CHEN v. HOLDER, 09-4469
| Decision Date | 08 April 2011 |
| Docket Number | No. 09-4469,09-4469 |
| Parties | ZHI ZENG CHEN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
ON REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
Before: SUTTON and KETHLEDGE Circuit Judges; and HOOD, Senior District Judge.*
Petitioner Zhi Zeng Chen ("Petitioner") seeks judicial review of a November 20, 2009, decision of the Board of Immigration Appeals ("BIA"), which dismissed Petitioner's appeal from the immigration judge's decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Petitioner argues that his due process rights have been violated because the immigration judge erroneously concluded that his application for asylum was untimely and because incompetent interpretation during the proceeding before the Immigration Court prevented him from having a full and fair hearing. He argues, as well, that the decision to deny his applications was not supported by substantial evidence because the immigration judge erroneously concluded that his testimony was not credible and, thus, that his claims were without support.
For the reasons which follow, we DENY the relief requested in the Petition.
Petitioner is a native and citizen of the People's Republic of China. He arrived in the United States at or near the Miami International Airport on November 27, 2004, without valid entry documents. A credible fear interview was conducted on December 9, 2004. During that interview, Petitioner testified, under oath, that he had been mistreated, threatened, and slapped by members of a Falun Gong group of which he was a member. He also testified that he feared the Falun Gong group because they had threatened to kill him when he tried to distance himself from the group after he witnessed them participating in activities declared illegal by the Chinese government. At the same time, Petitioner explained that he feared that government authorities could arrest him because he attended Falun Gong meetings. Chen's case was referred to an immigration judge in Miami.
On March 24, 2005, Petitioner filed a motion to change venue to the United States Immigration Court located in New York, New York, admitted the allegations set forth in the Notice to Appear, and conceded the charge of removability. His motion was granted on April 11, 2005, and Petitioner appeared at the New York Immigration Court on June 22, 2005. There, he requested relief in the form of asylum, withholding of removal, and protection under the Convention Against Torture. He was notified that he should return to the court on August 24, 2005, with his applications for relief, or his applications would be deemed abandoned.
On August 12, 2005, Petitioner sought to change venue to the Immigration Court in Cleveland, Ohio, and his motion was granted on August 23, 2005. Petitioner appeared there for the first time on November 29, 2006. On August 1, 2007, Petitioner submitted applications for asylum, withholding of removal, and protection under the Convention Against Torture to the Immigration Court in Cleveland and requested an individual hearing date on his applications. In his applications, Chen indicated that he was seeking relief based on religious grounds, namely his new-found Christian faith. He explained that, since his arrival in the United States, he had been learning about Christianity from his uncle and attending church in New York and, later, Ohio. He stated that he feared persecution as a Christian in China. He also admitted that he did not tell the truth to the immigration officer who conducted his credible fear interview, explaining that he told the immigration officer what the "snakehead," or human smuggler, had told him to say for fear that he would be sent back to China.
A removal hearing was conducted on February 27, 2008, before the United States Immigration Court in Cleveland with the assistance of an interpreter, who provided translation of the proceedings in English into Mandarin Chinese for Petitioner and translation of his responses into English for the benefit of the court. During that hearing, Petitioner testified that, after his arrival in the United States and while living in Cambridge, Ohio, he would visit his uncle in New York every six weeks. During those visits, his uncle, a Christian, told him about the Bible and took him to the Grace Fujinese Church, where services were held in the Fu-zhou dialect. Eventually, his uncle referred him to a church in Ohio, but, because the services there were in English, Petitioner decided to continue attending services at the Grace Fujinese Church. He would travel to New York two or three times a month by bus on Saturday night, returning to Ohio on Sunday night or Monday. Petitioner's uncle was unable to testify at the hearing because he was in the hospital after breaking his spine.
Petitioner confirmed during cross-examination that he did not tell the truth during his credible fear interview nor could he recall what reason he gave the immigration officer for his fear of returning to China, even though he estimated his testimony during that interview to be "fifty percent true, fifty percent false." He admitted that he had never practiced Falun Gong in China, had never been harmed or threatened by a member of a Falun Gong group, and never had a fear of returning to China due to any practice of or association with Falun Gong.
Petitioner testified alternatively that he had forgotten why he came to the United States, that he was smuggled into the United States, and that he came to the United States because there is freedom of religion. He also testified that he began attending church services on Sundays at the Grace Fujian Church once a month in April 2005 and that he attended the church 23 and 28 times, respectively, in 2006 and 2007. Petitioner submitted a letter from the minister at the Grace Fujian Church stating that Petitioner had been attending the Church for Wednesday services since June 24, 2007. When questioned about the discrepancy with his own testimony concerning the length of time that he had attended the church and for which services he attended during the week, he explained that there was a mistake because he did not attend Wednesday services and that the date could be explained because he had not registered or signed in at the church when he first attended.
During the hearing, Petitioner testified that, prior to becoming a Christian, he was a Taoist. When asked if action had ever been taken against him by the Chinese authorities for being Taoist or practicing Taoism, he testified that he was arrested in July 1998 and detained for two months for practicing Taoism because the police said that Taoism was a form of superstition. The incident was not listed on his asylum application. Petitioner testified that he had not discussed his Taoism or the 1998 incident in his application for asylum because he "didn't know [he] should write it down." [AR at 122.]
Petitioner also testified that a different attorney than the one representing him at the hearing had filed an asylum application for him sometime in 2005, distinct from the 2007 application in the record. He did not have a copy of the purported 2005 application. Nonetheless, Petitioner's attorney, Stuart Altman, stated to the court that his client was mistaken and that he had, in fact, sent an I-589 asylum application on November 14, 2005, to the Immigration Court in Cleveland. Altman was prepared to present an overnight mailing receipt to demonstrate that he had mailed an I-589 to the court's address at that time. Altman explained that it was not delivered because the opening of the Immigration Court was delayed and that the Cleveland court did not ultimately open its doors until September 2006.
At the conclusion of the hearing, the immigration judge found Petitioner removable and denied Petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture. As grounds for denying his applications, the immigration judge determined that Petitioner's application for asylum contained in the record was untimely because there was no evidence of any application for asylum filed within one year after his arrival in the United States, as required by 8 U.S.C. § 1158(a)(2)(B). He was not persuaded that any filing had even been attempted because, notwithstanding Altman's efforts to introduce an overnight mailing receipt as evidence of a timely filed application, Petitioner insisted that someone else had submitted that document, which was not available. The immigration judge continued, stating that the application for asylum would have been denied even if it had been timely filed because there was no persuasive evidence that he had experienced past persecution or that he had a subjectively real and objectively reasonable fear of future persecution on account of religion. The immigration judge stated that he believed Petitioner's testimony that he had been subject to past persecution as a Taoist to be fabricated and that he did not believe that Petitioner was an actively practicing Christian, his testimony to the contrary notwithstanding, because he found Petitioner's testimony on the whole to be incredible.
The immigration judge's credibility decision turned on the fact that he found Petitioner to be "not believable in any respect" because of (1) his previously demonstrated willingness to lie under oath, citing the false but "elaborate tale of persecution" which Plaintiff had crafted in the credible fear interview, (2) his demeanor, (3) the inconsistency of Petitioner's statements about attending a church on Sundays in New York almost half the weeks in a given year over the course of nearly three years with a letter from his minister stating that Petitioner had attended on Wednesdays...
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