He Xin Chen v. Attorney General of the United States

351 F. App'x 636
CourtCourt of Appeals for the Third Circuit
DecidedNovember 10, 2009
DocketNo. 08-1614
StatusPublished

This text of 351 F. App'x 636 (He Xin Chen v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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He Xin Chen v. Attorney General of the United States, 351 F. App'x 636 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

RENDELL, Circuit Judge.

Petitioner He Xin Chen petitions for review of an order of removal issued by the Board of Immigration Appeals (“BIA”). We will deny the petition.

Background

Petitioner, a Chinese citizen, applied for asylum in 2003 after entering the United States. He claimed that, pursuant to China’s family planning policy, officials mandated that he be sterilized because his wife had already given birth to one son. He submitted as evidence his wife’s medical records, the sterilization order issued by the government in 2002, and a receipt issued in 1994 to petitioner and his wife when they paid a fine for having a child before marriage. On October 15, 2004, Immigration Judge Rosalind K. Malloy found petitioner’s claims credible and determined that petitioner’s “opposition to the family planning practices of China constitutes a political opinion” for which he would be persecuted upon returning to China. PetApp. I, at 33. Judge Malloy granted asylum.

On March 21, 2005, Elaine Wooton, a forensic document examiner employed by U.S. Immigration and Customs Enforcement (“ICE”), sent a brief letter to an ICE attorney challenging the authenticity of the sterilization order and fine receipt submitted by petitioner. Wooton noted that the two documents bear nearly identical markings from a rubber stamp, and concluded that these impressions had been generated by the same stamp, at about the same time. If this were true, then it could not be the case, as petitioner claimed, that the fine receipt was issued in 1994 while the sterilization order was issued in 2002. (It is not clear what prompted Wooton to write this letter, or why it was not issued until five months after the asylum hearing.) On April 11, the Government moved to reopen the removal proceedings. On April 15, before petitioner could respond, Judge Malloy granted the motion and reopened the proceedings.1

On September 28, Gary Herbertson, also a forensic document examiner, sent a brief letter to petitioner’s counsel regarding the authenticity of the documents. Herbert-son concluded that there was insufficient evidence to determine whether one stamp (as Wooton believed) or two stamps (as petitioner claimed) had been used for the two documents.

[638]*638At a hearing on October 11, Judge Mal-loy heard testimony from Wooton and Herbertson. Wooton testified that she had examined the two stamp impressions side by side, and had determined that they shared “minute, microscopic marks.” Pet. App. II, at 75. Wooton testified that she was “100% sure” that these similarities meant that the impressions had been created by the same stamp at the same time. Pet.App. II, at 89. However, Wooton was unable to identify the specific marks shared by the impressions because she had not kept any notes of her work (pursuant to an Immigration and Customs Enforcement policy) and did not have copies of the fine receipt or sterilization notice available to her during the hearing.

Herbertson testified that he had used a different methodology to compare the two stamp impressions. He had superimposed an image of one of the stamp impressions on an image of the other, and had found that there were several “extraneous marks” not shared by the two impressions. PetApp. II, at 13. Herbertson thus disagreed with Wooton’s conclusion that it could be definitively concluded that the impressions were generated by one stamp. However, since Herbertson could not determine with certainty that the impressions were generated by two different stamps, he was unable to opine that the documents were definitely authentic.

On January 8, 2007, Judge Malloy issued an amended decision finding that the sterilization notice had been fabricated. She cited several factors in support of her decision: the experts’ written findings; her own insights into the likelihood that two stamp impressions, generated eight years apart, could be so similar; and a State Department report stating that documentation from China is sometimes fabricated. Since she determined that the sterilization notice had been fabricated, and since that notice was the critical evidence supporting petitioner’s claim of persecution, Judge Malloy vacated the earlier order granting asylum and issued a new order denying petitioner’s asylum application.

Petitioner appealed this determination to the BIA. On February 8, 2008, the BIA issued a decision affirming Judge Malloy’s decision and ordering petitioner’s removal. The BIA decision summarized the opinions of Herbertson and Wooton and the other evidence submitted by petitioner. The BIA found that Judge Malloy’s decision was not clearly erroneous, since Herbert-son had been unable to definitively conclude that the documents were authentic. Since the sterilization notice was central to petitioner’s claim, the BIA also determined that it was not clearly erroneous to find that “his entire asylum claim lacked credibility.” Pet.App. I, at 7.

This petition followed.

Petitioner makes two arguments. His core argument is that he was unable to adequately cross-examine Wooton at the October 11 hearing because she could not consult either her notes or the challenged documents, and that his due process rights were violated when Judge Malloy (and then the BIA) considered Wooton’s report despite this problem. As a result, petitioner contends, Wooton failed to “disclose the underlying facts or data [supporting her analysis] on cross-examination,” see Fed.R.Evid. 705, as envisioned by the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Petitioner also criticizes Wooton’s methodology in examining the documents and argues that Herbertson’s was superi- or. Petitioner also makes a second, cursory argument that Judge Malloy and the BIA failed to consider the record as a whole to find that, even accepting Woo-ton’s theory, petitioner was credible and eligible for asylum.

[639]*639Discussion

We have jurisdiction under 8 U.S.C. § 1252 to review a final order of removal issued by the BIA. The BIA had jurisdiction over petitioner’s appeal under 8 C.F.R. § 1003.1. When the BIA conducted an independent analysis of the record, as it did here, we limit our review to the BIA’s final order, rather than the underlying determination by an immigration judge. Ez-eagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001).

We apply a deferential standard of review when reviewing decisions of the BIA. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006).

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351 F. App'x 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/he-xin-chen-v-attorney-general-of-the-united-states-ca3-2009.