Chun v. I.N.S., No. 94-40330

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore KING, JOLLY and DeMOSS; PER CURIAM
Citation40 F.3d 76
PartiesZhu Yu CHUN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar.
Docket NumberNo. 94-40330
Decision Date26 October 1994

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.

Page 77

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

Page 78

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.

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224 practice notes
  • Bryant v. U.S. Dep't of Interior, Case No. 2:18-cv-2593-MBS-MGB
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • October 9, 2018
    ...Cir. 2000), cert. denied, 532 U.S. 1053 (2001). Such pleading deficiency cannot be remedied through more specific factual pleading. Rice, 40 F.3d at 76. Thus, the Complaint against the federal agencies and any individual federal officials in official capacity is subject to dismissal based o......
  • Zhang v. Gonzales, No. 04-60375.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 1, 2005
    ...that the evidence supports a contrary conclusion, but [also] that the evidence compels it." Zhao, 404 F.3d at 306 (quoting Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994)). "[I]t is the factfinder's duty to make determinations based on the credibility of the witnesses." Id. (citing Vasquez-Mondr......
  • Bryant v. U.S. Dep't of Educ., Case No. 2:18-cv-2217-MBS-MGB
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • October 5, 2018
    ...F.3d 468, 469 (4th Cir. 2000), cert. denied, 532 U.S. 1053 (2001). This cannot be remedied through more specific factual pleading. Rice, 40 F.3d at 76. Thus, the Amended Complaint against the federal agencies is subject to dismissal based on sovereign immunity. E. With or Without Prejudice ......
  • Qorane v. Barr, No. 17-60394
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 26, 2019
    ...an IJ’s reasoning by reference, the IJ’s reasoning is relevant only because it explains the BIA’s decision. See, e.g. , Chun v. INS , 40 F.3d 76, 78 (5th Cir. 1994) (per curiam). Here, the BIA issued its own decision, so that is what we review.2 Qorane insists the Supreme Court established ......
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224 cases
  • Bryant v. U.S. Dep't of Interior, Case No. 2:18-cv-2593-MBS-MGB
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • October 9, 2018
    ...Cir. 2000), cert. denied, 532 U.S. 1053 (2001). Such pleading deficiency cannot be remedied through more specific factual pleading. Rice, 40 F.3d at 76. Thus, the Complaint against the federal agencies and any individual federal officials in official capacity is subject to dismissal based o......
  • Zhang v. Gonzales, No. 04-60375.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 1, 2005
    ...that the evidence supports a contrary conclusion, but [also] that the evidence compels it." Zhao, 404 F.3d at 306 (quoting Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994)). "[I]t is the factfinder's duty to make determinations based on the credibility of the witnesses." Id. (citing Vasquez-Mondr......
  • Bryant v. U.S. Dep't of Educ., Case No. 2:18-cv-2217-MBS-MGB
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • October 5, 2018
    ...F.3d 468, 469 (4th Cir. 2000), cert. denied, 532 U.S. 1053 (2001). This cannot be remedied through more specific factual pleading. Rice, 40 F.3d at 76. Thus, the Amended Complaint against the federal agencies is subject to dismissal based on sovereign immunity. E. With or Without Prejudice ......
  • Qorane v. Barr, No. 17-60394
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 26, 2019
    ...an IJ’s reasoning by reference, the IJ’s reasoning is relevant only because it explains the BIA’s decision. See, e.g. , Chun v. INS , 40 F.3d 76, 78 (5th Cir. 1994) (per curiam). Here, the BIA issued its own decision, so that is what we review.2 Qorane insists the Supreme Court established ......
  • Request a trial to view additional results

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