Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
7-26-2004
Chen v. Atty Gen USA Precedential or Non-Precedential: Precedential
Docket No. 03-2155
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Recommended Citation "Chen v. Atty Gen USA" (2004). 2004 Decisions. Paper 430. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/430
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Bruno J. Bembi (argued) 62 Nichols Court UNITED STATES COURT OF Suite 202 APPEALS Hempstead, NY 11550 FOR THE THIRD CIRCUIT Attorney for Petitioner
No. 03-2155 Peter D. Keisler Assistant Attorney General Civil Division HE CHUN CHEN, Earle B. Wilson a/k/a Douglas E. Ginsburg HE ZHONG CHEN John D. Williams Terri J. Scadron v. Joshua E. Braunstein (argued) Efthimia S. Pilitsis JOHN ASHCROFT, Attorney General United States Department of Justice of the United States, Office of Immigration Litigation P.O. Box 878 Respondent Ben Franklin Station Washington, DC 20044 He Chun Chen, Attorneys for Respondent Petitioner
OPINION OF THE COURT On Petition for Review of an Order of the Board of Immigration Appeals (INS File Nos. A77-297-487) GREENBERG, Circuit Judge.
Argued June 28, 2004 I. INTRODUCTION BEFORE: AMBRO, BECKER, and This matter comes on before this GREENBERG, Circuit Judges court on He Chun Chen’s petition for review of a decision of the Board of (Filed: July 26, 2004) Immigration Appeals (“BIA”) dismissing his appeal from an order of an Immigration Judge (“IJ”) denying his application for asylum and withholding of removal or in the alternative for protection under the Convention Against Torture. Inasmuch as we find that substantial evidence in the in detail. Chen testified at an October 4, record supports the findings of both the IJ 2000 hearing before the IJ that he is from and the BIA, we will deny the petition. Fuzhou City in the Fujian Province of China, where he graduated from high school in 1981. From 1981 through 1996 Chen worked in construction and in 1996 II. FACTUAL AND PROCEDURAL he opened a bookstore. Chen married Ha HISTORY Yun Ni on October 27, 1994, who, on August 20, 1995, gave birth to a daughter. Chen, a native and citizen of the One month later the government family People’s Republic of China, arrived in the planning authorities took his wife to Guan United States at Los Angeles International Tou Hospital for insertion of an intra- Airport on December 23, 1999, and uterine device (“IUD”) to prevent applied for admission without valid entry pregnancy. According to Chen, the family documents. On February 22, 2000, the planning regulations required the insertion Immigration and Naturalization Service of an IUD after the birth of a child but, (“INS”), whose functions since have been after four years, permit a family to request transferred to the Department of Homeland permission to have another child. Security, initiated removal proceedings against Chen by serving him with a notice Chen testified that the IUD must to appear. At a hearing before an IJ in have failed because in early 1996 his wife which he was represented by counsel, discovered that she was pregnant. Chen conceded removability but indicated According to Chen, the family planning that he intended to seek political asylum, authorities required his wife once every withholding of deportation, and protection three months to go for “inspections” to under the Convention Against Torture. check on her IUD and ensure that she was Chen predicates his claims on allegations not pregnant. When Chen’s wife did not that Chinese authorities forced his wife to go for the scheduled inspection of her IUD terminate two pregnancies and caused her by the authorities, they came on April 26, to be sterilized forcibly in accordance with 1996, to the family home to find her. At the coercive family planning practices of that time Chen was at his bookstore. the Chinese government. He also alleges When he returned home that night his wife that the Chinese authorities ransacked and told him that the authorities had taken her closed his bookstore because he sold Falun to Lian Jiang Hospital and forced her to Gong literature. undergo an abortion against her will. Chen said that while his wife did not tell In recognition of the circumstance him about the procedure in detail, she did that the IJ and the BIA premised their mention that she was given a shot. On the denial of his application on Chen’s lack of same day as the abortion the authorities credibility, we will recount his testimony also forced her to have another IUD
2 inserted. Nevertheless, even though he was warned not to sell the Falun Gong books, Chen Chen testified that in 1998 he continued to do so because it was petitioned for permission to have a second profitable. Chen testified that he received child. The authorities denied this request, a second warning that he should cease all citing the earlier violation of the family sales of Falun Gong materials. Chen, planning policy. Unbeknownst to the however, informed an immigration officer Chinese government, he and his wife then in California in February 2000 that the decided to elicit the assistance of a private Chinese government gave him “a” warning physician to remove the IUD, and in April about selling Falun Gong books. AR 1 at 1998 Chen’s wife had the IUD removed. 199-200. One month later in May 1998 Chen’s wife discovered that she was pregnant again. Chen testified that he was not a When the authorities notified her that it member of Falun Gong, but only sold its was time for an inspection of the IUD in books, though at the airport interview July, Chen’s wife went into hiding at her conducted on the day of his arrival in the parents’ house in Guan Tou. On August United States, Chen told an immigration 31, 1998, the authorities found Chen’s official that he was a practitioner of Falun wife at her parents’ home and took her to Gong. When asked by the IJ why he made Lian Jiang Hospital for another forced this statement even though it was not true, abortion. As with the first abortion, Chen responded that “[t]he smuggler Chen’s wife was given a shot. The taught me to say that, they said that I have authorities also inserted another IUD on to say that. They said, they told me not to the same day. The following year Chen say anything else, just say I am a Falun again submitted a request to the Chinese Gong follower.” AR at 202. Chen, government to have another child but this however, never mentioned anything at his time the authorities granted the request. In airport interview about his family’s October 1999 Chen’s wife discovered that difficulties with the family planning she was pregnant. policies in China.
Chen also testified before the IJ that Chen testified that when he refused he sold Falun Gong books by Li Hong Zhi to heed the cadres’ warnings, the Chinese in his bookstore from April 1996 through authorities in May 1999 confiscated his April 1999, when the Chinese government books, destroyed the bookstore, and closed destroyed and closed the store. it down. Chen then went into hiding. He Government cadres came to his store and testified that he stayed with an uncle in notified him that he no longer could sell Falun Gong books. According to Chen, the government officials explained that 1 We cite the administrative record as Falun Gong was an evil religion. AR.
3 Changle City until November 1999, but she had to return to their home because though in an earlier interview with United it was the anniversary of the death of States immigration authorities Chen stated Chen’s mother. Chen testified that the that he stayed with a relative until authorities found his wife at their home September 1999. When confronted with and brought her to Mawei Hospital for the this inconsistency during the immigration sterilization. A letter submitted by Chen hearing Chen responded “[m]aybe I made from his wife states, however, that the a mistake?” AR at 200. family planning officials found her at her parents’ home and took her for the Two months later on December 21, sterilization from there. 1999, Chen left China with the assistance of “snakeheads.” Chen traveled to Hong Chen testified that he was applying Kong, then to Jakarta, Indonesia, on to for political asylum because he violated Malaysia and finally to Los Angeles. China’s family planning policies and sold Chen testified that he left China because Falun Gong books in his bookstore. He he knew that if his wife gave birth to a indicated that he feared returning to China son, she definitely would be sterilized. He because he might be sterilized. When the explained that his wife did not come to the IJ asked why the authorities would sterilize United States because she was pregnant him inasmuch as his wife already had been and not feeling well. sterilized, he stated that he would not be sterilized and had “made a mistake.” AR On July 13, 2000, Chen’s wife gave at 185. birth to a son. Two months later, on September 6, 2000, the Chinese authorities At the conclusion of the hearing, sterilized his wife. Inasmuch as Chen was the IJ issued an oral decision denying in the United States when his wife was Chen relief. In particular, the IJ found that sterilized, he obtained the information that Chen failed to establish a well-founded he provided at the hearing about the fear of persecution, a necessary showing sterilization from her. In this regard the IJ for him to be eligible for asylum. questioned Chen why his wife would be Therefore, the IJ found that it was not sterilized inasmuch as he was already in necessary to consider whether Chen was the United States and therefore there eligible for relief as a matter of discretion. seemed little risk of pregnancy. Chen The IJ also denied Chen’s application for responded that “[t]hey don’t care, as long withholding of removal and found that as you gave birth to two, two children, and Chen had not shown that more likely than then they don’t care, either the male or the not he would be tortured if he returned to female must be sterilized.” AR at 173. China, and, accordingly, he did not merit protection under the Convention Against According to Chen, his wife stayed Torture. at her mother’s home after he left China,
4 In reaching his conclusions, the IJ testimony as to the timing of his departure found that Chen’s testimony lacked from China. Chen testified that he left credibility in several respects. First, the IJ China after he and his wife had received explained that he found Chen’s testimony permission to have a second child and that on two occasions his wife had an IUD while his wife was pregnant. The IJ inserted on the same day she had an stated: abortion as “not only incredible but also It makes absolutely no sense implausible.” The IJ reasoned that “due to to the Court that if the the physical trauma of an abortion, the respondent and his wife Court finds that it is unlikely and most were granted permission to likely physically impossible to insert an have another child, that the IUD in an individual who has earlier that govern me nt w ould be day suffered an abortion.” AR at 97. considering sterilizing either the respondent or his wife. Moreover, the IJ questioned Chen’s Thus, it makes absolutely no t e s ti m o n y r e g a r d i n g h i s w i f e ’s sense to the Court and it is sterilization. He stated that “[t]his line of implausible testimony that testimony again is not credible to the Court the respondent would wish and the Court does not understand why the to leave China due to the authorities would wish to sterilize the family planning policy after respondent’s wife since the respondent, he had received permission himself, was in the United States.” AR at to have this second child. 98. In addition, the IJ identified an inconsistency in Chen’s recounting of his wife’s sterilization. Chen testified that the AR at 100-01. The IJ also pointed to the authorities found his wife at their home, discrepancy in Chen’s testimony regarding while Chen’s wife’s letter indicated that the length of time he stayed at his uncle’s the authorities located her at her parents’ home in Changle City while he was in home. The IJ also pointed out that Chen hiding prior to leaving for the United contradicted himself during his testimony States. At the hearing Chen testified that regarding his fear of sterilization. Thus, he lived with his uncle until November while Chen first testified that he feared 1999 while he previously had informed an that if he returned to China he would be immigration official that he stayed with a sterilized, when the IJ asked why the relative only until September 1999. authorities would sterilize him inasmuch as they already had his wife sterilized, he The IJ also indicated that Chen’s responded that he would not be sterilized testimony relating to his bookstore lacked and had made a mistake. credibility. Chen testified that government officials warned him twice that he should The IJ also questioned Chen’s discontinue selling Falun Gong books.
5 However, the IJ pointed out that at an issued its decision dismissing Chen’s earlier interview with an immigration appeal. In support of its decision, the BIA official Chen stated that he only had been cited the numerous inconsistencies pointed given “a” warning. out by the IJ. The BIA noted the discrepancy between Chen’s wife’s Furthermore, the IJ emphasized that account of where she had been when she while Chen testified that he was not a was taken for sterilization and Chen’s member of Falun Gong, at his airport testimony before the IJ. The BIA further interview he informed the immigration found that Chen failed to sustain his officer that he was in fact a member. Chen burden of proof in showing that his wife explained during his testimony that the was subjected to two forced abortions. smugglers had told him to say this. The IJ While it recognized that Chen submitted also noted that Chen never mentioned two abortion certificates, it questioned anything during his airport interview about their validity, citing the Department of any difficulties his family had with State country report which states that China’s family planning policies. The IJ “such purported certificates, if they exist at explained that Chen was alone with the all, may be documents issued to women immigration official at the airport, and, who voluntarily submit to an abortion and therefore, “[n]otwithstanding what the are entitled to the resulting benefits.” AR snakeheads had told him to say, I see no at 2. The BIA also explained that Chen reason why the respondent would not tell had failed to prove a well-founded fear of the inspector the truth, and why his persecution on account of China’s coercive testimony would not coincide with the family practices because he recognized testimony given to the Court today, that he would not face sterilization if he specifically concerning the problems that returned to China. his wife has experienced.” AR at 103. The BIA found that the record Overall, after considering the entire supported an ad verse credib ility record before him, the IJ concluded that determination as to Chen’s claim related to Chen had “not established, due to his lack his sale of Falun Gong books. It pointed of credibility a well-founded fear of to the discrepancy in Chen’s account as to persecution if he were returned to China. how many times he was warned to stop Accordingly, his application for asylum selling the books prior to the Chinese will be denied.” AR at 104. The IJ also officials closing down his shop. AR at 2. denied Chen’s application for withholding The BIA further cited the false story that of removal and for protection under the Chen gave at the airport that he was a Convention Against Torture. Thus, the IJ follower of Falun Gong. It noted that entered orders denying Chen any relief. Chen did not support this aspect of his Chen appealed from this disposition claim with “objective evidence that a to the BIA. On April 3, 2003, the BIA bookstore owner may have acquired over
6 the years to corroborate his claim that he credibility determination of the BIA or IJ owned a bookstore and that the bookstore unless “any reasonable adjudicator would was closed.” AR at 3. The BIA concluded be compelled to conclude to the contrary.” that “[f]or those reasons and others cited in 8 U.S.C. § 1252(b)(4)(B). Accordingly, the Immigration Judge’s decision, the we are required to sustain an adverse Immigration Judge correctly denied the credibility determination “unless . . . no respondent’s application for asylum and reasonable person” would have found the withholding of removal.” AR at 3. The applicant incredible. See Concrete Pipe & BIA also upheld the IJ’s determination Prods. of Cal., Inc. v. Constr. Laborers with respect to Chen’s application for Pension Trust for S. Cal., 508 U.S. 602, protection under the Convention Against 623, 113 S.Ct. 2264, 2280 (1993). For Torture. Consequently, it dismissed his Chen to prevail, the evidence of credibility appeal. must be so strong in his favor that in a civil trial he would be entitled to judgment Chen timely filed this petition for on the credibility issue as a matter of law. review, limiting his arguments to his See INS v. Elias-Zacarias, 502 U.S. 478, asylum and withholding of removal 481 n.1, 112 S.Ct. 812, 815 n.1 (1992) claims, thus abandoning his claim for (holding that the BIA’s decision can be protection under the Convention Against reversed only where the petitioner’s Torture. evidence “compels” a reasonable factfinder to find in his or her favor). How ever, adverse cred ibility III. JURISDICTION AND SCOPE OF determinations “based on speculation or AND STANDARD OF REVIEW conjecture, rather than on evidence in the The BIA had jurisdiction over this record, are reversible.” Dia v. Ashcroft, matter pursuant to 8 C.F.R. § 3.1(b)(3) 353 F.3d 228, 249 (2003) (en banc) (2002), now 8 C.F.R. § 1003.1(b)(3), (quoting Gao v. Ashcroft, 299 F.3d 266, which grants it appellate jurisdiction over 272 (3d Cir. 2002)). decisions of immigration judges in In addition to setting forth our removal cases. We have exclusive standard of review we must determine its jurisdiction under section 242(a)(1) of the scope, i.e. does our appellate jurisdiction Immigration and Nationality Act (“INA”), encompass review of the IJ’s decision as 8 U.S.C. § 1252(a)(1), to review final well as the BIA’s order? We recently have orders of removal. recognized that when the BIA both adopts We review adverse credibility the findings of the IJ and discusses some determinations for substantial evidence. of the bases for the IJ’s decision, we have Balasubramanrim v. INS, 143 F.3d 157, authority to review the decisions of both 161 (3d Cir. 1998). Under this deferential the IJ and the BIA. Xie v. Ashcroft, 359 standard of review, we must uphold the F.3d 239, 242 (3d Cir. 2004); see also
7 Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 she is “unable or unwilling to return to . . (3d Cir. 2001) (“When the BIA defers to . that country [of nationality] because of an IJ, a reviewing court must, as a matter persecution or a well-founded fear of of logic, review the IJ’s decision to assess persecution on account of race, religion, whether the BIA’s decision to defer was nationality, membership in a particular appropriate.”). Wh ere t he B IA social group, or political opinion.” 8 substantially relies on an IJ’s adverse U.S.C. § 1101(a)(42)(A). The definition credibility determination, we must look to of “refugee” includes “a person who has both decisions in order to satisfy our been forced to abort a pregnancy or to obligation under 8 U.S.C. § 1252(b) to undergo involuntary sterilization” under review the administrative decision the ambit of persecution “on account of meaningfully. Xie, 359 F.3d at 242; see political opinion.” Id. § 1101(a)(42)(B). also Dia, 353 F.3d at 243. The BIA has extended this protection to include the spouse of an individual who The BIA’s decision in this case has been sterilized or otherwise subject to makes clear that it was relying upon the a coercive population control program as adverse credibility finding made by the IJ. defined by 8 U.S.C. § 1101(a)(42)(B) and While the BIA identified some of the we decide this appeal assuming the inconsistencies the IJ cited, it did so by validity of that conclusion. In re C-Y-Z, way of example and did not conduct a de 21 I. & N. Dec. 915, 918 (BIA 1997). In novo review of the record to arrive that case the BIA found that a husband indep ende ntly at its conclusions. could “stand in [the] shoes” of a wife who Inasmuch as the BIA deferred to the IJ’s had been sterilized forcibly and therefore credibility determinations and adopted the was eligible for asylum on that basis. Id.2 reasons the IJ set forth, we have authority to review both determinations.
2 This case demonstrates what should IV. DISCUSSION be obvious. C-Y-Z permits a husband to capitalize on the persecution of his wife The framework in which we review to obtain asylum even though he has left the administrative determinations is well his wife behind and she might never join established. Section 208(a) of the INA, 8 him and he might intend that she not do U.S.C. § 1158(b), gives the Attorney so. Such an outcome in which the General discretion to grant asylum to any application of our laws would contribute alien who demonstrates that he or she is a to the destruction of a family union “refugee” within the meaning of section seems anomalous, at least in situations in 101(a)(42)(A) of the INA, 8 U.S.C. § which the husband does not make a 1101(a)(42)(A). Elias-Zacarias, 502 U.S. compelling showing that if he is granted at 481, 112 S.Ct. at 815. To qualify as a asylum his wife will be able to join him “refugee,” one must demonstrate that he or in this country. Indeed, the application
8 U n like asylum , w hich is As we often have recognized, the discretionary, the Attorney General must substantial evidence standard of review is grant withholding of removal if the alien extremely deferential, setting a “high demonstrates a “clear probability” that, hurdle by permitting the reversal of factual upon return to his or her home country, his findings only when the record evidence or her “life or freedom would be would ‘compel’ a reasonable factfinder to threatened” on account of race, religion, make a c on tra ry de te r mina ti o n .” nationality, membership in a particular Abdulrahman v. Ashcroft, 330 F.3d 587, social group, or political opinion. See INS 597 (3d Cir. 2003) (quoting Elias-Zacarias, v. Stevic, 467 U.S. 407, 104 S.Ct. 2489 502 U.S. at 481 n.1, 112 S.Ct. at 815 n.1). (1984); Zubeda v. Ashcroft, 333 F.3d 463, We therefore look at the adverse 469-70 (3d Cir. 2003). An alien who fails credibility determinations made by the IJ to establish that he or she has a well- and BIA “to ensure that [they were] founded fear of persecution, so as to be ‘appropriately based on inconsistent eligible for a grant of asylum, necessarily statements, contradictory evidences, and will fail to establish the right to inherently improbable testimony . . . in withholding of removal. Zubeda, id. at view of the background evidence on 469 (citing Janusiak v. INS, 947 F.2d 46, country conditions.’” Dia, 353 F.3d at 249 47 (3d Cir. 1991)). (citation omitted). While, as we will explain, we are troubled by some of the The applicant for asylum has the speculative statements the IJ and the BIA burden of proof to establish his or her made, after reviewing the record as a eligibility for asylum. 8 C.F.R. § whole we are convinced that the record 208.13(a) (2002); Abdille v. Ashcroft, 242 evidence does not compel us to reach a F.3d 477, 482 (3d Cir. 2001). The alien conclusion contrary to that of the IJ and must show by credible, direct, and specific the BIA. evidence an objectively reasonable basis for the claimed fear of persecution. We recognize that we have Balasubramanrim, 143 F.3d at 165. counseled against placing too much weight on an airport interview, especially when the IJ and BIA lack important information of our laws may be encouraging as to the manner in which the interview husbands to desert their wives. While we was conducted. Xie, 359 F.3d at 246; recognize that historically in persecution Mulanga v. Ashcroft, 349 F.3d 123, 137 cases married men sometimes have come (3d Cir. 2003) (“immaterial discrepancies to this country first and then have been between airport interviews and subsequent followed by their families, C-Y-Z, 21 I. testimony should not be used to make & N. Dec. 915, at 920, 927 (Rosenberg, adverse credibility determinations”); Member, concurring), still it would be Ezeagwuna v. Ashcroft, 325 F.3d 396, 408 useful to study the actual impact of C-Y- (3d Cir. 2003); Senathirajah v. INS, 157 Z on family structures.
9 F.3d 210, 217-18 (3d Cir. 1998); practices in China. The only explanation Balasubramanrim, 143 F.3d at 162-64. Chen offered before the IJ was that the We also have made clear that ambiguous smugglers told him to inform the United answers at airport interviews should not be States immigration officials that he was a relied upon to question the credibility of Falun Gong follower. Both the IJ and the the alien later, though we have limited BIA reasonably relied on these concern with that admonition here as Chen contradictory statements in finding that does not challenge the manner in which Chen’s testimony lacked credibility. the immigration official conducted the The IJ also cited to other airport interview and he does not maintain discrepancies in Chen’s testimony leading that the respondent has mischaracterized to his adverse credibility determination for his statements made at that interview. which we find support in the record. The Rather, he merely points out that the notes IJ pointed to the discrepancy in Chen’s from the airport interview are not in the testimony regarding the length of time he record and that it cannot be said when they stayed at his uncle’s home in Changle City were written or “whether [his] full while he was in hiding prior to leaving for responses were translated at the airport, or the United States. At the hearing Chen even whether he had an opportunity to testified that he lived with his uncle until make clear, as he did in immigration court, November 1999 though he informed an that the cadres thought he was a Falun immigration official at an earlier interview Gong follower.” Appellant’s br. at 59. that he stayed with a relative only until On the other hand, where the September 1999. In addition, Chen first discrepancies between an airport interview testified before the IJ that he feared that if and the alien’s testimony “go to the heart he returned to China he would be of the claim,” they certainly support an sterilized. When the IJ asked why the adverse credibility determination. Xie, authorities would sterilize him in light of 359 F.3d at 246. Here the record is clear the circumstance that his wife already had that Chen provided information at his been sterilized, Chen responded that he airport interview markedly different from would not be sterilized and had made a his testimony before the IJ. At his airport mistake. The IJ also pointed to a interview he explained that he left China discrepancy between Chen’s testimony because he was unable to practice Falun regarding his wife’s sterilization and a Gong. In contrast, Chen testified before letter provided by Chen from his wife. the IJ that he was never a Falun Gong Chen testified before the IJ that his wife follower, but he did sell Falun Gong books was apprehended by the family planning at his bookstore. Furthermore, Chen never authorities at their home, while Chen’s mentioned anything during his airport wife’s letter stated that the authorities interview about any difficulties he or his found her at her parent’s home. wife had with the coercive family planning We recognize, however, that while
10 a review of the record evidence does not sterilized even though he was in the United compel that we reach a conclusion States does not strike us as implausible contrary to that drawn by the IJ and the given the regulations and therefore it does BIA, just as Judge Becker stated in his not support an adverse credibility concurrence in Abdulrahman, 330 F.3d at determination. 600, we note our “extreme discomfiture” We also are troubled by several with some of the statements the IJ made. aspects of the BIA decision dismissing The IJ dismissed Chen’s testimony that his Chen’s appeal. The BIA noted that Chen wife had an IUD inserted on the same day failed to support his claim that he was as an abortion on two separate occasions persecuted for selling Falun Gong books as “not only incredible but also with “objective evidence that a bookstore implausible,” reasoning that “due to the owner may have acquired over the years to physical trauma of an abortion, the Court corroborate his claim that he owned a finds that it is unlikely and most likely bookstore and that the bookstore was physically impossible to insert an IUD in closed.” AR at 3. We have explained in an individual who has earlier that day the past that “the BIA may . . . sometimes suffered an abortion.” AR at 97. This require corroboration of otherwise-credible statement is troublesome for two reasons. testimony.” Abdulai, 239 F.3d at 545. In First, the IJ is not a physician and while he Abdulai, id. at 554, we deferred to the finds the evidence regarding the IUD three-part inquiry developed by the BIA in unlikely, he does not point to evidence in In re S-M-J, 21 I. & N. Dec. 722 (1997), the record in support of his speculation. for analyzing whether an alien should have Second, the family planning regulations offered corroborating evidence. The three- from Chen’s province in the administrative part test requires the BIA to: (1) identify record clearly state that IUDs are inserted the facts for which it was reasonable to on that same day that “manual abortion[s]” expect corroboration; (2) conduct an take place. AR at 467. inquiry as to whether the applicant has The IJ also questioned Chen’s provided corroborating evidence; and (3) credibility because he testified that his if he or she has not provided such wife was sterilized by the family planning corroborating evidence, address whether authorities even though there was no risk the applicant adequately has explained his of pregnancy inasmuch as he was out of or her failure to do so. Mulanga, 349 F.3d the country. The family planning at 133-34; Abdulai, 239 F.3d at 554. In regulations, however, specifically state that this case the BIA failed to follow the test “[f]or those who have two children S-M-J set forth and explain why it was already, hospitals should cooperate with reasonable to expect such corroboration r e l a te d d e pa rt m ents and enfo rce and whether Chen adequately explained sterilization operations on the spot.” AR his failure to provide it. at 467. Chen’s testimony that his wife was The BIA also explained that Chen
11 had failed to prove a well-founded fear of validity of the abortion certificates based persecution on account of China’s coercive on nothing more than the country report. family practices because he acknowledged While we recognized in Liu v. that he would not face sterilization if he Ashcroft, 372 F.3d 529, 534 (3d Cir. returned to China. However, as we 2004), that remand is appropriate where explained above, if the IJ and BIA found “we have made a legal determination (e.g., Chen credible, he would be eligible for regarding admissibility of evidence) that asylum under the BIA’s decision in In re fundamentally upsets the balancing of C-Y-Z, 21 I. & N. Dec. at 918, because he facts and evidence upon which an agency’s stands in the shoes of his wife who was decision is based,” that decision is subject to forced abortions and coerced inapplicable here. In Liu we made clear sterilization. Therefore, even assuming t h a t the impr o p e r r e je c t io n o f that Chen would not face sterilization unauthenticated abortion certificates by the himself if he returned to China, this IJ infected the adverse credibility circumstance would not affect his determination. But the differences eligibility for asylum. between Liu and this case are apparent. We also note that the BIA rejected The discrepancies in the testimony of the the validity of the two abortion certificates Lius were much less dramatic than the submitted by Chen bec ause the differences in Chen’s airport interview and Department of State’s country report states his testimony before the IJ. Furthermore, that “such purported certificates, if they the IJ’s rejection in Liu of the petitioners’ exist at all, may be documents issued to credibility was intertwined inextricably women who voluntarily submit to an with his unwillingness to consider the abortion and are entitled to the resulting abortion certificates because they were not benefits.” AR at 2, 361-62, 364-65. We authenticated. In contrast, here the IJ’s previously have questioned such wholesale adverse credibility determination related to reliance on the Department of State’s the discrepancy between the airport country reports, quoting with approval interview and Chen’s testimony as to his Galina v. INS, 213 F.3d 955, 959 (7th Cir. relationship with Falun Gong and thus was 2000), that “[t]he country report is separate and apart from the IJ’s improper evidence and sometimes the only evidence speculation as to the insertion of the IUD available, but the Board should treat it on the same day as the abortions, among with a healthy skepticism, rather than, as is other stated grounds. We therefore its tendency, as Holy Writ.” Lin v. INS, conclude that Liu does not compel us to 238 F.3d 239, 248 (3d Cir. 2001); see also remand this case to the BIA or even justify Ezeagwuna, 325 F.3d at 407. The BIA us in doing so. “ c a n n o t h i d e b e h in d t h e S t a te Department’s letterhead.” Lin, 238 F.3d at 246. Therefore, it erroneously rejected the V. CONCLUSION
12 While we have noted our difficulties with the decisions of both the IJ and the BIA, as we explained above, “the overriding consideration here must be the extraordinarily deferential standard m a n d a t e d b y E l i a s -Z a c a r i a s.” Abdulrahman, 330 F.3d at 598. After reviewing the administrative record we find that the record does not compel a contrary credibility finding here. The inescapable conclusion that we must draw is that there are unimpeachable bases on which to arrive at the conclusion that the IJ and BIA did that Chen was not credible and thus he was not entitled to asylum or the withholding of removal. For all the reasons we have stated, we will deny the petition for review.