Da Tong Peng v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2800
___________
DA TONG PENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-313-971)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 29, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: August 5, 2009 )
___________
OPINION
___________
PER CURIAM
Da Tong Peng petitions for review of an order of the Board of Immigration

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Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the
reasons that follow, we will deny his petition.
I.
Peng, a native and citizen of China, entered the United States on October 21, 2000
on a nonimmigrant business visitor’s visa, which he overstayed without authorization.
On February 14, 2001, he applied for asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). He was placed into removal proceedings in March
2001. Following a hearing on November 3, 2003, the IJ denied relief. On appeal, the
BIA remanded the record back to the IJ “for a clear credibility determination,” and stated
that the parties could provide additional evidence on remand. On August 28, 2006, a
second hearing was conducted before a new IJ. Peng submitted additional corroborating
exhibits, including a medical record and a letter from his wife in China. The IJ again
denied Peng’s requests for relief, and the BIA adopted and affirmed the IJ’s decision.
Peng filed a petition for review.
The IJ based his denial of relief on his conclusion that Peng was not a credible
witness. (App. 34, 44-47.) This finding was based primarily on three pieces of evidence:
the letter from Peng’s wife, the consular investigation, and the “serious and material
inconsistencies” between Peng’s original and amended asylum applications. (App. 34-
35.) Peng submitted a letter from his wife dated March 26, 2005, which he testified was
written in response to the BIA’s instruction to submit additional evidence on remand.

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(App. 164.) At the conclusion of the letter, Peng’s wife wrote: “Attached is the
Photocopy of Proof of Hospitalization, CT diagnosis, bone fracture pictures, and medical
condition, &c.” (App. 239.) The IJ found these statements troubling, as he explained:
In addition, the wife’s affidavit specifically mentioned after her
alleged signature, attached is the photocopy of proof of hospitalization, C.T.
diagnosis, bone fracture, pictures, and medical conditions certification, and
etc. Again, none of those records of a bone fracture, a C.T. diagnosis were
ever[] provided to this Court. The respondent’s wife did not provide them
with the letter that was provided to this Court. In fact, the only medical
record provided to this Court was related to the respondent suffering
allegedly some form of pneumonia which he argued was somehow related
to the treatment he received [at] the hands of the Chinese police for his
allegedly practicing of falun gong.
The Court finds it significant that when you review respondent’s two
affidavits that were provided to this Court, neither one of them mentions
bone fractures or the need apparently for a CAT scan. Neither one of them
mentions that the respondent had a CAT scan. This raises serious concerns
for this Court as to the credibility which goes to the heart of this case. The
Court is specifically referring to Exhibit 3, the first detailed affidavit
provided by the respondent as well as a subsequent amended affidavit,
Exhibit 7. Therefore, the wife’s letter grays [sic] serious and material issues
for this Court when considering the credibility of the respondent.
(App. 35-36.)
Next the IJ addressed the consular investigation into the authenticity of three
documents submitted by Peng in support of his asylum claim: a Letter of Appointment
from his alleged former employer dated November 11, 2007 (App. 457-58), a Certificate
of Search Number 537 (App. 460-61), and a Subpoena Number 843 (App. 463-64), both
dated November 2000 and issued by the Chengdu City Public Security Bureau. He
testified that his wife provided these documents to him, but he did not know how they

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came to be in her possession. (App. 137, 168-69.) She did not address this issue in her
letter or any other document of record. (App. 238-39.) The investigation was conducted
by Julia Feng, a Foreign Service National Investigator of the U.S. Immigration and
Naturalization Service (“INS”), on May 14, 2002. After Ms. Feng was unable to find the
phone number for Peng’s alleged former employer, “Si Chuan Provincial Key
Constructions the Industry and Commerce Limited”, she contacted Cheng Du District
Shen Xian Shu Officials and Veterans Training Center. The person she spoke to stated
that he had never heard of that organization. (App. 395.) Next Ms. Feng attempted to
ascertain the authenticity of the “search” and “subpoena” documents by contacting the
Cheng Du City Public Security Bureau. (Id.) She faxed redacted copies of the “search”
and “subpoena” documents to Mr. Yang Nan Jun, Duty Officer at the Operation Center,
who informed her that the documents did not conform to those used by the Cheng Du City
Public Security Bureau because: (1) the header did not contain the full name “People’s
Republic of China Criminal Procedural Laws” and (2) the format generally differed from
that of authentic versions of the documents. (App. 395-96.) For further confirmation,
Ms. Feng contacted several other local public securities in mainland China and obtained
samples of their search and subpoena certificates, which she concluded were totally
different from the ones submitted by petitioner. (App. 396.) The IJ found Ms. Feng’s
conclusion that Peng’s documents appeared to be fraudulent to be “compelling”. (App.
38.)

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However, Peng did state: “On April 21, 2000, I was arrested by the Security1
Department of Chengdu Military District and then transferred to Chengdu City, Public
Security Bureau. I was sick and collapsed. The police sent me to the emergency room in
the hospital on May 7th. Three days later, I was allowed to go home and recover. During
that time, I prepared to escape from China. On October 22, I left for the U.S. Soon after
I left, the Chinese Government issued a warrant for my arrest and searched my home for
me.” (App. 442.)
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Finally, the IJ contrasted the two asylum affidavits provided by Peng. In his first
affidavit, which he submitted with his asylum application dated September 1, 2001, Peng
stated that he was forced “to go to a meeting to ‘study’” and was “required to write
criticisms of Falun Gong and our confessions,” and that since then, all of his construction
projects were terminated and he was not paid for his finished projects. (App. 442.) He
did not allege any physical harm. In his second affidavit, dated January 10, 2003, he1
alleged:
7. At around 9:30 in the evening on December 25, 1999, two plain
clothed police officers took me from my house to Xiaotianzhu Police
Station. At the Police Station, another uniformed police officers
interrogated me. During the interrogation, I was beaten in my legs by
another plain-clothes officer with a bamboo stick. I was released at around
midnight, and told to provide a detailed report to the police station. After I
was released, I could see blackened marks on both my legs.
8. Because I didn’t submit the report as they required, the next day, I
was taken to Xiaotianzhu Police Station again at around 9:00 p.m. for
interrogation. During this interrogation, I was beaten and tortured for even
longer and more severe than the previous one. I was beaten by bamboo
sticks. The officer(s) also made me sit in a chair, and suddenly pushed the
chair on the ground with me in it. The fall made the back of my head
swollen and in pain. After my wife guaranteed that I would not practice
Falun Gong anymore, I was released at around 3:00 a.m. on December 27,
1999. My legs and hands all bled from the beating and torture.

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. . .
11. On April 21, 2000, at around 1:00 p.m., three uniformed military
officers came to my house, and took me to a facility in the Military District,
where I was continuously interrogated and tortured daily. From April 21,
2000 to April 24, the military officers tortured me by forcing me to perform
a military stand continuously. I was also refused to be given water to drink.
12. On April 24, 2000, three police officers transported me to a
police facility, where I was detained until April 30, 2000. I was
interrogated daily during this detention.
13. On April 30, 2000, I was escorted to the Emergency Room of
No. 3 Hospital of Chengdu because of pneumonia. I was discharged by the
hospital on May 2, 2000. After I left the hospital, my wife sent me to a
rented place in Tai’an Township, until I finally managed to get out of China
on October 20, 2000.
(App. 389-90.) Based on the differences between the two statements, the IJ concluded
that, when taken in conjunction with his wife’s letter, the “material misstatements or
omissions” compelled the Court to reach “a negative credibility finding.” (App. 42.)
In light of his adverse credibility determination, the IJ concluded that Peng could
not meet his burden of demonstrating past or future persecution and, accordingly, denied
all forms of relief and ordered Peng removed to China. The BIA adopted and affirmed
the IJ’s determination, finding that the IJ’s adverse credibility determination was amply
supported by the record and that Peng failed to meet his burden of proving that the
documents submitted in support of his claims were authentic.
II.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. To be
granted asylum as a refugee, an applicant must establish that she is unable or unwilling to

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return to her homeland “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). To be entitled to withholding of removal, an
applicant must prove that her “life or freedom would be threatened in that country
because of [his] race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3). An applicant for either form of relief must
offer “credible, direct and specific evidence” in support of her claim. See Chen v.
Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004); Balasubramahim v. INS, 143 F.3d 157, 165
(3d Cir. 1998).
The IJ denied relief because he found that Peng was not credible. Because the
BIA adopted the adverse credibility finding made by the IJ, we review both
determinations at this time. See Chen, 376 F.3d at 222; Voci v. Gonzales, 409 F.3d 607,
612 (3d Cir. 2005). The adverse credibility determination is a factual finding subject to
review under the substantial evidence standard. See Kaita v. Attorney General, 522 F.3d
288, 296 (3d Cir. 2008). “Under this deferential standard of review, we must uphold the
credibility determination of the BIA or IJ unless ‘any reasonable adjudicator would be
compelled to conclude to the contrary.’” Chen, 376 F.3d at 222 (quoting 8 U.S.C. §
1252(b)(4)(B)). However, an adverse credibility finding based on inconsistencies in the

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In enacting the Real ID Act of 2005, Congress changed the credibility determination2
standard. See Real ID Act of 2005, Pub. L. No. 109-13, Div. B, § 101, 119 Stat. 231
(May 11, 2005), codified at 8 U.S.C. § 1158(b)(1)(B)(iii). However, this new provision
only applies to applications for relief filed after May 11, 2005, the effective date of the
Act. See id. As the Government concedes, these changes are not applicable to the instant
petition, as Peng filed his application for relief prior to that date. See Chukwu v.
Attorney General, 484 F.3d 185, 189 (3d Cir. 2007).
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record must be based on matters that go to the heart of the asylum claim. See Kaita, 5222
F.3d at 296.
III.
Based on a thorough review of the record, we conclude that the IJ’s adverse
credibility finding is supported by substantial evidence, as is thoroughly summarized in
the IJ’s decision.
Peng’s remaining claims relate to the fraud investigation conducted by the INS.
First Peng claims that, in faxing a copy of the search and subpoena documents to the
Cheng Du City Public Security Bureau, the Government violated 8 C.F.R. § 208.6, which
bars the Government from disclosing information to a foreign government which would
indicate that one of its citizens or nationals has applied for asylum in the United States.
Peng did not raise this issue before the IJ, but he did present it to the BIA, which
concluded that there was “insufficient support for respondent’s claim that the rules
regarding confidentiality were breached during the investigation.” (App. 2-3.) In her
report, Ms. Feng stated that she redacted petitioner’s name before faxing the search and
subpoena documents to the Cheng Du City Public Security Bureau. (App. 395.)

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Nonetheless, Peng argues that “both the search certificate and the subpoena contained
other identifying information such as document numbers, Mr. Peng’s home address and
the name of the detectives and officers assigned to the case.” (Pet’r Br. 8.) As the
Government points out in its brief, however, there is no evidence in the record to indicate
that this information was not redacted. (Resp’t Br. 32-33.) The consular report was
introduced against Peng during his first IJ hearing in 2003. His second hearing did not
take place until 2006. During this time he had ample opportunity to sufficiently develop
the factual basis for his claim. For example, he could have requested copies of the
redacted versions of the documents as they appeared when faxed or sought additional
information from Ms. Feng regarding the contents of the documents or her methods of
conducting the investigation. See 8 U.S.C. § 1229a(b)(1); 8 C.F.R. § 1003.35(b). As he
failed to develop any factual record to support his claim, we cannot conclude, based on
the record before us, that such a violation has occurred. Compare with Corovic v.
Mukasey, 519 F.3d 90, 95 (2d Cir. 2008) & Zhen Nan Lin v. United States Department of
Justice, 459 F.3d 255, 260-61 (2d Cir. 2006).
Additionally, Peng does not indicate what the remedy for any such violation would
be. In Corovic v. Mukasey, 519 F.3d 90 (2d Cir. 2008), the Second Circuit held:
[A] violation of section 208.6 could compel this Court, as it did in Zhen
Nan Lin to “hold that the Consular Report [produced by the foreign
government] is inherently unreliable and cannot support the BIA’s adverse
credibility finding.” Id. at 272. In the alternative, it might compel us to
remand to the IJ for a new determination as to whether the document it
submitted for verification is, in fact, fraudulent. Zhen Nan Ling further

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recognized that, in violating section 208.6, “[t]he government through its
negligence has potentially exposed [the petitioner] and his family to risks
beyond those that . . . caused [them] to flee.” Id. at 268. We therefore
remanded that case, ordering that, on remand, the BIA evaluate the arguable
risk of persecution, independent of the original claim for asylum and
withholding of removal, arising from the government’s violation of section
208.6.” Id.
Id. at 96. In the instant case, even assuming that such a violation occurred, in light of the
overwhelming evidence supporting the IJ’s determination that Peng was not credible, we
can see no reason to remand for a re-assessment of Peng’s credibility without the consular
report. The IJ’s adverse credibility determination relied heavily on the conflict between
Peng’s first and second asylum affidavits, the unresolved issues raised by his wife’s letter,
and the failure of both Peng and his wife to identify the origins of the documents he
submitted in support of his claim. There is no reason to believe that a re-evaluation of the
evidence on remand would produce a different result. See id. (“Because the IJ’s finding
of fraud with respect to the Court decision was based on evidence other than Exhibit 7,
however, the exclusion of Exhibit 7 would not necessarily have altered the IJ’s conclusion
that the Court Decision was fraudulent . . . We conclude, therefore, that this error is not a
basis for remand.”). Finally, Peng has failed to make any argument that he might now be
eligible for asylum, withholding or CAT relief based on any alleged violation of § 208.6.
See Zhen Nan Lin, 459 F.3d at 263.
Finally, Peng argues that the admission of the consular report violated his right to
due process as it was inherently unreliable and contained multiple levels of hearsay. In

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Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003), we concluded that the BIA had
violated petitioner’s right to due process by basing its adverse credibility determination
almost entirely on a State Department letter summarizing the results of a consular
investigation. See id. at 408. As we explained, “[b]ecause the Federal Rules of Evidence
do not apply in asylum proceedings, ‘[t]he test for admissibility of evidence . . . is
whether the evidence is probative and whether its use is fundamentally fair so as not to
deprive the alien of due process of law.’” Id. at 405 (quoting Bustos-Torres v. INS, 898
F.2d 1053, 1055 (5th Cir. 1990). The instant case is readily distinguishable from
Ezeagwuna, as Peng had access to the report for several years prior to his second hearing
and, therefore, had ample time to collect and present rebuttal evidence, which he failed to
do. Additionally, the report in this case came directly from the investigator, who
provided information regarding her background, explained how the investigation was
conducted, and related what she had learned based on her own conversations with
officials of the Chinese government. Compare id. at 406-08. Additionally, as we have
already explained, the IJ relied on much more than merely the consular report in
determining that Peng was not credible.
Based on the foregoing, we will deny the petition for review.

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