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Chen v. Gonzales

December 29, 2005; as amended December 30, 2005

XIA YUE CHEN, PETITIONER
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES RESPONDENT



On Petition for Review from the Board of Immigration Appeals. Agency No. A78-746-838.

The opinion of the court was delivered by: Irenas, Senior United States District Judge

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a): January 13, 2005

Before: SCIRICA,*fn1 Chief Circuit Judge,ROTH, Circuit Judge, and IRENAS,*fn2 Senior District Judge.

OPINION

Petitioner Yue Xia Chen ("Chen") petitions for review of the decision of the Board of Immigration Appeals ("BIA") denying her application for asylum, withholding of removal, and protection under the Convention Against Torture. The focus of Chen's argument is that she was subject to a forced abortion which made her eligible for refugee status in this country. The principal issue on this Petition for Review is whether the Immigration Judge ("IJ") properly determined that her testimony on this issue lacked credibility and was insufficiently corroborated. Although we find that the IJ did not make the separate credibility finding required by In re S-M -J-, 21 I. & N. Dec. 722, Interim Decision 3303 (BIA 1997), 1997 WL 80984, his decision to deny the Petition for Review based on a determination that Chen did not meet her burden of proof by adequately corroborating her story was a proper application of the principles set forth in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001).

I.

Chen, a citizen of the People's Republic of China, entered the United States at St. John in the United States Virgin Islands without inspection on or about October 20, 2001. The INS issued a Notice to Appear, alleging that Chen was inadmissible because she was present in the United States without being admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Such a person is removable under 8 U.S.C. § 1227(a)(1). Chen conceded her removability, but filed an application for asylum under 8 U.S.C. § 1158 and withholding of removal under 8 U.S.C. § 1231(b)(3), and sought protection under the Convention Against Torture.*fn3 Following a hearing, an Immigration Judge ("IJ") denied her application on October 1, 2002. Chen appealed the IJ's decision to the BIA, which affirmed the IJ's decision without opinion on December 16, 2003. This Petition for Review followed.

II.

To qualify for asylum, Chen must demonstrate that she meets the statutory definition of "refugee" under the Immigration and Nationality Act, which states generally that a refugee is:

[A]ny person who is outside 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 . . . .

8 U.S.C. § 1101(a)(42). This definition has been amended to specifically address Congress' concern with coercive family planning practices, by providing, inter alia, that anyone who has been "forced to abort a pregnancy . . . shall be deemed to have been persecuted on account of political opinion." Id.

Withholding of removal does not rely on the perspective of the applicant's well founded fear, but is instead appropriate only if the Attorney General determines that there is a "clear probability" that the alien's life or freedom would be threatened upon her removal to a particular country. INS v. Stevic, 467 U.S. 407, 412 (1984); see also 8 U.S.C. § 1231(b)(3)(A).

The Convention Against Torture has been implemented by regulations codified at 8 C.F.R. §§ 208.16 and 208.18 which require withholding of removal for an alien who can show that it is more likely than not that she will be tortured by the government or with its acquiescence upon removal to a particular country. The regulations define torture as "an extreme form of cruel and inhuman treatment," but not "lesser forms of cruel, inhuman or degrading treatment or punishment not constituting torture." 8 C.F.R. § 208.18; see also 8 ...


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