Chen v. United States Department of Justice

121 F. App'x 428
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 9, 2005
DocketNo. 02-4624
StatusPublished

This text of 121 F. App'x 428 (Chen v. United States Department of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chen v. United States Department of Justice, 121 F. App'x 428 (2d Cir. 2005).

Opinion

SUMMARY ORDER

Xiang Jin Chen, a Chinese national, petitions for review of the September 27, 2002 denial by the Board of Immigration Appeals (“BIA”) of his application for asylum and withholding of removal. Because the BIA summarily affirmed the March 7, 2000 oral decision of the Immigration Judge (“IJ”), we directly review the IJ’s decision. See Yu Sheng Zhang v. United States Dep’t of Justice, 362 F.3d 155, 156-59 (2d Cir.2004); Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We assume [429]*429the parties’ familiarity with the facts and the administrative record, which we reference only as necessary to explain our decision.

1. Claim for Asylum and Withholding of Removal

To qualify for asylum in the United States, “a refugee must demonstrate past persecution or a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’” Zhou Yun Zhang v. United States INS, 386 F.3d 66, 70 (2d Cir.2004) (quoting 8 U.S.C. § 1101(a)(42)). If an applicant fails to establish eligibility for asylum, that necessarily precludes him from satisfying the heavier burden for withholding of removal. See id. at 71; Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999).

An applicant may sustain his burden simply through his own testimony provided his account is “consistent, detailed, and credible.” Diallo v. INS, 232 F.3d 279, 285 (2d Cir.2000); accord Zhou Yun Zhang v. United States INS, 386 F.3d at 71. Nevertheless, “evidence corroborating” a claim, “or an explanation for its absence, may be required where it would reasonably be expected.” Id.

Xiang Jin Chen relied on both his own testimony and corroborating documents to support his claims of (1) past persecution based on both (a) his wife’s forced abortion and compelled insertion of an intrauterine device, see Zhou Yun Zhang v. United States INS, 386 F.3d at 71-72 (discussing asylum claims based on spousal persecution); In re C-Y-Z-, 21 I. & N. Dec. 915, 918 (B.I.A.1997), and (b) his own attempted forced sterilization; and (2) feared future persecution based on his forcible resistance to sterilization. Respondent does not dispute that such claims, if credible, can support relief from removal. In this case, however, the IJ did not credit petitioner’s testimony. He concluded that it “lacks plausibility” in two respects. First, in testifying at his 1999 asylum hearing, Xiang Jin Chen did not know if his wife had been re-fitted with an intrauterine device after a 1987 removal, a fact that the IJ deemed relevant to the couple’s professed “desire to be free from governmental intrusion when it comes to sexual intercourse.” IJ Decision at 5-6. Second, he concluded that Chen testified inconsistently as to the number of Chinese officials involved in the attempt to force his own sterilization, stating at his 1994 asylum hearing that the number was six or seven and testifying at his 2000 asylum hearing that the number was three. Because petitioner assaulted one of the officials, and because the encounter precipitated his flight from China, the IJ considered the unexplained “yawning gap between three and six or seven” a “significant inconsistency.” Id. at 7.

We note, however, that Chen’s 1994 testimony was far from clear on this second point. The use of inconsistent terms by both the IJ and Chen himself — “cadres,” “production brigade,” “sterilization team” — to describe the government officials involved in the 1991 confrontation may support Chen’s testimony in 2000 that more than three people came to his house in 1991 but fewer than six or seven people actually attempted to seize him. Indeed, it is possible that one might reasonably infer from Chen’s 1994 testimony that two groups of people came to look for him together: cadres from a production brigade and other persons from a sterilization team.

In reviewing asylum determinations we defer to the IJ’s factual findings if they are “ ‘supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.’ ” Zhou Yun [430]*430Zhang v. United States INS, 386 F.3d 66, 70 (2d Cir.2004) (quoting Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam) (quoting Diallo v. INS, 232 F.3d at 287)). To reverse an IJ’s factual finding, we must conclude “that the evidence not only supports [a] conclusion” favorable to the asylum applicant “but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original); accord Zhou Yun Zhang v. United States INS, 386 F.3d at 73 (and cases cited therein); see 8 U.S.C. § 1252(b)(4)(B). As we have noted, such deference is particularly appropriate with respect to factual findings as to credibility. See Zhou Yun Zhang v. United States INS, 386 F.3d at 73; Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 146 n. 2 (2d Cir. 2003); Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997).

This is not to say that an IJ can completely insulate his decision from review “simply by dismissing all of an applicant’s testimony on credibility grounds.” Secaida-Rosales v. INS, 331 F.3d at 307. But the scope of our credibility review is “exceedingly narrow.” Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999). “[W]e look to see if the IJ has provided ‘specific, cogent’ reasons for the adverse credibility finding and whether those reasons bear a ‘legitimate nexus’ to the finding.” Zhou Yun Zhang v. United States INS, 386 F.3d at 74 (quoting Secaida-Rosales v. INS, 331 F.3d at 307). Such review “is meant to ensure that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Id.

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121 F. App'x 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chen-v-united-states-department-of-justice-ca2-2005.