credibility determinations if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole," INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), but such findings must be based on inconsistencies and improbabilities that "go to the heart of the asylum claim." Id.; see also Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).² "[D]eference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record as a whole." Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998).

IV.

A.

We begin with Chen's asylum claim. At the hearing before the IJ Chen testified³ that she was born on January 1, 1980, in a village in Fujian Province. In 1999 she began working as a salesperson in a store associated with a privately owned jewelry factory. Chen became romantically involved with a young man who worked at the factory. Both of them lived for some time in a dormitory provided for the company's workers. Toward the end of February, 2000, Chen suspected she was pregnant and told her boyfriend. On March 1, 2000, they went to a private doctor recommended by a manager at the factory. This doctor confirmed that she was approximately one month pregnant, although the record does not include the name of the doctor, an affidavit from the doctor, or any medical records maintained by the doctor.

According to Chen's testimony, Chinese law permits 20 year-old women to marry. However, she could not marry her boyfriend because he was not yet 22 years of age, the minimum legal age of consent for a man. A few days after her visit to the doctor she went to live with her paternal aunt to "hide," having obtained a three-month leave of absence from her employer on the pretext of needing to care for her grandfather. This decision was based on her belief that Chinese officials would not allow her to have the baby.

Chen testified that on April 20, 2000, four "village cadres"⁴ came to her aunt's house, where Chen was hiding to conceal her pregnancy, and told her that they had learned from the neighbors that she was pregnant. How these neighbors or the cadres learned of her pregnancy is not explained. She was obviously trying to keep it a secret, and it does not appear that her pregnancy was yet visible. Indeed, she denied being pregnant but was told by the cadres that she still needed to go with them and submit to a physical examination. Chen testified that she was taken to the hospital where she was forced to undergo an abortion. She stated that while at the hospital she begged the cadres to let her go home and actually resisted them. At that point, two of the cadres held her hands and a third cadre repeatedly slapped her and called her a "shameless woman from my village." (AR 59.) Chen stated that she lost her will to resist and collapsed, at which point two doctors dragged her into an operating room and performed the abortion.

B.

Corroboration is not necessarily required to establish a petitioner's right to asylum, and relief may be granted solely on the credible testimony of the applicant. 8 C.F.R. § § 208.13(a), 208.16(b). In asylum and withholding of removal cases, however, the BIA has adopted rules which require corroboration in instances where it is reasonable to expect such proof from a witness and there is no satisfactory explanation for its absence. In re S-M-J-, 21 I. & N. Dec. 722, Interim Decision 3303, 1997 WL 80984 (BIA 1997). These rules were sustained in Abdulai v. Ashcroft, 239 F.3d 542, 551-552 (3d Cir.2001), in which the Court observed that even where an applicant is credible, corroboration may be required if the applicant is to meet her burden of proof. Id. at 554.⁵

The Real ID Act of 2005 provides that "[no] court shall reverse a determination made by the trier of fact with respect to the availability of corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable." § 101(e), Pub.L. No. 109-13, 119 Stat. 231, 305, to be codified at 8 U.S.C. § 1252(b)(4)(D). This provision was effective on passage of the REAL ID Act, May 11, 2005, and applies to any case "in which the final administrative removal order is or was issued before, on, or after such date." Id. § 101(h)(3), 119 Stat. at 305-306. See Zheng, 417 F.3d at 383 n. 2. Thus, this standard of review applies in this case.

C.

Chen's only corroboration for her version of events was an unsworn letter from her father, who was still in China, stating that Chen had been seized by ...