Chen v. Gonzales, 04-3965.

• Decision Date: 25 August 2005
• Docket Number: No. 04-3965.,04-3965.
• Citation: 420 F.3d 707
• Parties: Jinlong CHEN, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

420 F.3d 707

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

No. 04-3965.

United States Court of Appeals, Seventh Circuit.

Argued July 6, 2005.

Decided August 25, 2005.

Yongbing Zhang (argued), Wang, Leonard & Condon, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security Office of the District Counsel, Chicago, IL, Jaems J. Fredricks (argued), Gail Kursh, Department of Justice Civil Division, Washington, DC, for Respondent.

Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Jinlong Chen claims that he was detained and abused in his native China by police who wanted him to testify against the pastor of his under-ground church. This detention and abuse are not mentioned in Chen's initial asylum application, which he filed soon after arriving in the United States in 1993. Chen blames the omission on an agency that he says prepared the application without asking him about his history. The immigration judge ("IJ") did not credit this explanation and, finding other aspects of Chen's testimony also implausible, denied Chen's requests for asylum, withholding of removal, and relief under the United Nations Convention Against Torture. We conclude that the reasons the IJ gave for his decision are not supported by substantial evidence, and we therefore grant Chen's petition for review.

Chen says that in January 1992, a classmate at his high school in Changle, Fujian province, introduced him to Guoping Lin, the pastor of an unauthorized Christian church. Chen soon joined the church, and he and his classmate began proselytizing at their school. School officials notified the police, who arrested the two students. Over the next six days, the police repeatedly beat Chen (particularly in the face) and withheld food to force him to implicate Lin for the crime of "spreading an evil cult." Chen finally relented, signed a statement, and was released two days later. He was told to report to the police daily until Lin's trial ten days later, at which he was to testify. Unwilling to go through with testifying, Chen with his family's assistance arranged to escape to the United States on a smuggler's boat, paying $1,000 to the smuggler up-front and promising him another $24,000.

Chen arrived in New York without inspection on April 20, 1993. There, he saw an advertisement in a Chinese-language newspaper from an agency called "Xinlong" offering help applying for asylum. He contacted the agency and told them he was a Christian having problems with the Chinese government, but gave them little information beyond that. The agency then prepared an asylum application, which included a three-paragraph typewritten declaration in English describing Chen's participation in a "secret Christian fellowship" at his school and various actions taken against him by school authorities, such as confiscating his religious books and refusing to issue him a diploma upon graduation. The declaration made no reference either to Pastor Lin or to any episode of detention or abuse by police. Chen says that he signed the application without knowing its contents.

The application was filed, but nothing came of it until 2001, when Chen was placed in removal proceedings. The counsel Chen retained at that time prepared a new asylum application, containing Chen's own handwritten affidavit (in Chinese, with English translation) describing his relationship with Pastor Lin and his encounter with the police. At a hearing in May 2003, Chen testified concerning the events described in his affidavit and submitted corroborating letters from Pastor Lin (who ended up serving a six-year sentence for his unauthorized ministry) and Chen's high-school classmate (who spent eighteen months in a reeducation camp). He also claimed that the police were still asking his parents about his whereabouts, and expressed fear that if he returned to China he would be arrested and prosecuted both for his proselytizing activities and for obstructing justice by failing to testify against Pastor Lin.

The IJ found Chen's testimony not credible. He gave four reasons: (1) the abuse Chen claimed to have suffered was inconsistent with his account of what he did after being released (walking home three kilometers; not going to the doctor), and was unsupported by photographic or other evidence; (2) it seemed unlikely that Chen and his parents (who were indigent farmers) would be able in the space of a few days to arrange his smuggling and pay an up-front fee of $1,000; (3) Chen's central story of detention and abuse was not contained in his first asylum application; and (4) it seemed unlikely that the police would still care to pursue him after ten years for something he did when still in high school. The IJ therefore denied all of Chen's requested relief. The Board of Immigration Appeals affirmed in a one-paragraph decision, finding the IJ's credibility finding not clearly erroneous.

Chen now contends that none of the IJ's stated reasons for finding him not credible is supported by substantial evidence. See Huang v. Gonzales, 403 F.3d 945, 948 (7th Cir.2005). Although § 101(a)(3) of the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 302, 303, codified at 8 U.S.C. § 1158(b)(1)(B), changed the standards governing credibility determinations in asylum cases, our review in this case is unaffected because Chen's application was filed prior to the effective date of that amendment, which is not retroactive, see REAL ID Act § 101(h)(2), 119 Stat. at 305; Olujoke v. Gonzales, 411 F.3d 16, 22 n. 4 (1st Cir.2005).

We agree that there is not substantial evidence supporting the IJ's reasons for finding Chen not credible. First, the IJ found it implausible that Chen would be able to walk the three kilometers home from the detention center after being, as Chen described it, "tortured beyond recognition." But it is unclear how the facial disfigurement he claimed to have suffered would impair his ability to walk, nor is it clear that three kilometers is a particularly onerous distance. The IJ thought it unlikely that Chen would not have visited a doctor after such treatment, but he did not address Chen's explanation that his injuries were all external and sufficiently treatable at home. The IJ insisted that, besides Chen's testimony, there was "no other evidence attesting to his condition" after his beatings. But the nature of his injuries was corroborated in the letter of his classmate, which described meeting Chen briefly on the second day of their detention and seeing that he "had been tortured so brutally that I could barely recognize him right away," that there was "a big blue bump on his forehead," and that "[t]here were many cuts and bruises on his body." These statements are consistent with Chen's own testimony about his injuries ("[O]ne of the policemen pushed my head against the wall and cause [sic] a big bruise on my head and they also used different devices like a club, a police club to beat me.").

Second, the IJ found it implausible that Chen would be able, in the nine days between his release from detention and his escape from the country, to "make arrangements with a smuggler and have his poor farmer parents get together with relatives to pay $1,000 and make those arrangements to come all the way to the United States, which involved a couple of vessels and movements to reach his destination." This description exaggerates the complexity of Chen's voyage — the two boats Chen described were a "big boat" traveling directly from China to the United States, and a "small fishing boat" used to ferry him from the shore to...