He Xin Chen v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-1614
_____________
HE XIN CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
BIA No. A97-849-384
Immigration Judge: Rosalind K. Malloy
__________
Argued: September 29, 2009
Before: RENDELL and AMBRO, Circuit Judges,
and McVERRY,* District Judge.
(Filed: November 10, 2009)
__________________
* Honorable Terrence F. McVerry, Judge of the United States District Court for the
Western District of Pennsylvania, sitting by designation.

-- 1 of 9 --

2
Marco Pignone, III, Esq. [ARGUED]
Getson & Schatz
230 South Broad Street, Suite 1001
Philadelphia, PA 19102
Counsel for Petitioner
He Xin Chen
Paul Fiorini, Esq. [ARGUED]
Richard M. Evans, Esq.
U. S. Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Attorney General of the United States
__________
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

-- 2 of 9 --

We do not endorse this practice. However, petitioner did have an opportunity to1
address the basis for reopening at the later hearing, and he does not claim prejudice.
3
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. Pet. App. 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

-- 3 of 9 --

4
On September 28, Gary Herbertson, also a forensic document examiner, sent a
brief letter to petitioner’s counsel regarding the authenticity of the documents.
Herbertson 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.
At a hearing on October 11, Judge Malloy 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. Pet. App. 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

-- 4 of 9 --

5
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 Herbertson 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.

-- 5 of 9 --

6
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 (1993). Petitioner also criticizes Wooton’s
methodology in examining the documents and argues that Herbertson’s was superior.
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 Wooton’s theory, petitioner
was credible and eligible for asylum.
Discussion
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. Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003); Abdulai
v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).

-- 6 of 9 --

The Government’s contention to the contrary is without merit, see Ezeagwuna,2
325 F.3d at 405; Abdulai, 239 F.3d at 550, and we do not agree that it is supported by
Achacoso-Sanchez v. INS, 779 F.2d 1260 (7th Cir. 1985), or Dandan v. Ashcroft,
339 F.3d 567 (7th Cir. 2003). See also Sankoh v. Mukasey, 539 F.3d 456, 466 (7th Cir.
2008) (“Due process demands an individualized assessment of each asylum applicant.”).
7
We apply a deferential standard of review when reviewing decisions of the BIA.
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review the BIA’s factual
findings—including adverse credibility determinations and determinations of whether an
asylum applicant meets the criteria for asylum—under the substantial evidence standard,
and do not reverse them “unless any reasonable adjudicator would be compelled” to reach
a different conclusion than that of the BIA. 8 U.S.C. § 1252(b)(4)(B); Kaita v. Attorney
General, 522 F.3d 288, 296 (3d Cir. 2008).
An alien facing removal is entitled to due process in asylum proceedings, and we2
review de novo claims that a petitioner’s due process rights were violated. Ezeagwuna,
325 F.3d at 405. For due process to be satisfied, the alien must have an opportunity to
review the record relied on by the decisionmaker; must be allowed to make arguments on
his own behalf; and must receive an individualized determination of his interests.
Abdulai, 239 F.3d at 550. Although the Federal Rules of Evidence do not apply in
asylum proceedings, due process requires that evidence be admitted in asylum
proceedings only when it is probative and its use is fundamentally fair. Ezeagwuna,
325 F.3d at 405. This, in turn, requires that the evidence be reliable and trustworthy. Id.

-- 7 of 9 --

8
When the BIA relies on evidence that does not meet these standards, it violates the alien’s
due process rights. Id. at 408.
We find petitioner’s arguments unpersuasive. Despite the fact that Wooton did not
have either her own notes or the challenged documents available to her at the hearing,
petitioner’s counsel was able to cross-examine Wooton effectively regarding her
methodology and findings. Wooton thus offered sufficient testimony at the hearing
regarding her professional background and her methodology for examining the
documents to enable Judge Malloy to evaluate her report. Wooton’s inability to identify
the specific marks that were shared by the two stamp impressions may have compromised
the clarity and effectiveness of her testimony. However, we do not find this deficiency so
serious that it rises to a due process violation. We therefore find that Wooton’s testimony
was sufficiently probative, reliable, and trustworthy for Judge Malloy to have relied on it
in evaluating the Government’s claim that petitioner’s evidence was fabricated. Even if
petitioner is correct that Rule 705 and Daubert would require the exclusion of Wooton’s
testimony in civil litigation, that does not mean that his right to due process was violated
in an immigration proceeding where, as petitioner concedes, those rules do not directly
apply.
Moreover, we cannot conclude that a “reasonable adjudicator would be
compelled” to reach different factual findings than those of the BIA. See 8 U.S.C.
§ 1252(b)(4)(B). Although we might have given Wooton’s testimony less weight than

-- 8 of 9 --

9
Judge Malloy and the BIA did, that does not mean that the BIA was “compelled” to
conclude that Herbertson’s testimony should be credited over Wooton’s.
Nor can we conclude that Judge Malloy or the BIA erred in not explaining how the
false document affected petitioner’s credibility in light of the record as a whole. Once
Wooton’s conclusion was accepted, it was reasonable for the BIA to find that petitioner’s
claims as a whole were not credible and were not sufficiently substantiated. We are not
persuaded that the BIA gave short shrift to petitioner’s other evidence when it reached
this conclusion.
Conclusion
We will therefore DENY the Petition for Review.

-- 9 of 9 --