Hailei Bu, et al v. Atty Gen USA, et al

Filing

MANDATE ISSUED, filed.

Hailei Bu, et al v. Atty Gen USA, et al

Doc. 0 Att. 1

Case: 09-4397

Document: 003110280788

Page: 1

Date Filed: 09/13/2010

IMG-260

N O T PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-4397 ___________ H A IL E I BU; DI JEN CHIEN, Petitioners v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y Nos. A097-942-215; A094-048-592) I m m ig r a tio n Judge: Eugene Pugliese ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) J u ly 22, 2010 B e f o re : SCIRICA, SMITH AND WEIS, Circuit Judges O p in io n filed: July 23, 2010 ___________ O P IN IO N ___________

P E R CURIAM. P e titio n e r Hailei Bu and his wife Di Jen Chien petition for review of a d e c is io n by the Board of Immigration Appeals ("BIA") to dismiss their appeal of an im m ig ra tio n judge's decision denying their applications for asylum, withholding of re m o v a l, and protection under the Convention Against Torture ("CAT"). For the

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Case: 09-4397

Document: 003110280788

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Date Filed: 09/13/2010

f o llo w in g reasons, we will deny the petition for review. I. B u is a native and citizen of China.1 He entered the United States in 1995 o n a visitor's visa. In 2006, he was served a Notice to Appear and charged under Section 2 3 7 (a )( 1 )( B ) of the Immigration and Nationality Act ("INA") with overstaying his visa. Bu filed an application for asylum, withholding of removal, and protection under the C A T . The basis of Bu's asylum claim was that he was persecuted as a member of the C h in e se Democratic Party ("CDP") and feared harm by the Chinese government if he w e re to return. Specifically, Bu testified that he was expelled from business school in M a y 1994 because he had participated in prohibited student activities related to the c o m m e m o ra tio n of the 1989 Tiananmen Square incident. AR 130-31. He testified that in c o n n e ctio n with those events he was summoned by police, interrogated, and struck in the f a c e when he refused to provide information. AR 131. After this incident Bu returned to h is hometown where he was arrested in October 1994 while walking down the street. Id. He was taken to a detention center, put into a small room, and his hands were tied behind h is back. Bu testified that the police wrapped a rope around his chest and that he was h u n g from a pipe on the ceiling and beaten severely. AR 131-32. The police demanded to know the names of the people he accompanied to Tiananmen Square, and continued to

Petitioner Chien is a native and citizen of Taiwan. Like Bu, she was also charged w ith being subject to removal pursuant to INA § 237 (a)(a)(B). Chien has not filed an in d e p e n d e n t asylum application and is riding on her husband's. 2

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to rtu re Bu until he was unable to bear it any longer and confessed the names. He was th e n released. An immigration judge denied Bu's applications following a merits hearing in 2009. The IJ found that Bu's asylum application was untimely and that he did not e sta b lis h extraordinary circumstances to excuse his late filing. Further, the IJ found that B u would not have been eligible for relief in any case because his testimony lacked c r e d ib i lity. Bu appealed the decision to the BIA. The BIA dismissed the appeal because it found no clear error in the IJ's adverse credibility determination. The BIA did not re a ch the question of whether the IJ properly ruled that the asylum application was u n tim e ly. II. W e have jurisdiction to review final orders of removal. 8 U.S.C. § 1 2 5 2 (a )(1 ). We review adverse credibility determinations for substantial evidence. Chen v . Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Because the BIA substantially relied upon th e IJ's adverse credibility determination, we review both the BIA's and the IJ's decisions w ith regard to the credibility determination. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d C ir. 2004). We will affirm the adverse credibility finding if it is supported by " re a so n a b le , substantial, and probative evidence on the record considered as a whole." Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (citations omitted). We will uphold th e adverse credibility determination unless "any reasonable adjudicator would be

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co m p elled to conclude to the contrary." Kaita v. Att'y Gen., 522 F.3d 288, 296 (3d Cir. 2 0 0 8 ) (citing Gao, 299 F.3d at 272). III. In denying relief, the IJ found Bu to be incredible because he embellished h is claims and added significant details concerning his alleged torture at the hands of C h in e se officials ­ events that go to the heart of his claim for asylum.2 Bu arrived in the U n ited States in 1995, but did not file an asylum application until 2006, allegedly due to th e unscrupulousness of the multiple attorneys and immigration service centers he relied o n for assistance. His first statement, which he claims he submitted with assistance from th e chairman of the Chinese Democratic Party in New York (the "Chairman"), described h is expulsion from school due to his political activities, but did not describe any physical a b u se by police. AR 297-98. Nor did Bu mention being arrested or beaten by police d u rin g his interview with an asylum officer in July 2006. AR 311-13. Bu did not d e sc rib e the incident when he was struck in the face by police until his second written s ta te m e n t, AR 243, and did not refer to his 1994 arrest and beating until his third written

Because Bu filed his asylum application after the enactment of the REAL ID Act, th e inconsistencies, inaccuracies, or falsehoods upon which an adverse credibility finding is based need not go to the heart of his claim. See Lin v. Att'y Gen., 543 F.3d 114, 119 n .5 (3d Cir. 2008). Rather, the REAL ID Act permits credibility determinations to be b a se d on observations of Bu's demeanor, the plausibility of his story, and on the c o n s is te n c y of his statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuniya v. Att'y Gen., 4 6 3 F. 3d 316, 322 n.7 (3d Cir. 2006).

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statem en t, which was prepared in September 2008. AR 199-200. The IJ found that Bu's tale appeared to "get larger and larger and more ornate" over time, and he did not credit B u 's explanation that he had not included these facts in his original statement because he w a s embarrassed about his injuries and had been counseled by the Chairman that he need n o t mention them if it made him uncomfortable. AR 36, 38-39. We conclude that

the IJ's finding of adverse credibility, and the BIA's affirming of that finding, are s u p p o rte d by substantial evidence. The IJ provided specific and cogent reasons for c o n c lu d in g that Bu lacked credibility, in particular, Bu's increasingly ornate testimony re g a rd in g the two most important episodes relating to his allegations of persecution. The B IA agreed with the IJ that Bu's explanation for the omissions ­ that he had relied on p o o r advice from the Chairman ­ was not persuasive. Although Bu argues that the IJ b a s e d this conclusion on improper speculation about Bu's level of "sophistication," we fin d no clear error in the decision not to credit Bu's proposed explanations. AR 39. In s u m , the evidence does not compel us to conclude that Bu was credible. See Chen, 376 F .3 d at 222; Xie, 359 F.3d at 243. Because the BIA affirmed the IJ's decision solely on th e basis of credibility, we need not address Bu's argument that the IJ erred in finding that th e re were no grounds to excuse the untimely filing of his asylum application. IV . F o r the foregoing reasons, we will deny the petition for review.

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