Chun v. I.N.S.

• Decision Date: 26 October 1994
• Docket Number: No. 94-40330,94-40330
• Citation: 40 F.3d 76
• Parties: Zhu Yu CHUN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 76

40 F.3d 76

Zhu Yu CHUN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-40330

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 26, 1994.

Catherine Lampard, Tulane Law Clinic, New Orleans, LA, for petitioner.

Janet Reno, U.S. Atty. Gen., David V. Bernal, David J. Kline, Philmenia McNeill Jones, Robert L. Bombough, Deputy Director, Teresa A. Wallbaum, I.N.S., Washington, DC, for respondent.

John B.Z. Caplinger, Deputy Director, I.N.S., New Orleans, LA, for other interested parties.

Petition for Review of an Order of the Board of Immigration Appeals.

Before KING, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:

Petitioner, Zhu Yu Chun ("Chun"), a native citizen of the People's Republic of China, entered the United States without inspection. Respondents, the Immigration and Naturalization Service ("INS"), charged her with deportability under 8 U.S.C. Sec. 1251(a)(1)(B) and issued her a notice to show why she should not be deported. In the proceedings before the Immigration Judge ("IJ"), Chun conceded deportability but requested asylum and withholding of deportation. The IJ found Chun not credible, and in the alternative, even if credible, not eligible for asylum or withholding of deportation. On appeal, the Board of Immigration Appeals ("BIA") affirmed both the IJ's credibility finding and alternative holding. Chun challenges the action of the BIA. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Chun is a 37 year-old native and citizen of China who entered the United States without inspection on or around April 16, 1993. She claims to have been fleeing the Chinese government who was persecuting her for violating China's birth control policy of one child per family. Chun has five children.

Chun testified that the government began persecuting her in 1977 when she was six months pregnant with her third child. The government tried to force her to have an abortion, and took her husband to a brigade to pressure him into aborting the child. Her husband committed suicide while in the brigade. Chun remarried in 1980 and had another child, her fourth, in 1981. A few days after the birth of this child, Chun testified that some men from the government took her to a hospital and tried, unsuccessfully, ¹ to sterilize her against her will.

Chun and her family moved to another village to evade the government. Then in 1984, she gave birth to her fifth child. She did not register this child with the authorities. Chun apparently had no further problem with the government until November of 1992, when her husband returned to their home village to visit his sick brother. The authorities detained Chun's husband and asked him if he was the father of Chun's fifth child. When he refused to answer, he was severely beaten, after which he admitted he was the father. Upon hearing of these events, Chun went into hiding. Chun testified that while she was in hiding, the government looted and ransacked her house and closed down her two clothing stores.

Chun was smuggled into the United States in April of 1993. She testified that if she returned to China, she believed she would either be put in jail or killed for violating the birth control policy, for illegally leaving the country, or for owing the government money. On these grounds, she requested asylum and withholding of deportation. After a hearing where the IJ observed Chun's demeanor and listened to her testimony, he determined that Chun was not credible. The IJ also found that even if Chun was credible, she had not established her eligibility for asylum or withholding of deportation. The BIA affirmed the IJ's decision on both grounds.

II. STANDARD OF REVIEW

We are authorized to review an order of only the BIA, not the IJ. Adebisi v. INS, 952 F.2d 910, 912 (5th Cir.1992). We may review actions of the IJ only when they have some impact on the BIA's decision. Id. In this case, the BIA specifically adopted the credibility findings of the IJ; therefore, we may review the findings of the IJ.

Furthermore, we must use the substantial evidence test to review the BIA's factual conclusion that an alien is not eligible for asylum. Id. (citing Campos-Guardado v. INS, 809 F.2d 285, 290 (5th Cir.), cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987)). This same substantial evidence standard applies to the BIA's factual conclusion that an alien is not eligible for withholding of deportation. Id. (citing Zamora-Morel v. INS, 905 F.2d 833, 838 (5th Cir.1990)).

Under substantial evidence review, we may not reverse the BIA's factual determinations unless we find not only that the evidence supports a contrary conclusion, but that the evidence compels it. INS v. Elias-Zacarias, 502 U.S. 478, ---- n. 1, 112 S.Ct. 812, 815 n. 1, 117 L.Ed.2d 38 (1992); Silwany-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir.1992). In other words, the alien must show that the evidence was so compelling that no reasonable factfinder could conclude against it. Elias-Zacarias, 502 U.S. at ----, 112 S.Ct. at 817; Silwany-Rodriguez, 975 F.2d at 1160.

Moreover, it is the factfinder's duty to make determinations based on the credibility of the witnesses. Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir.1977). We cannot substitute our judgment for that of the BIA or IJ with respect to the credibility of the witnesses or ultimate factual findings based on credibility determinations. Id. As we have previously made emphatically clear, "[w]e will not review decisions turning purely on the immigration judge's assessment of the alien petitioner's credibility." Mantell v. INS, 798 F.2d 124, 127 (5th Cir.1986).

III. DISCUSSION

After observing Chun's demeanor while testifying and comparing her live testimony with her written application for asylum, the truth of which she swore to, the IJ found that Chun was not credible. In explaining his finding, the IJ emphasized five inconsistencies in Chun's story, which are summarized as follows.

First, Chun said in her asylum application that in 1977 while she was pregnant with her third child, the government detained her first husband to pressure him into aborting the child. However, on direct examination, Chun stated that her husband was arrested because she hid...