Before: WINTER, MCLAUGHLIN, and CABRANES, Circuit Judges.
Petitioner Yan Juan Chen seeks review of an order of the Board of Immigration Appeals affirming the decision of an Immigration Judge denying her application for asylum, withholding of removal, and relief under the Convention Against Torture on the basis that her testimony regarding an alleged forced abortion was insufficient to carry her burden of proof and she failed to produce reasonably available corroborative testimony from her husband, an undocumented immigrant. Although we do not foreclose the possibility that an undocumented immigrant's refusal to testify on behalf of an asylum applicant for fear of being apprehended may, under certain circumstances, render his testimony unavailable, that was not the case here, where Chen conceded that her husband could only benefit from her being granted asylum or withholding of removal. We therefore find no error in the IJ's rejection of her explanation for her husband's absence and deny her petition for her review.
Petitioner Yan Juan Chen ("Chen"), a native and citizen of the People's Republic of China, seeks review of a May 20, 2010, order of the Board of Immigration Appeals ("BIA") affirming the September 26, 2007, decision of an Immigration Judge ("IJ"), denying her application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Yan Juan Chen, No. A094 798 134 (B.I.A. May 20, 2010), aff'g No. A094 798 134 (Immig. Ct. N.Y. City Sept. 26, 2007). The principal issue before us is whether substantial evidence supports the IJ's determination that Chen failed to carry her burden of proof. Underlying that is the issue of whether the IJ reasonably concluded that Chen failed to provide reasonably available corroborating evidence to support her claim. Having reviewed the record and the arguments on appeal, we conclude that substantial evidence supports the IJ's determinations, and we therefore deny Chen's petition for review.
In her application for asylum, withholding of removal, and relief under the CAT, Chen alleged that she was persecuted for violating China's family-planning policy. Because her husband belongs to an urban household, she asserted, the couple were permitted to have only one child, regardless of its gender. Chen claimed that in November 2004, a month after the birth of her first child, a daughter, she was ordered to wear an intrauterine device ("IUD"). When she refused, "family planning officials" went to her home and took her to have an IUD forcibly inserted. Chen alleged that she later went to a private doctor to have the IUD removed because she wanted more children and, shortly thereafter, she became pregnant. She also asserted that in June 2005, after she had missed her regular family-planning checkup, "family planning cadres" came to her home and forced her to go to a local hospital where, once her pregnancy was confirmed, she was forced to undergo an abortion. Following the abortion, Chen alleged, she had another IUD forcibly inserted and, in May 2006, she returned to the same private doctor she had seen previously to have her IUD removed. She then went into hiding, fearing that the family-planning officials would find her again. On June 1, 2006, Chen alleged, she and her husband fled from China to the United States, leaving their daughter behind with Chen's mother.
Chen entered the United States on or about June 14, 2006 and was immediately apprehended. Her husband, who arrived in the United States separately, was not apprehended. Appearing before an IJ on October 25, 2006, Chen conceded removability and requested relief in the form of asylum, withholding of removal, and protection under the CAT. She based her claims on her past encounters with Chinese family-planning officials and her belief that she would be sterilized if she were made to return. Chen appeared at a hearing on January 23, 2007, at which time she was approximately six months pregnant with her second child. For this reason, the IJ continued the hearing to September 26, 2007, after the child's birth. Also at this hearing, the IJ cautioned Chen, through her attorney, that he "expect[ed]" her to produce her husband to provide corroborating testimony:
Q: And as far as testimony is concerned, I expect that the husband should be, going to be here testifying. Correct?
A: I would assume so, Your Honor. Yes.
Q: I don't assume it, I expect it, number ...