Liu Wen v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4638
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LIU WEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A098-889-524
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 8, 2009
Before: MCKEE, HARDIMAN and COWEN, Circuit Judges
(Opinion filed: December 17, 2009)
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OPINION
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PER CURIAM
Liu Wen, a Chinese native and citizen, petitions for review of a final order of the
Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration Judge
(“IJ”) of Wen’s application for asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). We will deny the petition for review.
Before the IJ, Wen testified that he had suffered past persecution and feared future

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persecution by the Chinese government as a practitioner of Falun Gong. Wen testified
that he began practicing Falun Gong in December 2004 after his uncle introduced him to
the practice. A.R. 100. He started by going to gatherings with his uncle in August 2004,
but started practicing himself in December, once or twice a week. A.R. 106. He was
arrested in February 2005 with seven or eight people, and taken to the police station. Id.
He was locked up for a bit over 20 days, during which time he was interrogated and
beaten nearly every day. He was released when his parents paid the bail. He was then
required to report every Monday, and was occasionally smacked when he did not answer
questions about whether he was still practicing. A.R. 108-09. Wen testified that he
practiced Falun Gong in the United States once a week in Chinatown, but he was not
aware of the address. A.R. 110. He also distributed flyers about Falun Gong in
Chinatown about once a week. A.R. 114-15.
On cross-examination, Wen stated that when he was arrested in China, he was in
the home of another Falun Gong practitioner by the name of Lin, Zhen Hui. A.R. 116.
Wen also mentioned in testimony the names of others who were arrested with him. A.R.
117. Wen noted that his parents told him that the police had been coming to his home in
China a few times a month looking for him, but acknowledged that neither his statement
in support of his asylum application nor the letters he submitted from his father and uncle
said anything about the police looking for him after he left China. A.R. 123-25. Wen
also acknowledged that those documents did not mention anything about Wen being hit

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when he reported to police on Mondays. Id. Wen stated that he also practiced Falun
Gong at his home in New Jersey and that his roommate was aware of his practice. A.R.
125-26. His roommate took the submitted picture of Wen practicing Falun Gong in
Chinatown. A.R. 128. Wen acknowledged that he had not submitted a letter from his
roommate attesting to his practice, as his roommate, who lacks immigration status, was
afraid to write one. A.R. 126. Wen stated that he did not know the names of the people
he practiced Falun Gong with in Chinatown, and that despite the fact he had been
practicing once a week since April 2005, he had made no friends among them. A.R. 127-
28. Wen acknowledged that when he was arrested at the U.S. border, he told the agents
he was afraid of returning to China because he had been smuggled out, but did not
mention his Falun Gong practice. A.R. 129-31.
The IJ found Wen’s testimony not credible and also found that Wen failed to
provide adequate corroborating evidence to support his application. Specifically, the IJ
faulted Wen for failing to provide a letter or affidavit from his roommate in the United
States who was aware of his Falun Gong practice. The IJ also noted that Wen could have
tried to get corroboration from the owner of the house where he was arrested. The IJ
based his adverse credibility finding on “significant omissions,” namely, the fact that
neither his father’s letter nor his asylum application said anything about Wen being
harmed when he reported to police following his detention, nor about police looking for
him. The IJ also took notice that Wen had failed to mention to border officials that he

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feared returning to China because of his Falun Gong practice. Wen appealed to the BIA
which adopted and affirmed the IJ’s decision.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s
determinations if they are supported by reasonable, substantial and probative evidence on
the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.
2008). Under the substantial evidence standard, “the BIA’s finding must be upheld
unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v.
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992)). Where the BIA substantially adopts the findings of the IJ, we
review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d
215, 222 (3d Cir. 2004).
To be granted asylum, Wen must show that he is “unable or unwilling to 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); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for
withholding of removal, Wen must demonstrate that “there is a greater-than-fifty-percent
chance of persecution” in China based on one of these protected grounds. Senathirajah
v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(A), (C). For
relief under the CAT, Wen must demonstrate that it is more likely than not that he would
be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).

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The BIA’s finding that Wen’s testimony was not credible is supported by
substantial evidence. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006) (an
adverse credibility determination is appropriately based on inconsistent statements and
contradictory evidence). The BIA, in upholding the IJ’s credibility determination, relied
in part on inconsistencies between Wen’s initial interview with an immigration officer
and his testimony before the IJ. In that statement, Wen told the immigration officer that
he was afraid of returning to China because he had been smuggled out, but did not
mention his Falun Gong practice. While we have counseled against placing too much
weight on a petitioner’s interview with immigration authorities at the point of entry, see
He Chun Chen, 376 F.3d at 223-24, Wen’s statement does not appear to have the type of
defects which make such statements unreliable. See Balasubramanrim v. I.N.S., 143 F.3d
157, 163 (3d Cir. 1998) (airport statement unreliable where immigrant did not have
translator and the interview was not accurately recorded). In any event, the IJ pointed to
other reasons for finding Wen’s testimony incredible, including omissions about what
happened to him when he reported to the police and whether police were looking for him.
Therefore, there is substantial evidence to support the IJ’s adverse credibility
determination.
The IJ and the BIA also faulted Wen for failing to provide corroborating evidence
to support his testimony. The BIA’s rule regarding corroborating evidence contemplates
a three-part inquiry: “1) identification of the facts for which it is reasonable to expect

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The REAL ID Act of 2005, which applies here since Wen filed his application after1
May 11, 2005, instructs courts to defer to the trier of fact’s determination on
corroborating evidence. Chukwu v. Att’y Gen., 484 F.3d 185, 192 (3d Cir. 2007). The
REAL ID Act, however, does not change our rules regarding the IJ’s duty to develop the
applicant’s testimony in accordance with the Abdulai steps. Id.
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corroboration; 2) an inquiry as to whether the applicant has provided information
corroborating the relevant facts; and, if [he] has not, 3) an analysis of whether the
applicant has adequately explained [his] failure to do so.” Abdulai v. Ashcroft, 239 F.3d
542, 554 (3d Cir. 2001) (citation and quotation omitted). Here, the IJ found it significant1
that Wen failed to provide a statement corroborating his practice of Falun Gong from his
roommate. Although Wen’s roommate may have been afraid to appear at the hearing in
person, it was not unreasonable for the IJ and the BIA to expect Wen to provide a letter or
affidavit from his roommate or from someone else in the United States who was aware of
Wen’s Falun Gong practice here. Therefore, substantial evidence supports the IJ and the
BIA’s finding that Wen failed to provide sufficient corroborating evidence to support his
testimony.
Because Wen cannot satisfy the standard for asylum, he cannot satisfy the higher
burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.
1991). Nor does the record show that Wen would likely be tortured by or with the
acquiescence of a Chinese official. Therefore, he is not eligible for protection under the
CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc). For the
foregoing reasons, we will deny the petition for review.

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