Xiao Min Chen v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4865
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XIAO MIN CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A099-936-247)
Immigration Judge: Honorable Henry Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 4, 2010
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: February 2, 2010)
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OPINION
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PER CURIAM.
Petitioner Xiao Min Chen, a citizen of China, entered the United States
without inspection in 2006. He was placed in removal proceedings in 2007, during which

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he conceded removability and sought asylum, withholding of removal, and relief under
the Convention Against Torture. The IJ denied relief and the BIA dismissed his appeal.
Chen then filed a petition for review.
I.
In support of his application for relief, Chen testified that he and his mother
began practicing Falun Gong in 2006 at the urging of his maternal uncle. They believed
Falun Gong would help Chen’s mother, who suffered poor health following a forced
sterilization procedure. Chen, his mother, and his uncle joined an underground Falun
Gong group, led by Master Lin. Chen testified that they practiced in secret at Master
Lin’s home; he did not allege that they practiced Falun Gong anyplace else.
Chen testified that he derived many benefits from practicing Falun Gong
and wanted to help spread knowledge of the practice. Chen, who was the sole owner of
an electronics store, testified that he agreed to illegally keep 3000 Falun Gong
instructional videos in his store until fellow practitioners could distribute them. He
alleged that in August 2006, while he was visiting a friend, police raided the store,
confiscated the illegal videos, and sealed off the store. Chen’s maternal uncle witnessed
the raid and called Chen on his mobile phone to alert him. Chen contacted his mother,
who told him to go into hiding.
Chen testified that his father, who was minding the store while Chen was
away, was arrested during the raid and interrogated for several hours. Chen testified that

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when the police realized that he, not his father, was the sole owner of the store, they
released the father and began looking for Chen. Police allegedly searched both of the
family’s homes and questioned his mother. However, they found no evidence related to
Falun Gong, and did not discover that his mother or uncle practiced Falun Gong. Chen
testified that since the incident, his mother and uncle still practice Falun Gong and have
not been discovered by police.
Chen testified that he went into hiding and ultimately fled to the United
States, where he continues to practice Falun Gong. He also testified that following the
closure of his store, he instructed his mother to sell his remaining inventory, which she
did, after which new people occupied the store and turned it into a fruit stand. However,
Chen presented no documentation that the store was ever closed or that the inventory was
sold. Nor did he produce any evidence that his store changed hands, although he testified
that he could ask his parents to send pictures of the store. Moreover, although Chen
submitted letters from his parents and maternal uncle in support of his application, they
contained no information about the closing of his store, liquidation of the inventory, or
conversion of the store.
The IJ denied relief, finding Chen to be incredible. The IJ also noted that
Chen failed to present any corroborative evidence that his store was shut down and
converted into another establishment. The BIA dismissed Chen’s appeal, upholding the
IJ’s adverse credibility determination and corroboration analysis and reasoning that, even

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if Chen were credible, he still failed to demonstrate past persecution or a well-founded
fear of future persecution.
II.
We have jurisdiction over Chen’s petition for review under 8 U.S.C.
§ 1252(a). Because the BIA issued its own opinion, we review its decision rather than
that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we also
look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s
reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review
agency factual determinations for substantial evidence, and will uphold such
determinations “unless the evidence not only supports a contrary conclusion, but compels
it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005) (internal citations omitted).
Because Chen is proceeding pro se, we construe his pleadings liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972).
Because we agree with the BIA that Chen unreasonably failed to
corroborate his claim that Chinese officials raided and shut down his store, forcing the
sale of his inventory, we need not address the Board’s other bases for denying relief. To
qualify for asylum, an applicant must demonstrate that he has suffered past persecution or
holds a well-founded fear of future persecution based on a protected ground. See 8
U.S.C. § 1101(a)(42)(A); Leia v. Ashcroft, 393 F.3d 427, 432-33 (3d Cir. 2005).
“Moreover, an applicant for asylum must provide reliable evidence to corroborate

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testimony when it is reasonable to expect corroborating evidence and there is no
satisfactory explanation for its absence.” Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d
Cir. 2009) (citing Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006). A failure to
corroborate may be relied on to deny relief when “(1) the IJ identifies facts for which it is
reasonable to expect the applicant to produce corroboration, (2) the applicant fails to
corroborate, and (3) the applicant fails to adequately explain that failure.” Chukwu v.
Att’y Gen., 484 F.3d 185, 191-92 (3d Cir. 2007) (citing Abdulai v. Ashcroft, 239 F.3d
542, 554 (3d Cir. 2001)).
Here, the IJ noted that Chen presented no evidence to show that his store
was closed, that the inventory had to be sold, or that his shop was turned into a grocery.
Chen explained that receipts were not given for the items his parents sold and that there
was no documentation that the police seized his store. Nevertheless, we agree that Chen
could have obtained some corroborative evidence to present at the removal hearing.
Indeed, he testified that he could have his parents send pictures of the converted store. In
addition, the IJ noted that Chen’s supporting letters from his parents and uncle did not
mention anything about having to close his store and sell the merchandise. We agree with
the Agency that Chen’s explanation – that his parents did not discuss the store because
they probably deemed it unimportant – was inadequate to overcome the need for
corroboration.
Because Chen failed to provide adequate corroboration, we agree that he

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failed to demonstrate his eligibility for asylum. Specifically, Chen did not establish past
persecution because he failed to provide sufficient corroborative evidence that Chinese
officials raided his store and shut down his business because he stored Falun Gong
videos. In light of his failure to present such evidence, we agree, too, that Chen did not
demonstrate a well-founded fear that the Chinese government will take action against him
for his alleged participation in the distribution of Falun Gong videos.
Because Chen’s failure to corroborate rendered him ineligible for asylum,
we also agree that he was unable to meet the higher standards applicable to applications
for withholding of removal and CAT protection. See Sioe Tjen Wong v. Att’y Gen., 539
F.3d 225, 236 (3d Cir. 2008) (withholding of removal); Kamara v. Att’y Gen., 420 F.3d
202, 212-13 (3d Cir. 2005) (CAT relief).
Accordingly, we will deny the petition for review. Chen’s motion to waive
oral argument is denied as moot.

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