Jin Zhen Chen v. United States Department of Justice

Second Circuit

Jin Zhen Chen v. United States Department of Justice

151 F. App'x 85

CourtCourt of Appeals for the Second Circuit

DecidedOctober 26, 2005

DocketNo. 03-41046-AG NAC

StatusPublished

Cited by2 cases

This text of 151 F. App'x 85 (Jin Zhen 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.

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Jin Zhen Chen v. United States Department of Justice, 151 F. App'x 85 (2d Cir. 2005).

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Opinion

Petitioner Jin Zhen Chen (“Chen”) petitions for review from the November 2003 final order of removal of the BIA affirming, without opinion, the decision of the Immigration Judge (“IJ”) denying her claims for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. We assume the parties’ familiarity with the facts and procedural history of the case.

Where, as in this case, the BIA affirms, without opinion, the decision of the IJ, we review the IJ’s factual findings and credibility determinations under the substantial evidence standard; “a finding will stand if it is supported by reasonable, substantial, and probative evidence in the record when considered as a whole.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotations omitted); see Dong v. Ashcroft, 406 F.3d 110, 112 n. 1 (2d Cir.2005) (per curiam).

In this case, the IJ denied Chen’s application based solely on an adverse credibility finding, namely, because of the lack of specificity in her testimony. The IJ’s decision in this regard is not supported by substantial evidence. The IJ erred in finding that Chen’s asylum application and testimony were inconsistent. Chen provided detailed testimony regarding her forced IUD insertion, hiding from the authorities, and telling the cadres that she was too weak to be sterilized when they first wanted to take her for sterilization. Moreover, Chen’s failure to recall the specific date of her sterilization, “which reveals] nothing about [her] fear of ... safetyf,] ... [is a] minor inconsistency] that cannot form the basis of an adverse credibility finding.” Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir.2000) (internal quotations and citations omitted). She was able to recall that her sterilization occurred two weeks after the birth of her second child, who was born on April 26, 1994.

Further, on remand, the BIA should make a specific finding with regard to Chen’s CAT claim.

Accordingly, we grant Chen’s petition, vacate the BIA’s order and remand to the BIA for further proceedings.

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Petitioner Jin Zhen Chen (“Chen”) petitions for review from the November 2003 final order of removal of the BIA affirming, without opinion, the decision of the Immigration Judge (“IJ”) denying her claims for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. We assume the parties’ familiarity with the facts and procedural history of the case.

Where, as in this case, the BIA affirms, without opinion, the decision of the IJ, we review the IJ’s factual findings and credibility determinations under the substantial evidence standard; “a finding will stand if it is supported by reasonable, substantial, and probative evidence in the record when considered as a whole.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotations omitted); see Dong v. Ashcroft, 406 F.3d 110, 112 n. 1 (2d Cir.2005) (per curiam).

In this case, the IJ denied Chen’s application based solely on an adverse credibility finding, namely, because of the lack of specificity in her testimony. The IJ’s decision in this regard is not supported by substantial evidence. The IJ erred in finding that Chen’s asylum application and testimony were inconsistent. Chen provided detailed testimony regarding her forced IUD insertion, hiding from the authorities, and telling the cadres that she was too weak to be sterilized when they first wanted to take her for sterilization. Moreover, Chen’s failure to recall the specific date of her sterilization, “which reveals] nothing about [her] fear of ... safetyf,] ... [is a] minor inconsistency] that cannot form the basis of an adverse credibility finding.” Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir.2000) (internal quotations and citations omitted). She was able to recall that her sterilization occurred two weeks after the birth of her second child, who was born on April 26, 1994.

Further, on remand, the BIA should make a specific finding with regard to Chen’s CAT claim.

Accordingly, we grant Chen’s petition, vacate the BIA’s order and remand to the BIA for further proceedings.

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151 F. App'x 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jin-zhen-chen-v-united-states-department-of-justice-ca2-2005.

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