Zhao Chen v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1596

ZHAO LIN CHEN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: April 9, 2013 Decided: July 2, 2013

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Petition denied by unpublished per curiam opinion. Judge Davis
authored a dissenting opinion.

Adedayo O Idowu, LAW OFFICES OF ADEDAYO O IDOWU, PLLC, New York,
New York, for Petitioner. Stuart F. Delery, Acting Assistant
Attorney General, Shelley R. Goad, Assistant Director, Jennifer
R. Khouri, Trial Attorney, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Zhao Lin Chen, a native and citizen of the People’s

Republic of China, petitions for review of an order of the Board

of Immigration Appeals (“the Board”) dismissing his appeal from

the decision of the immigration judge (“IJ”) denying his

applications for asylum, withholding of removal under the

Immigration and Naturalization Act (“INA”), and withholding of

removal under the Convention Against Torture (“CAT”). We deny

the petition for review because we conclude that substantial

evidence supports the Board’s decision.

I

In late 2008, the Department of Homeland Security (“DHS”)

issued a Notice to Appear to Chen charging him with removability

as an alien having entered the United States at an unknown time

and place without inspection. Chen conceded removability, but

sought relief in the form of asylum, withholding of removal, and

protection under the CAT.

In his application and during the proceedings before the

IJ, Chen testified to the following: He was born in 1983, is

not married, and does not have any children. In 2003, he broke

2
up with his girlfriend and became depressed. 1 Shortly

thereafter, a friend introduced him to Christianity, and Chen

began to attend church. The church was not in a fixed location

and congregants met in secret for fear of discovery,

“gather[ing] in [their] different members’ homes.” (J.A. 115.)

In May 2007, Chen was baptized.

Chen recounted that on the evening of November 4, 2007, he

and other congregants were meeting at his friend’s house when

police officers “rushed into [their] gathering place, tor[e] out

[their] Bible[s] and destroyed things at [his friend’s] home

arbitrarily.” (J.A. 309.) Chen and the other congregants were

taken to the police station and interrogated. Chen refused to

answer the officers’ questions and was “kicked and punched”

several times. 2 (J.A. 89.) After four days, Chen’s parents were

able to collect enough money to secure his release. Before

leaving the police station, Chen was required to sign a

1
Chen attached several supporting documents to his
application, including verification of identity, a notice from
his former employer in China indicating that he was terminated
from employment for participating in an underground church, a
certificate indicating he was a member of the Changle City
Christian Church, and a notice indicating that he had taken
courses at a church in New York City upon arriving in the United
States.
2
Chen testified that any remaining scars or other physical
marks from having been beaten and burned with a lit cigarette
had faded with time and were “not very noticeable now.” (J.A.
111.)

3
guarantee letter stating that he would not participate in

underground church activities in the future. When Chen’s

employer was notified that he was involved in an underground

church, and had been “disturbing social order,” Chen lost his

job for “tarnish[ing] the reputation of the company.” (J.A.

101.)

Based on the events of November 4, Chen decided to leave

China. His parents borrowed money from friends and relatives in

order to pay a snakehead a $75,000 fee to smuggle Chen into the

United States. 3 Chen testified that he feared that if he

returned to China he would be persecuted for his Christian

faith.

Chen indicated that since arriving in the United States in

January 2008, he had been working in Chinese restaurants, first

in New York and now in Virginia. He sends the money earned to

China to help pay off the debt his parents owe as a result of

borrowing money to pay the snakehead. Chen stated that he had

attended church in New York, but that he had not found a

Chinese-speaking church in Virginia and that he did not have a

vehicle to help him locate a church.

3
Chen stated that he did not borrow money from the
snakehead and did not owe the snakehead any money. Chen also
told the IJ that he made less than $100 a month while in China,
and that his father made the equivalent of $4 or $5 a day.

4
 Chen’s aunt testified in support of Chen’s application.

She stated that she met up with Chen after his arrival in New

York, and that Chen told her he had fled after being persecuted

for his faith. She was aware that Chen continued to practice

Christianity and attend church activities, having observed

religious pamphlets in his residence and photographs of him

participating in religious events.

In addition, Chen submitted an affidavit from his mother

stating that Chen had been arrested in China for being a

Christian. She stated that she was aware of his underground

church activities, had observed that he was thinner and bruised

after having been detained by the police in November 2007, and

that she and Chen’s father had secured his release by paying

money to the police. She also stated that she put some liquid

medicine on Chen’s body to treat his injuries from the

detention. Chen’s mother also corroborated that Chen had been

dismissed from his employment in China because of his

participation in the underground church.

Chen also submitted an affidavit from the friend who had

introduced him to Christianity and invited him to participate in

the church. The friend stated that Chen had been baptized in

May 2007, participated in church activities, and was present at

the home church meeting in November 2007 when police arrested

the congregants. The friend’s testimony echoed Chen’s with

5
respect to the police destroying items at the home, taking

Bibles from congregants, and detaining them at a police station.

The friend stated that he was detained for a month, at which

time he was also required to sign a guarantee stating that he

would not participate in underground church activities in the

future. The friend also stated that the Chinese government

still wanted to arrest Chen.

Lastly, Chen introduced the U.S. State Department’s 2009

International Religious Freedom Report for China, which referred

to the Chinese government’s sanctioning and close-monitoring of

underground, unauthorized churches. The report notes that in

some regions, police disrupt house meetings, detain congregants,

and interrogate individuals about their participation in home

churches.

The IJ denied Chen the relief requested. In recounting the

evidence summarized above, the IJ noted that Chen’s testimony

was “very general” and “gave very few details as to” his church

activities in China and the circumstances surrounding his

November 4 arrest, subsequent detention, and interrogation.

(J.A. 43, 46.) The IJ concluded, in sum, “that [Chen’s]

testimony itself was not specific and detailed, nor was the

corroborating evidence specific and detailed, as required under

the REAL ID Act, in the absence of the respondent’s testimony

being specific and detailed.” (J.A. 47.) “Accordingly,” the IJ

6
found that Chen “ha[d] not met his burden of proof to show that

whatever may have occurred to him was such as to have

constituted past persecution, or even to show that [Chen] has

some reasonable possibility of future persecution.” (J.A. 47.)

The IJ next observed that “the REAL ID Act also speaks to the

credibility of a respondent’s testimony,” and concluded that as

a whole, the “general nature” of Chen’s testimony and

documentation led to the conclusion that Chen was not credible.

(J.A. 47-48.) For these reasons the IJ found that Chen had not

met his burden of showing eligibility for asylum, or the more

substantial burden of demonstrating entitlement for withholding

of removal under the INA, and that Chen had not satisfied the

requirements for relief under the CAT.

Chen appealed that decision to the Board, arguing that the

IJ failed to provide an adequate explanation for the

determinations that Chen had failed to provide sufficiently

specific and detailed testimony, that he was not credible, and

that his corroborating evidence was not sufficient to

independently satisfy his burdens. The Board concluded that

substantial evidence supported the IJ’s decision and, in

particular, noted:

Contrary to [Chen’s] arguments on appeal, the [IJ],
before making his adverse credibility finding,
identified his particular concerns with the testimony
of the respondent and his witness as well as the
documentary evidence submitted below. Specifically

7
 the [IJ] provided particular examples of the general
nature and the missing details from the testimony of
both [Chen] and [his aunt]. He also described
specific problems with the vagueness of the
documentary evidence and identified missing
information before determining that [Chen] did not
independently establish his claim on the basis of the
corroborating evidence. The [IJ] appropriately made
his credibility determination based on the totality of
the circumstances and, specifically, on his
determination that neither the testimony nor the
corroborating evidence were specific and detailed.

(J.A. 3.) The Board observed that the IJ had “considered the

limited documentary evidence in conjunction with [Chen’s]

incredible testimony in determining that he had not met his

burden of proof.” (J.A. 4.) Because the Board concluded that

the IJ “correctly determined that the respondent had not met his

burden to demonstrate eligibility for asylum,” it also

recognized that Chen could not satisfy the more stringent

standard required for withholding for removal. (J.A. 4.) The

Board also held that Chen had failed to establish that it was

more likely than not that he would be tortured upon return to

China and therefore was ineligible for relief under the CAT.

Accordingly, the Board dismissed Chen’s appeal.

Chen filed a timely petition for review in this Court, and

we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).

II

8
 Our review of the Board’s decision is highly deferential,

affording broad—but not absolute—deference to the agency’s

disposition. See 8 U.S.C. § 1252(b)(4)(B)-(D); see also Haoua

v. Gonzales, 472 F.3d 227, 231 (4th Cir. 2007). We uphold the

denial of an asylum claim “unless such a denial is ‘manifestly

contrary to the law and an abuse of discretion.’” Zelaya v.

Holder, 668 F.3d 159, 165 (4th Cir. 2012) (quoting 8 U.S.C. §

1252(b)(4)(D)).

When the denial of asylum is based on the [Board’s]
conclusion that the applicant failed to meet his
evidentiary burden for establishing eligibility, then
we review for substantial evidence and must affirm a
determination of statutory ineligibility by the
[Board] unless the evidence presented was so
compelling that no reasonable factfinder could fail to
find eligibility for asylum.

Dankam v. Gonzales, 495 F.3d 113, 119 (4th Cir. 2007) (internal

quotation marks omitted).

A

The INA authorizes the Attorney General to confer asylum on

any refugee. See 8 U.S.C. § 1158(a). An applicant for asylum

bears the burden of proving that he holds refugee status, i.e.,

that he is “unable or unwilling to return to . . . [his] country

because of [past] persecution or a well-founded fear of [future]

persecution on account of,” inter alia, his religious beliefs.

8 U.S.C. §§ 1101(A)(42)(A), 1158(b)(1)(B)(1). An applicant who

9
has endured past persecution is entitled to a presumption of

having a well-founded fear of future persecution. 8 C.F.R. §

208.13(b)(1). The REAL ID Act of 2005 amended the INA, and

applies to Chen’s application. Under the REAL ID Act,

[t]he testimony of the applicant may be sufficient to
sustain the applicant’s burden without corroboration,
but only if the applicant satisfies the trier of fact
that the applicant’s testimony is credible, is
persuasive, and refers to specific facts sufficient to
demonstrate that the applicant is a refugee. In
determining whether the applicant has met the
applicant’s burden, the trier of fact may weigh the
credible testimony along with other evidence of
record. Where the trier of fact determines that the
applicant should provide evidence that corroborates
otherwise credible testimony, such evidence must be
provided unless the applicant does not have the
evidence and cannot reasonably obtain the evidence.

8 U.S.C. § 1158(b)(1)(B)(ii).

Chen attempted to satisfy his burden of proving eligibility

for asylum by showing that he had been subjected to past

persecution on account of his Christian faith due to his

November 2007 detention. Chen contends the Board’s decision is

not supported by substantial evidence because it was “based on

speculation and conjecture rather than specific and cogent

reasoning” as to what relevant information Chen failed to

provide to the IJ. (Opening Br. 11.) Chen asserts that if the

Board had paid closer attention to his testimony and

corroborating evidence, giving it “sufficient consideration,”

the Board would have held in Chen’s favor. (Id. at 11, 14) And

10
he claims that neither the IJ nor the Board “cite[d] any

examples of Petitioner’s testimony which were supposed to be too

general.” (Id. at 14.) Chen maintains that because he

established past persecution, he is entitled to the presumption

of having a well-founded fear of future persecution and thus is

eligible for asylum.

We have reviewed the Board’s decision and conclude that

substantial evidence supports its determination that Chen failed

to establish eligibility for asylum. As noted, under 8 U.S.C. §

1158(b)(1)(B)(ii), the IJ must assess, inter alia, whether an

applicant’s testimony “refers to specific facts sufficient to

demonstrate that the applicant is a refugee” and whether that

testimony is “credible.” Under 8 U.S.C. § 1158(b)(1)(B)(iii),

an IJ may make an adverse credibility determination after

considering “the totality of the circumstances, and all relevant

factors.” While lack of detail, vagueness, and the like are not

specifically delineated in the credibility determination

provision, they clearly constitute other “relevant factors.”

See Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010)

(“[E]ven though lack of detail is not expressly listed as a

factor that may be considered [under the REAL ID Act’s

credibility determination provision at 8 U.S.C. §

1158(b)(1)(B)(iii)], the pre-REAL ID Act practice of looking to

the level of detail of the claimant’s testimony to assess

11
credibility, see Singh-Kaur v. INS, 183 F.3d 1147, 1153 (9th

Cir. 1999), remains viable under the REAL ID Act as it is a

‘relevant factor.’”). 4 Under these provisions, either basis—

specificity or credibility—would be independently adequate

grounds for determining that an applicant’s testimony fails to

satisfy his burden of proving eligibility for asylum. A lack of

detail and generalized testimony can be both a factor in

assessing whether an applicant has satisfied his or her overall

burden of proof and a factor in considering the credibility of

an applicant’s testimony. While the two analyses are distinct,

they do sometimes overlap.

In this case, the IJ’s adverse credibility determination

and the Board’s affirmance thereof flowed directly from their

overarching concerns about the lack of detail and the general,

vague nature of Chen’s testimony. Contrary to Chen’s arguments,

the Board offered specific reasons for its determination, citing

to the IJ’s “particular concerns” and “specific examples” of how

Chen’s evidence was too generalized, lacking detail, and

otherwise insufficient to provide credible evidence sufficient

to carry his burden of proof. See J.A. 3. The IJ thoroughly

4
Other courts have also recognized that lack of detail,
vagueness, and omissions are salient to an IJ’s credibility
determination. E.g., Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th
Cir. 2004); Elzour v. Ashcroft, 378 F.3d 1143, 1152 (10th Cir.
2004); Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir. 2004).

12
reviewed the evidence Chen did present in support of his case,

noted specific examples of why that evidence fell short of

satisfying his burden, and the Board conducted its own review of

that decision and the record before dismissing Chen’s appeal.

In so doing, they offered “specific, cogent reason[s]” for the

determination, which was not “based on speculation, conjecture,

or an otherwise unsupported personal opinion.” See Zuh v.

Mukasey, 547 F.3d 504, 507 (4th Cir. 2008) (internal quotation

marks omitted). Rather, the Board’s denial of Chen’s claim was

based on the totality of the record and Chen’s failure to prove

eligibility for asylum, and specifically that he had been

persecuted—as that term is understood in the context of asylum—

in China. 5 Because Chen’s corroborating evidence did not

overcome this factual deficiency, the Board appropriately

5
As we are often required to observe, “[p]ersecution is an
extreme concept that does not include every sort of treatment
that our society regards as offensive.” Li v. Gonzales, 405
F.3d 171, 177 (4th Cir. 2005) (internal quotation marks
omitted); see also id. at 177-78 (delineating cases
demonstrating this point, including ones where an applicant’s
detention, interrogation, beatings, and other deprivations did
not compel a conclusion of past persecution). While the events
Chen related are not justifiable, Chen failed to provide
adequate details from which the IJ could determine that those
events rose to the level of what our jurisprudence recognizes as
“persecution.” As such, he failed to satisfy his burden of
demonstrating refugee status and, in turn, eligibility for
asylum.

13
determined that the totality of Chen’s evidence failed to

satisfy his burden of proof. 6

The Board’s decision pointed to specific concerns regarding

the lack of detail and the generalized nature of Chen’s

testimony, and why Chen had not satisfied his burden of proving

refugee status. Consequently, as the IJ stated and the Board

affirmed, Chen failed to “[meet] his burden of proof to show

that whatever may have occurred to him was such as to have

constituted past persecution, or even to show that [he] has some

reasonable possibility of future persecution.” (J.A. 47.) The

IJ appropriately permitted Chen to present and develop his case

and to satisfy his burden of proof; it and the Board then

considered the totality of the evidence before them and

concluded it was insufficient to meet Chen’s burden. 7 We have

6
We disagree with the dissenting opinion’s characterization
that we are substituting our own rationale for that of the IJ
and the Board. Neither decision is a model of clarity, but they
are both grounded in Chen’s failure to present sufficient proof,
be it through testimony or corroborating evidence, to support
his claim. That same deficiency in Chen’s testimony supported
the adverse credibility determination. The IJ and Board
decisions invoked two permissible factors (sufficiency and
credibility) in considering—and ultimately denying—Chen’s
application.
7
The dissenting opinion is correct that an IJ has a role in
the development of the record. The IJ in this case did ask Chen
a series of questions to “determine a frame of reference,” which
“was not fleshed out on direct examination, nor was it fleshed
out on cross or redirect.” (J.A. 73.) At the outset of the
proceedings and throughout, the IJ took an active role in
(Continued)
14
reviewed the Board’s decision as well as the record on which it

based its determination, and conclude the evidence is not “so

compelling that no reasonable factfinder could fail to find that

[Chen] had established eligibility for asylum.” Dankam, 495

F.3d at 124 (internal quotation marks omitted). Accordingly,

substantial evidence supports the Board’s conclusion that Chen

did not demonstrate eligibility for asylum based on past

persecution.

Chen also contends that even if he did not establish past

persecution, he nonetheless demonstrated a well-founded fear of

future persecution on account of his religion. The “well-

founded fear of persecution” standard consists of two

components: the subjective part requires the alien to present

“candid, credible, and sincere testimony demonstrating a genuine

fear of persecution,” and the objective component requires him

to provide “specific, concrete facts that would lead a

reasonable person in like circumstances to fear persecution.”

Ngarurih v. Ashcroft, 371 F.3d 182, 187-88 (4th Cir. 2004).

Chen points to the same evidence of past persecution to satisfy

questioning Chen and asking for clarification. We do not,
however, second guess the scope of the IJ’s intervention as we
are to uphold the Board’s decision unless it is manifestly
contrary to the law and an abuse of discretion. See Lin v.
Holder, 611 F.3d 228, 235 (4th Cir. 2010).

15
the subjective component and to China’s “well known”

“persecution [of] underground churches and participants” to

satisfy the objective component. (Opening Br. 16.) Chen’s

argument fails because he relies on the identical evidence of

past persecution to support the subjective component of this

claim. See Dankam, 495 F.3d at 123 (“[T]he subjective element

cannot generally be proved other than through the applicant’s

testimony.” (citing Camara v. Ashcroft, 378 F.3d 361, 369 (4th

Cir. 2004)); see also Li, 405 F.3d at 176-77 (citing Zalega v.

INS, 916 F.2d 1257, 1261 (7th Cir. 1990)) (stating that an alien

whose evidence of past persecution is insufficient to constitute

past persecution under the statute usually cannot rely on the

same evidence to show a well-founded fear of future persecution,

but must prove she has reason to believe she will be treated

worse upon return to her country).

B

Because substantial evidence supports the Board’s decision

that Chen has not met his burden for showing eligibility for

asylum, it necessarily follows that substantial evidence also

supports its decision that Chen did not satisfy the higher

burden of demonstrating a “clear probability of persecution” on

account of religion for purposes of withholding of removal. See

8 U.S.C. § 1231(b)(3); see also Dankam, 495 F.3d at 124 (Because

16
of the higher standard of proof, “[petitioner’s] failure to

establish eligibility for asylum necessarily means she cannot

demonstrate eligibility for withholding of removal under the

INA.”).

So, too, do we affirm the Board’s decision with regard to

Chen’s application for relief under the CAT, which “prohibits

the United States from returning any person to a country where

the person has demonstrated that it is more likely than not that

he will be tortured if returned to such country.” Zelaya, 668

F.3d at 161. Chen bore the burden of proving eligibility for

relief under the CAT, and the Board concluded that he had not

“establish[ed] that he would more likely than not face torture

by or with the acquiescence . . . of the government of China

upon return to China.” (J.A. 4.) In light of the general and

vague record Chen developed to support his claim before the IJ,

substantial evidence supports that decision as well.

III

For the aforementioned reasons, Chen’s petition for review

is

DENIED.

17
DAVIS, Circuit Judge, dissenting:

In this case the Attorney General asks us to accept an

adverse credibility determination based on missing details that

the Attorney General never mentioned before the IJ and that the

IJ never requested of petitioner. See infra n.6. But “[u]nlike

an Article III judge, an IJ is not merely the fact finder and

adjudicator, but also has an obligation to establish and develop

the record.” Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). 1

Indeed, an IJ is statutorily required to “interrogate, examine,

and cross-examine the alien and any witnesses.” 8 U.S.C. §

1229a(b)(1).

Consistent with this responsibility, “[a]n IJ must offer a

specific, cogent reason for rejecting evidence, whether

testimonial or documentary, because it lacks credibility.” Tassi

v. Holder, 660 F.3d 710, 720 (4th Cir. 2011) (emphasis added).

1
Accord Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir.
2008) (“Unlike Article III courts, an immigration court is a
more inquisitorial tribunal. Congress has given immigration
judges the authority to ‘interrogate, examine, and cross-examine
the alien and any witnesses.’”) (quoting 8 U.S.C. §
1229a(b)(1)); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14
(1st Cir. 2004) (recognizing an IJ’s duty “to fully develop the
record”). See also Richardson v. Perales, 402 U.S. 389, 410
(1971) (observing that an administrative law judge “acts as an
examiner charged with developing the facts”); Charles H. Koch,
Jr., 2 Administrative Law & Practice § 5:25 (3d ed.) (“The
administrative judge is pivotal to the fact-finding function of
an evidentiary hearing and hence, unlike a trial judge, an
administrative judge has a well-established affirmative duty to
develop the record.”).

18
“Examples of specific and cogent reasons include inconsistent

statements, contradictory evidence, and inherently improbable

testimony . . . .” Tewabe v. Gonzales, 446 F.3d 533, 538 (4th

Cir. 2006) (internal quotation marks omitted). We have never

said that lack of specificity, in and of itself, is enough for

an adverse credibility determination--and for good reason.

Because

the list of circumstantial details can be expanded
indefinitely, a legal standard that empowers an IJ
or the [Board] to rule against a petitioner who
fails to anticipate the particular set of details
that the fact-finder desires (but does not request,
through questions directed to the applicant) is no
standard at all. It would enable the administrative
decisionmaker to reject whichever applicants that
fact-finder happens to disfavor.

Ming Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 123

(2d Cir. 2006) (emphasis in original) (quoting Jin Shui Qiu v.

Ashcroft, 329 F.3d 140, 151–52 (2d Cir. 2003)). Accordingly, we

should adopt the view of the Second Circuit and hold that

in a proceeding wherein an alien seeks relief from
removal, a finding of testimonial vagueness cannot,
without more, support an adverse credibility
determination unless government counsel or the IJ
first attempts to solicit more detail from the alien.

Li v. Mukasey, 529 F.3d 141, 147 (2d Cir. 2008). 2

2
The Second Circuit has emphasized that its rule is “not
tantamount to a duty to assist the counseled asylum applicant in
putting forward an affirmative asylum claim in the first place.”
Li, 529 F.3d at 148 n.5 (internal quotation marks omitted). Nor
do I favor any such rule. Rather, like the Second Circuit, I
(Continued)
19
 We already impose a similar rule with respect to adverse

credibility determinations based on the lack of corroborating

evidence. See Lin-Jian v. Gonzales, 489 F.3d 182, 191 (4th Cir.

2007) (“The requirement that the applicant provide a reasonable

explanation for the lack of corroborating evidence ‘presumes

that the IJ offers a petitioner an opportunity to explain the

absence.’”) (emphasis added) (quoting Obale v. Attorney Gen. of

the United States, 453 F.3d 151, 163 (3d Cir. 2006)). And the

Second Circuit’s rule on testimonial vagueness is consistent

with the statute governing adverse credibility determinations,

which permits an IJ to consider, inter alia, the “responsiveness

of the [asylum] applicant,” 8 U.S.C. § 1158(b)(1)(B)(iii)

(emphasis added); the statute says nothing about the specificity

simply would not sustain a result adverse to the applicant under
circumstances in which the IJ has carried out an ambush by
abjuring questions that are easily answered and that would no
doubt provide an adequate level of “specificity,” the absence of
which the IJ later relies on to reject the applicant’s claim to
asylum. As explained in text, such a practice is wholly
incompatible with the IJ’s responsibilities under law.

The majority’s studied dismissiveness of this line of
Second Circuit authority is notable, considering Chen’s removal
proceedings commenced in New York. No doubt, he and his counsel
now wish he had remained there rather than relocating to
Virginia and moving to transfer venue.

20
of an applicant’s testimony. 3 See, e.g., Holland v. Florida, 130

S. Ct. 2549, 2562 (2010) (observing that, under “the

interpretive maxim inclusio unius est exclusio alterius,” “to

include one item . . . is to exclude other similar items”).

Here, the adverse credibility determination was based on

Chen’s failure to provide details that neither the IJ nor the

government requested: “how many people were praying with [Chen]”

when he was arrested in China, “where they were praying,” “how

physically he and others were abused, what happened to other

church members who allegedly were with him,” and whether the

pastor also was arrested. J.A. 73. Because the IJ did not

request these details, the adverse credibility determination “is

not based on a specific, cogent reason, but, instead is based on

speculation, conjecture, or an otherwise unsupported personal
3
The statute also permits adverse credibility
determinations on the basis of

the demeanor [and] candor . . . of the applicant
or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under
oath, and considering the circumstances under which
the statements were made), the internal consistency of
each such statement, the consistency of such
statements with other evidence of record (including
the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in
such statements . . . .

8 U.S.C. § 1158(b)(1)(B)(iii). The IJ relied on no such
considerations in this case.

21
opinion,” and, thus, “it cannot be upheld.” Tewabe, 446 F.3d at

538. 4

I invite the reader to turn back and reread pages 2 through

6 of the majority opinion. Is the narrative there incomplete or

incoherent? Is the reader left wondering what happened to Chen

that prompted his escape from China? Does the reader discern any

implausibility or telling gaps in the narrative? The answer to

each query is no. Notably, moreover, the majority has provided

only a cursory summary of the detailed testimonial and

documentary evidence that was before the IJ. 5 The documentary

4
The majority states that “the IJ’s adverse credibility
determination and the Board’s affirmance thereof flowed directly
from their overarching concerns about the lack of detail and the
general, vague nature of Chen’s testimony.” Ante, at 12. In
support of this statement, the majority asserts that “the IJ
must assess, inter alia, whether an applicant’s testimony
‘refers to specific facts sufficient to demonstrate that the
applicant is a refugee’ and whether that testimony is
‘credible.’” Id. at 11 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).
In fact, the standard cited by the majority applies only when
the applicant seeks to meet his burden of proof without
corroborating evidence. 8 U.S.C. § 1158(b)(1)(B)(ii). Moreover,
the cited language appears nowhere in the Board’s brief order
affirming the IJ’s decision. The Board “act[ed] on improper
grounds” by affirming on the basis of the flawed credibility
determination, and the majority is “powerless to affirm . . . by
substituting what it considers to be a more adequate or proper
basis.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), quoted
in Crespin-Valladares v. Holder, 632 F.3d 117, 123 (4th Cir.
2011).
5
For example, the majority asserts simply that Chen “became
depressed” after breaking up with his girlfriend in 2003, ante,
at 2–3, but the evidentiary record is perfectly clear and
undisputed that the break-up had such a profoundly distressing
(Continued)
22
effect on Chen that he contemplated suicide. Whatever the IJ may
or may not believe, we Americans are not alone in our
familiarity with the sometimes bleak lives of twenty-year-olds,
as Chen then was, at moments of deep emotional loss. It was at
this low point in Chen’s life that his friend, Jiang Zhi Yong, a
devout Christian who remains in China and whose affidavit is in
the record, introduced Chen to the underground, i.e., the
authentic, Christian experience. Chen’s mother’s affidavit
confirms this account. Chen was baptized four years later, in
2007.

As he did with all of the confirmatory documentary
evidence, the IJ simply ignored this highly detailed and
specific aspect of Chen’s narrative. With all due respect for my
friends in the majority, their assertion that “[t]he IJ
thoroughly reviewed the evidence Chen did present in support of
his case,” ante, at 12–13, is demonstrably untrue. Rather than
assess and evaluate the whole record and reach a judgment as to
the overall persuasiveness of what was presented, the IJ simply
ticked off distinct items of evidence as if they comprised some
form of checklist, pausing at each simply to identify what the
particular item of evidence did not show. See, e.g., J.A. 44
(observing that Chen “lives in Virginia” but “had a difficult
time giving the address where he lives,” which was already in
the record and undisputed). The IJ concluded that Chen “ha[d]
not met his burden of proof to show that whatever may have
occurred to him was such as to have constituted past
persecution.” Id. at 74. The Board went further and declared
Chen’s testimony “incredible.” Id. at 4.

The majority’s less-than-bold assertion that neither the
IJ’s oral decision (rendered immediately at the end of the
evidentiary hearing) nor the Board’s one-page decision affirming
the IJ “is a model of clarity,” ante, at n.6, is charitable in
the extreme. In any event, the majority’s faint-hearted attempt
to rest its denial of relief here on the ipse dixit of a merger
of principles related to insufficiency of evidence on the
merits, on the one hand, and credibility of documentary and
testimonial evidence, on the other hand, fares no better than
the Board’s attempt. Both are utter failures because the IJ
relied exclusively on a lack of credibility, as evidenced by his
reference to “whatever may have occurred to [Chen].” J.A. 74.
And the IJ offered no “specific, cogent reason”--in the face of
Chen’s testimony and corroborating documentary evidence--for his
(Continued)
23
evidence, in particular, is fulsome and is not in any manner

inconsistent with the testimonial evidence, nor is any of the

evidence inherently implausible or inherently unbelievable.

Accordingly, we should grant the petition for review, vacate the

Board’s order, and remand for further proceedings.

Indeed, it is highly doubtful that my friends in the

majority disagree with what I have written; the law is clear.

This is made evident by the majority’s curious footnotes 5 and 6

and related text. See ante, at 13, and nn. 5 & 6. What is

revealed therein is that the majority does not believe Chen has

adduced sufficient evidence of past or future persecution, not

that his credibility is wanting. 6 Undeniably, this substitution

disbelief that Chen was arrested and beaten by Chinese
authorities. See Tassi, 660 F.3d at 720.
6
Indeed, like my colleagues in the majority, even the
second-year law student who represented the government before
the IJ fully understood that this is a sufficiency of the
evidence case, not a credibility case. Her abbreviated closing
argument consisted entirely of the following:

It is the Government’s position that the
respondent has not met his burden of proof in
establishing that he was persecuted for his religious
beliefs. The respondent has not offered sufficient
testimony detailing how or why he became a Christian,
nor has he sufficiently testified as to any of his
church activities. The respondent offered insufficient
testimony regarding his detention and mistreatment by
the Chinese police. Finally, the respondent did not
provide sufficient corroboration in evidence of
religious beliefs, church activities, or any
(Continued)
24
of a reason to deny Chen’s petition for review is flatly

prohibited by binding circuit precedent. See Crespin-Valladares

v. Holder, 632 F.3d 117, 123 (4th Cir. 2011).

Respectfully, I dissent.

mistreatment by government officials in China. It is
therefore the position of the Government that
respondent is not eligible for relief for asylum.

J.A. 49 (emphases added).

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