Yirong Chen v. Holder

318 F. App'x 399
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 27, 2009
DocketNo. 08-3077
StatusPublished

This text of 318 F. App'x 399 (Yirong Chen v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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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Yirong Chen v. Holder, 318 F. App'x 399 (6th Cir. 2009).

Opinion

KEITH, Circuit Judge.

Petitioner Yirong Chen seeks this court’s review of an order from the Board of Immigration Appeals (the “BIA”), denying his application for asylum, withholding of removal and protection under the Convention Against Torture based on an adverse credibility determination. Because substantial evidence supports the BIA’s decision, we DENY the petition for review and AFFIRM the BIA’s decision.

I.

Petitioner Yirong Chen (“Chen”) is a native and citizen of the People’s Republic of China (“China”). On April 17, 1993, he entered the United States through No-gales, Arizona, without being admitted or paroled by an immigration officer. Chen subsequently filed an application for asylum, withholding of removal, and protection under the Convention Against Torture with the Immigration and Naturalization Service (“INS”),1 and was interviewed by an asylum officer on December 9, 1996. On May 15, 1997, INS initiated removal proceedings against Chen, pursuant to 8 U.S.C. § 1229(a). He was charged with being an alien present in the United States, who has not been admitted or paroled under Section 212(a)(6)(A)(I) of the Immigration and Nationality Act. In a full hearing before an Immigration Judge (“IJ”), Chen conceded that he was subject to removal, and the court sustained the charge.

Chen filed two additional applications for asylum, withholding of removal, and relief under the Convention Against Torture. All three applications for asylum were premised on Chen’s alleged fear of persecution, as a result of his purported resistance to China’s family planning practice. The evidence at Chen’s hearing before the immigration court consisted of: (1) his testimony; (2) his three applications [401]*401for asylum;2 (3) a copy of a diagnosis x-ray; (4) copies of what he purports are sterilization certificates for his wife and himself; (5) a fine receipt issued by the Chinese government; and (6) a supplemental statement. The Government submitted copies of: (1) the Profile of Asylum Claims & Country Conditions (the “Profile Report”) on China from April 1998 and June 2004 and (2) Country Reports on China from 1999, 2003, 2004 and 2005.

On April 5, 2006, the IJ found that Chen lacked credibility because he failed “to provide convincing explanations for” discrepancies and omissions in his testimony. The IJ cited inconsistences and unconvincing explanations related to: (1) the existence of a third child; (2) the circumstances surrounding Chen’s allegedly forced sterilization; (3) Chen’s failure to explain why the government waited eighteen months to sterilize him after the birth of his second child; (4) the circumstances surrounding Chen’s wife’s intrauterine device (“IUD”) and forced sterilization; and (5) Chen’s alleged detention and his wife’s alleged arrest. The IJ found that Chen’s inconsistencies as to sterilization and the existence of family members were material, since they went to the substance of his claim that he was resisting China’s “coercive” family planning practices.

The IJ was also suspicious of Chen’s claim that he was sterilized sometime in 1992, given the 1988 Profile Report drafted by the State Department, which found that there have been “no, or few, examples” since the 1980s of forced sterilizations or abortions in the region where Chen resided. The IJ also noted that Chen failed to submit, in any of his three applications, medical evidence from a specialist demonstrating that he had, in fact, been sterilized.

The IJ’s decision became the final agency decision on December 26, 2007 when it was adopted and affirmed by the BIA. See Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir.2007).

II.

In the instant appeal, Chen challenges the IJ’s finding that his oral testimony and written statements about past persecution lacked credibility.3 We review the IJ’s [402]*402credibility determination under the deferential substantial evidence standard, which mandates that we find the agency’s factual findings to be conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Tapucu v. Gonzales, 399 F.3d 736, 738 (6th Cir.2005); Hassan v. Gonzales, 403 F.3d 429, 434 (6th Cir.2005). The IJ’s reasons for rendering an adverse credibility determination must go to “the heart of the applicant’s claim.”4 Sterkaj v. Gonzales, 439 F.3d 273, 275 (6th Cir.2006) (internal quotation marks omitted).

Given Chen’s many inconsistent statements concerning material matters, and his failure to corroborate his weak testimony with any evidence establishing the truth of his alleged persecution, there is substantial evidence to support the IJ’s adverse credibility determination. See Matter of A-S-, 21 I. & N. Dec. 1106, 1112 (BIA 1998) (stating “a credibility determination apprehends the overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence”) (citations and internal quotation marks omitted); Matter of Y-B, 211. & N. Dec. 1136, 1139 (BIA 1998) (stating that “the weaker an alien’s testimony, the greater the need for corroborative evidence”). We therefore need not expressly consider Chen’s claim for asylum. See Guang Run Yu v. Ashcroft, 364 F.3d at 703.

We must address one procedural issue before toning to the inconsistent facts at issue in this case. To his first asylum application, Chen attached a document entitled “Addendum.” The name on the Addendum was not his own, but listed within the text was the year Chen’s wife first became pregnant and the birth date of his first child. Chen asks this Court to discount the IJ’s finding as to the Addendum as well as unidentified “dates” and their relevance to his credibility, but has failed to demonstrate that he raised this argument to the BIA before raising it here. We are precluded from reviewing procedural errors that could have been corrected by the BIA, but are being raised for the first time on appeal. Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir.2006). Because there is more than sufficient evidence independent of the Addendum that demonstrates Chen’s lack of veracity, it would be futile to remand this issue to determine whether the Addendum should be discounted. Xiao Ji Chen v. United States DOJ, 471 F.3d 315, 339 (2d Cir.2006) (stating “[t]he overarching test for deeming a remand futile ... is when the reviewing court can ‘confidently predict’ that the agency would reach the same decision absent the errors that were made”). Instead, we will review Chen’s adverse credibility determination without regard to the Addendum.

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