Jing Chen v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 14-14318
Non-Argument Calendar
Agency No. A201-268-889
JING CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the
Board of Immigration Appeals
(June 26, 2015)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Jing Chen, a native and citizen of China, seeks review of the Board of
Immigration Appeals ("BIA") order dismissing her appeal of the Immigration
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Judge's (“IJ”) decision denying her applications for asylum, withholding
of removal, and relief under the U nited Nations Convention Against
Torture ("CAT").
Chen entered the United States at an unknown place on an unknown date,
without admission or parole. On September 21, 2011, she applied for asylum,
withholding of removal, and CAT relief based on persecution for her political
opinion and membership in a particular social group. In the statement she attached
to her application, Chen stated the following: She was born on August 17, 1989;
worked at the Huang Jin Hotel ; formed a romantic relationship with a co-worker,
Zhilong Huang; married him in March 2009 (illegally because she had not reached
age 20); discovered she was pregnant in May 2009; and in July 2009, when her
pregnancy became obvious, quit her job and moved in with her parents. On
August 9, 2009, Family Planning Officers ("FPO") went to her parents' home, told
her they knew she was pregnant and unmarried, took her to hospital and forced her
to undergo an abortion. Two days later, FPO officers ordered her to appear for
pregnancy tests and family planning education every four months . When she
refused to appear for the November 2009 appointment, FPO officers went to the
Huang Jin Hotel, where Chen had retu rned to work followi ng her abortion , and
told the hotel manager that if Huang and Chen continued to work there, the FPO
would have the police check out the hotel frequently. To avoid that, the manager
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fired both Huang and Chen. The next day, FPO officers went to Chen's parents'
home, seized Chen and took her to the FPO office, where they forced her to submit
to an ultrasound procedure to determine if she was pregnant. The officers then
reprimanded her and ordered her to pay a fine of 500 renminbi ("RMB"). Chen
fled China because she was afraid of the FPO and could not stand the pregnancy
tests and the family planning education. She claimed that if forced to return to
China, the FPO would persecute her, monitor her behavior , and limit her ability to
have children.
Chen supported her asylu m application with her birth certificate and a
government issued identification, both bearing an August 17, 1989, birth date; a
hospital record showing that she had an abortion during the week of August l0,
2009; a receipt indicati ng that she paid a 500 RMB fine on November 17, 2009,
due to a delayed gynecological examination; and a document issued by Huang Jin
Hotel stating that it fired Chen on November 16, 2009, "because she was pregnant
prior to marriage and had [an] abortion" and because she was fined by the FPO,
thus "caus[ing] a bad in fluence in [the] hotel"; and written statements by Chen's
father and Huang corroborating the essence of her statement. Chen also attached
excerpts from the 2008, 2009, and 20 I 0 Country Reports on human rights practices
in China and a number of news stories about China's one-child policy.
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Chen was served with a Notice to Appear on October 26, 2011, charging her
with removability for being present in the United States without having been
admitted or paroled. She admitted removability. An I J considered the merits of
Chen's application at hearings held on November 27, 2012, and June 3, 2013.
Chen testified at length. 1 She essentially repeated, albeit in more detail, what she
said in the statement appended to her asylum application. For example, she
expanded on what occurred after she missed the pregnancy examination scheduled
for November 15, 2009. She said that three FPO officers came to the Huang Jin
Hotel, informed her that she had missed her scheduled pregnancy test and family
planning class, and attempted to take her to the local FPO for the test. When the
officers attempted to take her there, Huang intervened and the officers began to
beat him. Several co-workers entered the scene and the officers, realizing they
were outnu mbered, stopped. On November 17, 2009, seven FPO of ficers came to
her parents' home and took her to the FPO where she underwent an ultrasound
exam to determine if she was pregnant. The female officer who administered the
test insulted her and slapped her on the face, and the FPO fined her 500 RMB.
Beginning in March 20 l0, she kept the subsequent FPO appointments, which were
scheduled every four months. Each time she was scolded, insulted and fined 500
RMB.
1 Chen testified through a translator.
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At the November 27, 2012, heari ng, Chen was questioned extensivel y about
her age. She said that in China, a person's legal age and 44
factual" age were
different. The legal age is one year younger than the factual age. For example, the
government would consider her to be 20 when she was 21. Asked if the
government would consider her to be 20 on August 17, 2009, when she had the
abortion, she responded: "Back then they thought I wasn't old enough," meaning
not yet 20. She would be considered 20 "after the new year." Chen said that in
China, she would have been considered 20 in February 2011.
Chen testified that she was pregnant and that if returned to China, even to
another province, she would be forced to undergo an abortion because she was not
married to the father of her expected child, a man without lawful immigration
status, whom she met in New York, and the FPO would find her. After asking
Chen to explain why she had not married the man, the IJ returned to the age issue.
In response to one question, Chen agreed that the Chinese government would
consider her two years old on her first birthday . Then she said that she was not old
enough, 20, to marry in March 2009. When the IJ observed that since the
government would have treated her as two years old on her first birthday, she
would have been 20 when she married, Chen said that "the family planning office
would recognize the U.S. way of calculating ." Before the November 27 hearing
adjourned, the IJ announced that he wanted fu rther proof of Chen's age in China in
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2009, and a definitive explanation of whether the Chinese govern ment uses a
person 's "factual age" and thus considers a person one year old at birth.
Chen gave birth to a girl following the November 27 hearing, and provided
the court with a copy of the birth certificate. She also provided correspondence
from the Chinese government confirming that a woman must be 20 to marry and
that a person's age is calculated from the date of birth, such that a person is one
year old on that date.
At the June 3, 2013, hearing, Chen was questioned further about the age
issue and the number of fines imposed when she appeared for pregnancy tests. She
was unable to provide receipts for the fines imposed in March and July 2010
because her parents had misplaced them. When asked why she didn't mention the
March fine or the July appointment for a pregnancy test in the written statement
given with her asylum application, Chen replied that she did mention that she was
required "to go back every four months [but] didn't write down the details." In
response to her attorney's questioning, Chen testified that she was 1 9 on August
9, 2009, the day she was forced to have the abortion. Asked why she was so
confused in answering questions about her age, she said that her math was "not
very good" and that she "calculated wrong."
The IJ found that Chen 's testimony was not credible because there were
numerous inconsistencies and omissions in her testimony and her written
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statement, and because she was unresponsive in responding to questions put to her.
For example, the IJ found at least one inconsistency regarding her age when she
had an abortion in August 2009. Her age was important because Chen alleged that
her past persecution was based on the government's belief that she had not reached
age 20 when she married Huang. When questioned by her attorney, Chen said that
she was 19 at the time; on cross-examination, she said that she was not 20 at the
time of her birthday five months later, in August 2009. Later, she said that she was
18 on that birthday because the government did not consider her "factual age." The
IJ also found inconsistencies in Chen's testimony about what took place when she
went to the FPO office for pregnancy tests and family planning. She initially
testified that she had two forced examinations, one in November 2009 and another
in March 20 I 0. Later, she stated that she had three forced examinations. The IJ
found Chen's testimony regarding the fines the FPO i mposed to be inconsistent as
well. Chen testified that she was fined on three occasions, while the statement
appended to her asylu m application indicated that she was fined only once.
The IJ concluded that the evidence she proffered to corroborate her
testimony was insufficient to rehabilitate her credibility. The I J therefore denied
her application for asylum, wi thholding of removal, and CAT relief and ordered
her removal to China. Chen appealed the lJ 's decision, contending that the record
did not support IJ's adverse credibility finding. The BIA disagreed, finding no
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clear error in the IJ's determination that Chen's credibility was u ndermined by her
inconsistent testimony regarding her age. The BIA also found inconsistencies
between the statement Chen filed with her asylum application and her testimony
regarding the details of her allegedly forced abortion and the number of fines the
FPO imposed. Having reached these findings and conclusions, the BIA dismissed
Chen's appeal. Chen then petitioned this court for review.
We review the BIA's decision as the final judgment, unless the BIA has
expressly adopted the IJ's decision s its own. Kazemzadeh v. U.S. Att' y Gen., 577
F.3d 1341, 1350 ( l lth Cir. 2009). Where the BIA has explicitly agreed with
some of the IJ's findings, we review those findings as if made by both the BIA
and the IJ. Id.
We review factual findings, including credibility determinations, under the
substantial-evidence test. Chen v. U.S. Att 'y Gen., 463 F.3d 1228, 1230-3l
( 1 1 t h C i r . 2 0 0 6 ) . Under that test, we affirm the BIA's factual
findings if they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001) (quotation marks omitted). We consider
such evidence, and the inferences it permissibly yields, in the light most
favorable to the Attorney General. Adefemi v. Ashcroft, 386 F.3d 1022, 1027
(11th Cir. 2004) (en banc). In sum, we disregard a finding of fact only if the
record compels us to do so. C h e n , 463 F.3d at 1230-3l .
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The Attorney General or Secretary of Homeland Security has the discretion
to grant asylu m to an alien who meets the definition of a refugee. 8 U.S.C.
§ l l 58(b)(l )(A). The INA defines a refugee as:
any person who is outside of any country of such person's nationality
. . . and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that country
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.
Id. at § 1 101(a)(42)(A). An alien may establish her eligibility for asylu m by
showing that she was persecuted in the past in her home country on a protected
ground; this gives rise to a rebuttable presumption of a well-founded fear of future
persecution. Sepulveda v. U.S. Att' y Gen., 401 F.3d 1226, 1230-31 (11th Cir.
2005).
An alien is entitled to withholding of removal under the INA if she can show
that her life or freedom would be threatened on accou nt of her race, religion,
nationality, membership in a particular social group, or political opinion if she is
returned to her country. 8 U.S.C. § 1231(b)(3)(A). "The alien bears the burden of
demonstrating that it is more likely than not that she will be persecuted . . . upon
bei ng returned to her country." Sepulveda , 40 I F.3d at 1232 (quotation marks
omitted). "This is a more stringent standard than for asyl u m." Id. To obtai n CAT
relief, an alien must show that it is more likely than not that she will be tortured if
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removed to her country of origin. 8 C.F.R. §§ 208.16(c)(2), 208.l 7(a),
208.18(a)( 1 ).
Adverse credibility determinations should be made in consideration of the
totality of the circumstances and may be based on: the demeanor, candor, or
responsiveness of the applicant for asylu m; the inherent plausibility of her account;
the consistency between the applicant's written and oral statements; the internal
consistency of each statement; and the consistency of the statements with other
evidence without regard to whether an inconsistency, falsehood, or inaccuracy
goes to the heart of the applicant's application . 8 U.S.C. § 1158(b)(l)(B)(iii). If
the IJ makes an adverse credibility finding, the burden shifts to the alien to show
that the credibility decision was not supported by "specific, cogent reasons" or was
not based on substantial evidence. Forgue v. U.S. Att' y Gen., 401 F.3d 1282, 1287
(1 1th Cir. 2005). A merely tenable explanation for inconsistencies is not sufficient
to overturn an adverse credibility finding. Chen, 463 F.3d at 1233.
Although some of the BIA's reasons for the adverse credibility finding were
specific and cogent, the record as a whole compels reversal. First, Chen's
undisputed documentary evidence resolved any inconsistencies as to whether or
not she was of legal age to marry when she claimed that the FPO forced her to
undergo an abortion. Second, the supporting documentation compellingly
corroborated her core claim for relief-that she was persecuted by being forced to
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undergo an abortion. Finally, the record when viewed as a whole demonstrates
that the imperfections in Chen's testi mony were the result of confusion and
miscommunication and the fact that she was testifying through an interpreter, not
the result of any attempt to embellish her testimony or prevaricate.
PETITION GRANTED. This case is REMANDED to the BIA for further
proceedings consistent with this decision.
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