Guo Chao-Qing v. Jefferson Sessions, III , 690 F. App'x 227 ( 2017 )


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  •      Case: 16-60100      Document: 00514019443         Page: 1    Date Filed: 06/05/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-60100                                      FILED
    Summary Calendar                                 June 5, 2017
    Lyle W. Cayce
    Clerk
    GUO CHAO-QING, also known as Chao-Qing Guo,
    Petitioner
    v.
    JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A098 718 261
    Before KING, DENNIS, and COSTA, Circuit Judges.
    PER CURIAM:*
    Chao-Qing Guo, a native and citizen of the People’s Republic of China,
    petitions this court for review of the Board of Immigration Appeals’ (BIA)
    decision affirming the Immigration Judge’s (IJ) denial of his application for
    asylum, withholding of removal, and relief under the Convention Against
    Torture (CAT). Guo contends that he is a Christian and a member of an
    underground church in China; that he was subject to police intimidation and
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 16-60100      Document: 00514019443         Page: 2    Date Filed: 06/05/2017
    No. 16-60100
    brutality on the basis of his religious practices; and that he would face state-
    sponsored oppression and torture if he were to return to China. Guo was the
    only witness at the asylum hearings, though he submitted documentation in
    support of his application, including statements from family members in
    China, a pastor from a church he attended in China, and pastors from the
    churches he has attended in the United States. Guo argues that the BIA erred
    in affirming the IJ’s denial of relief based on an adverse credibility
    determination.   He also contends that the IJ and BIA erred in requiring
    corroborative evidence and discounting or discrediting the documentary
    evidence submitted in support of his application.
    Because the BIA approved of and relied upon the IJ’s decision, this court
    may review the decisions of both the BIA and the IJ. See Efe v. Ashcroft, 
    293 F.3d 899
    , 903 (5th Cir. 2002). The BIA and the IJ’s factual findings are
    reviewed for substantial evidence and their legal conclusions are reviewed de
    novo. 
    Id. Credibility determinations
    are factual findings that are reviewed for
    substantial evidence. See Vidal v. Gonzales, 
    491 F.3d 250
    , 254 (5th Cir. 2007).
    Under the REAL ID Act, a trier of fact must consider “the totality of the
    circumstances”    and    “all   relevant       factors”   in    making   a   credibility
    determination. 8 U.S.C. § 1158(b)(1)(B)(iii). The IJ and BIA “may rely on any
    inconsistency or omission in making an adverse credibility determination as
    long as the ‘totality of the circumstances’ establishes that an asylum applicant
    is not credible.” Wang v. Holder, 
    569 F.3d 531
    , 538 (5th Cir. 2009) (quoting
    Lin v. Mukasey, 
    534 F.3d 162
    , 167 (2d Cir. 2008)). We will defer to a “credibility
    determination unless, from the totality of the circumstances, it is plain that no
    reasonable fact-finder could make such an adverse credibility ruling.” 
    Id. (quoting Lin,
    534 F.3d at 167).
    2
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    No. 16-60100
    Guo argues principally that there were no inconsistencies between or
    among his statements and that the alleged inconsistencies relied on by the IJ
    and the BIA were minor and did not go to the heart of his claims for relief.
    However, the IJ and BIA’s adverse credibility determinations relied on specific,
    record-based inconsistencies. For example, when asked who his pastor was,
    Guo took a long pause before testifying that he only knew Pastor Liu. He later
    testified that he had forgotten about Pastor Ho, the senior pastor at the church
    who had submitted a letter in support of Guo’s application. In his subsequent
    written statement, Guo stated both that he saw Pastor Ho nearly every
    Wednesday at church and that he was “not familiar with Pastor Ho.” Further,
    Guo’s written statement says that his friend Bobby did not attend church
    service and did not testify or submit a statement in support of Guo’s asylum
    application because Bobby “had no knowledge on church.” This conflicts with
    Guo’s testimony that Bobby went to church with Guo “a couple of times.”
    Although we acknowledge that these discrepancies may be explainable,
    the record does not compel the conclusion that the IJ and BIA erred in relying
    on them. See Mwembie v. Gonzales, 
    443 F.3d 405
    , 410 (5th Cir. 2006) (“where
    the judge’s credibility determinations are supported by the record, we will
    affirm them even if we may have reached a different conclusion”). Cf. Kompany
    v. Gonzales, 236 F. App’x 33, 38 (5th Cir. 2007) (“Although we believe these
    inconsistencies may be explainable and are on the outer perimeter of
    materiality, they nevertheless support the IJ’s credibility determination, and
    the IJ is entitled to rely on them.”). Guo’s argument that the inconsistencies
    identified were unrelated to his claim fails, as inferences about credibility can
    be drawn from inconsistencies “without regard to whether [they] . . . go[] to the
    heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also 
    Wang, 569 F.3d at 538
    .
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    To the extent Guo raises other arguments, including that the only true
    inconsistency resulted from translation issues and that he was precluded from
    presenting evidence explaining the alleged inconsistencies, we find these
    arguments unexhausted and, as a result, jurisdictionally barred. The only
    challenges to the credibility finding raised in Guo’s brief before the BIA were
    that Guo was nervous at his hearing, he had testified consistently as to his
    Christian faith and persecution, and he had corroborated his claims with
    documentary evidence.      Because Guo failed to raise additional arguments
    challenging the credibility determination in his appeal to the BIA, this court
    lacks jurisdiction to review such arguments. See 8 U.S.C. § 1252(d)(1) (“[a]
    court may review a final order of removal only if . . . the alien has exhausted
    all administrative remedies available to [him] as of right”); Ahmed v. Holder,
    368 F. App’x 489, 492 (5th Cir. 2010) (court lacked jurisdiction to consider
    argument that “various inconsistencies in his testimony . . . were the result of
    his inability to understand English,” as it had not been raised before the BIA);
    Omari v. Holder, 
    562 F.3d 314
    , 319 (5th Cir. 2009) (failure to exhaust an issue
    before the BIA is a jurisdictional bar to judicial review).
    Guo also argues that the IJ and BIA failed to give sufficient weight to
    his documentary evidence. Guo faults the IJ for discounting statements from
    two American pastors and from a doctor in China on the grounds that they did
    not reflect firsthand knowledge of Guo’s experience being beaten by police.
    Guo claims that he offered the statements from the pastors in support of his
    claim that he is a practicing Christian and that he offered the statement from
    the doctor as proof that he required treatment after being beaten by police.
    However, the IJ was not unreasonable in drawing a negative inference from
    the fact that although the pastors said that they had known Guo for four years,
    and that he was “like a son” to them, Guo testified that he did not know their
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    last names. See 
    Mwembie, 443 F.3d at 413
    (noting that “an IJ can base some
    of his determinations on his understanding of general human behavior”). And
    while the doctor’s statement says that she treated Guo’s bruising and aches, it
    reflects that Guo’s mother told the doctor that he had been “beaten by
    somebody,” not specifically the police. Thus, while this evidence is obliquely
    corroborative, it does not directly support Guo’s claimed persecution by
    Chinese authorities. Guo also claims that it was error to discount statements
    from Guo’s mother and aunt because the translator did not provide a name for
    the aunt and because Guo’s mother reported no harm as a result of her church
    attendance in China. However, the IJ noted that these statements did have
    evidentiary value, but did not overcome the inconsistencies in Guo’s testimony,
    particularly in light of the fact that Guo’s aunt and mother were not subject to
    cross-examination.
    Because Guo has failed to show that, under the totality of the
    circumstances, the evidence is so compelling that no reasonable factfinder
    could fail to find otherwise, we defer to the IJ’s and BIA’s adverse credibility
    determinations. See 
    Wang, 569 F.3d at 538
    –39. Guo does not argue that his
    documentary evidence alone supports his claims for relief. Therefore, in light
    of the adverse credibility determination, Guo has failed to show that the BIA
    erred in affirming the IJ’s denial of his application for asylum, withholding of
    removal, and relief under the CAT. See Dayo v. Holder, 
    687 F.3d 653
    , 657–59
    (5th Cir. 2012); Efe v. Ashcroft, 
    293 F.3d 899
    , 906–08 (5th Cir. 2002); Chun v.
    INS, 
    40 F.3d 76
    , 78–79 (5th Cir. 1994). Accordingly, Guo’s petition for review
    is DENIED.
    5