Hua Lan An v. Attorney General of the United States

369 F. App'x 374
CourtCourt of Appeals for the Third Circuit
DecidedMarch 8, 2010
DocketNo. 08-3732
StatusPublished

This text of 369 F. App'x 374 (Hua Lan An 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.

Bluebook
Hua Lan An v. Attorney General of the United States, 369 F. App'x 374 (3d Cir. 2010).

Opinion

OPINION OF THE COURT

LOURIE, Circuit Judge:

Hua Lan An, a citizen of the People’s Republic of China, petitions for review of a [375]*375final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We defer to the IJ’s factual determination, sustained by the BIA, that An’s testimony was not credible based on several perceived inconsistencies and will deny the petition for review.

I. BACKGROUND

An entered the United States in late November 2004 and submitted an application for asylum in November 2005. In her application, An stated that she had taken in and cared for a North Korean woman she found in the street, who had been injured during her escape across the border. “Several days later,” the woman was taken away by the police. An was told by her husband that a neighbor had informed him that she had been reported for keeping a smuggler in her house, and that the police were looking for her. An hid with relatives, and was told by her husband that “several” police officers came to the house “several” times. She then fled to the United States. In a phone conversation, her husband told her that the police had gone to the house “several” times looking for her. She also stated that the police had found an anti-Communist book, entitled “The Nine Criticisms towards the Communist Party” that she had sent to her husband.

For corroborating evidence, An included letters from her mother, husband, and uncle, in addition to newspaper articles with photos depicting her participation in various anti-Communist demonstrations.

At her hearing before the IJ, An testified that the North Korean woman had stayed in their home for 27 days. In response to the IJ’s question as to why An’s statement did not specify 27 days, but instead said “several,” An responded “I don’t remember.” The IJ also asked about An’s husband’s statement, which indicated that it had been “a couple of days,” and responded to the IJ’s question as to whether it was consistent with her testimony by saying that it was “[pjretty much the same.”

An also testified that her husband had said the police initially visited their home every other week, that later the visits were about once a month, and that at the time, “sometimes they come every month.” When questioned about the specific number of times the police had come, An stated “I didn’t specifically mean they come every month. Sometimes they came once every month, and sometimes they stop for a few months.” An also testified that her neighbor had told her husband that the police had shown him a warrant for An’s arrest. She was asked for evidence and, on the following day of her hearing, An submitted a letter from her neighbor in China stating that the police had shown the neighbor a warrant for An’s arrest.

At the conclusion of the two-day hearing the IJ found An’s testimony was not credible. Central to the IJ’s adverse credibility determination was the inconsistency between An’s statement that the North Korean woman stayed with her for “several” days, her testimony that it was 27 days, and the statements of her uncle and husband that it was “a couple” of days. In addition, the IJ identified other bases for the adverse credibility determination. Specifically, An produced a letter from her neighbor who had seen the arrest warrant, although she had testified that it had “been a while” since she had spoken to her neighbor. Also, An’s statement said she was “perceived to be a smuggler,” whereas she testified that she considered herself to be a good Samaritan. The IJ found problematic An’s explanation that the police were uninterested in her husband because [376]*376he placed all the blame on her and because of her testimony that her husband had not explained this in his statement because he was afraid it would lead to marital problems. The IJ also found An’s testimony regarding the frequency of police visits to be inconsistent. Lastly, the IJ found that An had not produced sufficient evidence to show that the Chinese government is aware of her involvement in anti-government protests in the United States.

As a result of his adverse credibility determination, the IJ determined that An had not presented sufficient evidence to meet her burden of proving past persecution or a well-founded fear of future persecution in order to qualify for asylum. The IJ also found unsupported An’s alternate ground to support a claim of political persecution, based on her protests against the Chinese government while in the United States, because she is not identifiable in any photos in which she’s shown protesting and has not authored any articles or otherwise made herself identifiable. The IJ found that An did not present evidence that she more likely than not would face torture if she returned to China, and that she was therefore not entitled to protection under CAT.

On appeal, the BIA adopted the IJ’s adverse credibility determination, based on the inconsistencies cited by the IJ. The BIA specifically noted the inconsistencies as to the number of days the North Korean woman stayed in An’s home and the frequency of police visits in affirming the decision of the IJ.

An timely petitioned for review. We have jurisdiction pursuant to 8 U.S.C. § 1252(a).

II. DISCUSSION

In order to be granted asylum, An must show that she cannot return to China “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A); Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004). An applicant may establish such a fear by showing past persecution, Kibinda v. Atty. Gen., 477 F.3d 113, 119 (3d Cir.2007), or by showing a subjective fear of future persecution and an objectively reasonable possibility of suffering such persecution. Chukwu v. Att’y Gen., 484 F.3d 185, 188 (3d Cir.2007). To show eligibility for withholding of removal, An must demonstrate a clear probability that her life or freedom would be threatened on account of one of the protected grounds. 8 C.F.R. § 1208.16(b); Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005). An applicant who fails to prove eligibility for asylum “perforce fails to show entitlement to withholding of removal.” See Chukwu, 484 F.3d at 188-89 (3d Cir.2007).1

We review the decision of the Board of Immigration appeals. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005).

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369 F. App'x 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hua-lan-an-v-attorney-general-of-the-united-states-ca3-2010.