Wen Feng Liu v. Holder , 714 F.3d 56 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1464
WEN FENG LIU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
Farah Loftus on brief for petitioner.
Elizabeth R. Chapman, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, and Shelley R. Goad,
Assistant Director, on brief for respondent.
April 22, 2013
LYNCH, Chief Judge. On November 10, 2009, an Immigration
Judge found petitioner Wen Feng Liu removable under the Immigration
and Nationality Act and denied Liu's applications for asylum,
withholding of removal, and protection under the Convention Against
Torture. The Board of Immigration Appeals dismissed Liu's appeal
on March 26, 2012, and Liu filed a timely petition for review.
Because the decision below was supported by substantial evidence,
we deny the petition and affirm the BIA.
I.
On December 27, 2006, Liu, a native-born citizen of the
People's Republic of China, entered the United States without
admission or parole. His wife and child remained in China. Just
over six months later, on July 6, 2007, Liu filed an affirmative
application for asylum and withholding of removal.
Liu's application asserted that in 2003, he and his wife
conceived a second child in violation of China's one-child policy
and that as a result his wife was subjected to a forced abortion.
A section of the Immigration and Nationality Act provides that
those "forced to abort a pregnancy" are presumptively entitled to
asylum. 8 U.S.C. § 1101(a)(42)(B) (2006). At the time of Liu's
application, the Board of Immigration Appeals (BIA) had interpreted
this section as extending the presumption to the husband of a woman
subject to a forced abortion. See In Re S-L-L, 24 I. & N. Dec. 1,
7 (BIA 2006) ("[Forced abortion of a] prospective child . . . is
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explicitly directed against both husband and wife for violation of
the Government-imposed family planning law and amounts to
persecution of both parties to the marriage.").
On October 11, 2007, following an initial interview and
referral from an asylum officer, Liu appeared before an Immigration
Judge (IJ) and conceded removability but requested asylum,
withholding of removal, and protection under the Convention Against
Torture (CAT). Various procedural matters, including a change of
venue from New York to Boston, then delayed adjudication of Liu's
petition on the merits for more than two years. On May 15, 2008,
while the petition remained pending, the Attorney General issued an
opinion overruling the BIA's interpretation of section
1101(a)(42)(B) as presumptively entitling a husband to asylum on
the basis of his wife's forced abortion. See Matter of J–S–, 24 I.
& N. Dec. 520, 536 (A.G. 2008); see also Xian Tong Dong v. Holder,
696 F.3d 121, 125 (1st Cir. 2012) (Attorney General's opinion in
Matter of J-S- is a "reasonable interpretation" of statute).
The Attorney General acknowledged that section
1101(a)(42)(B) "does not explicitly exclude spouses from its
purview." Matter of J–S–, 24 I. & N. Dec. at 530. However, he
concluded that applicants whose spouses have been forced to undergo
an abortion or involuntary sterilization procedure "must present
proof, of which their spouse's treatment may be a part, of
persecution for refusing to undergo forced abortion or
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sterilization procedures or for engaging in 'other resistance' to
a coercive population control program." Id. at 535.
Following the Attorney General's decision, which
petitioner does not challenge, Liu modified his asylum application.
First, on October 21, 2009, he added an additional claim; he
asserted that since his initial submission and meeting with the
asylum officer, he and his wife had become adherents of Falun Gong,
the spiritual discipline that is the target of a suppression
campaign by the Chinese government. Liu claimed that his wife had
been arrested in China for practicing Falun Gong and that he feared
future persecution based on his own practice. Second, on November
9, 2009, Liu amended his original claim; he asserted for the first
time that in 2003, when his wife was pregnant with their second
child, Chinese officials came to his home and hit him, and that he
was forced into hiding.
On November 10, 2009, Liu received a merits hearing
before a Boston IJ and testified regarding the two grounds on which
he sought asylum, withholding of removal, and CAT protection. In
describing his claim based on his wife's abortion, he repeated the
assertions in his original and amended application. Liu expounded
somewhat on his assertion that he went into hiding; he claimed
government officials abused him during this time, although he
repeatedly failed to specify when or how, and he explained that
although he was in hiding, he continued to work. In describing his
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claim based on his adherence to Falun Gong, Liu testified that he
began practicing at his wife's suggestion in July 2008 and that his
practice included weekly public exercises in Boston's Chinatown
Park. He also testified that Chinese officials arrested his wife
for practicing Falun Gong and held her from April to September
2009, during which time they deprived her of adequate food and
physically abused her. In support of these claims, he submitted
various letters and affidavits.
After considering Liu's testimony and supporting
evidence, the IJ denied asylum, withholding of removal, and CAT
protection. The IJ explained his reasoning in an oral decision,
addressing first Liu's claim based on his wife's forced abortion.
The IJ focused on the change of law announced in Matter of J–S– and
noted that under the Attorney General's controlling interpretation
of section 1101(a)(42)(B), Liu's claim as initially presented did
not entitle him to asylum. Liu's later assertions that officials
hit him and that he was forced into hiding lacked credibility, the
IJ found. He concluded that Liu added these allegations only to
establish that he had engaged in "other resistance" to the forced
abortion program, as Matter of J–S– required. 24 I. & N. Dec. at
535. The IJ also found Liu's claim that he continued to work while
in hiding "internally inconsistent." Finally, the IJ concluded
that even if Liu were credible, his claimed abuse relating to his
wife's forced abortion did not entitle him to asylum.
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As for Liu's claimed practice of Falun Gong, the IJ
expressed concern that Liu was trying "to end-run an asylum claim
after there has been a change in the law having to do with his
original claim." The IJ concluded that Liu's "non-credible
testimony" regarding his "resistance to family coercive population
control laws" was "convinc[ing]" evidence that he "is not a sincere
believer in Falun Gong but, rather, has created that also in order
to qualify for political asylum on a ground not contemplated by him
when he fled China and came to the United States." The IJ
concluded that although Liu did practice Falun Gong, his lack of
sincere belief meant that he was not entitled to asylum.
Finally, because Liu failed to satisfy the requirements
for asylum on the basis of either his wife's forced abortion or his
own practice of Falun Gong, the IJ concluded that he also failed to
satisfy the requirements for withholding of removal or CAT
protection.
Liu filed a timely appeal, which the BIA dismissed on
March 26, 2012. The BIA's order closely tracked the IJ's decision,
explaining briefly why the IJ's factual findings were not clearly
erroneous and why his legal conclusions were correct. The BIA
noted in addition that Liu had not submitted medical records
confirming his wife's abortion and had admitted that he could
practice Falun Gong privately in China. On April 19, 2012, Liu
filed a timely petition for review by this court.
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II.
When, as in this case, the BIA adopts the IJ's order but
also discusses the bases for that order, we review both opinions.
Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir. 2008). On questions of
law, our review is de novo, "with appropriate [administrative-law]
deference to the agency's interpretation of the underlying
statute." Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011)
(quoting Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir. 2006))
(internal quotation mark omitted). On questions of fact, however,
we apply the substantial evidence standard. Lobo v. Holder, 684
F.3d 11, 16 (1st Cir. 2012). In light of the IJ's superior
"vantage point from which to assess the witnesses' testimonies and
demeanors," this standard "accord[s] significant respect
to . . . witness credibility determinations" made by the IJ and
adopted by the BIA. Cuko, 522 F.3d at 37. As required by statute,
we "will not reverse a determination that a witness was not
credible unless 'any reasonable adjudicator would be compelled to
conclude to the contrary.'" Stroni v. Gonzales, 454 F.3d 82, 87
(1st Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Here, the issues are factual rather than legal. The
statutory and regulatory schemes governing Liu's claims are clear.
To be eligible for asylum, an applicant must be a "refugee," 8
U.S.C. § 1158(b)(1)(A), who is unwilling or unable to return to his
or her home country due to "persecution or a well-founded fear of
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persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion," id.
§ 1101(a)(42)(A). Withholding of removal sets the bar higher; an
applicant must demonstrate that in the proposed country of removal,
it is more likely than not that his or her "life or freedom would
be threatened" on account of the statutorily protected asylum
grounds. Id. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). Finally, CAT
protection requires an applicant to demonstrate that in the
proposed country of removal, "it is more likely than not that he or
she would be tortured" by or with the acquiescence of the
government, although not necessarily on account of the statutorily
protected asylum grounds. 8 C.F.R. § 1208.16(c)(2).
The burden of establishing eligibility for asylum,
withholding of removal, or CAT protection is on the applicant.
Simo v. Gonzales, 445 F.3d 7, 11 (1st Cir. 2006). Credible
testimony on its own may support a claim, but when an applicant
presents "evidence that the factfinder supportably characterizes as
incredible," such evidence "may be either disregarded or
discounted." Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007).
Liu does not argue that the IJ or BIA erred in
interpreting or applying the governing law. Rather, he challenges
the BIA's acceptance of the IJ's adverse credibility determinations
and its resulting conclusion that he is not entitled to asylum,
withholding of removal, or CAT protection. Because Liu filed his
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initial application for asylum after May 11, 2005, his application
is governed by the REAL ID Act of 2005, Pub. L. No. 109–13,
§ 101(h)(2), 119 Stat. 302, 305, which sets out a "totality of the
circumstances" rule for credibility determinations, Seng v. Holder,
584 F.3d 13, 18 n.2 (1st Cir. 2009). The rule permits the trier of
fact to consider "all relevant factors" and make an adverse
credibility determination "without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii).
We begin our review with Liu's asylum claim related to
his wife's forced abortion. Liu disputes that the IJ had any basis
for finding his statements incredible. He argues that "often,
petitioners give more explanations and details about their reasons
for asylum in court than in the application for asylum." He
concedes that he did not initially claim that officials hit him and
that he was forced into hiding, but maintains "that fact alone
should not have been the basis to find [him] not to be credible."
This argument misstates the IJ's conclusion. The IJ did
not determine that Liu lacked credibility simply because he added
details to his asylum application after first filing it. Rather,
as explained above, the IJ determined that Liu lacked credibility
primarily because Liu added these details only when confronted with
the change in law following Matter of J–S–. The IJ further noted
that one of the added details rendered Liu's story internally
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inconsistent; Liu never explained how he retained his regular job
after supposedly going into hiding.
The IJ's conclusions have substantial force. To the
extent that "determining credibility is a matter of sound judgment
and common sense . . . , when an alien's earlier statements omit
any mention of a particularly significant event or datum, an IJ is
justified -- at least in the absence of a compelling explanation --
in doubting the petitioner's veracity." Muñoz-Monsalve v. Mukasey,
551 F.3d 1, 8 (1st Cir. 2008). Given "that a witness's demeanor is
often a critical factor in determining [his] truthfulness," Laurent
v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004), the IJ who actually
heard Liu's testimony could rely on considerably more than sound
judgment and common sense in making the credibility determination
that he did.
Accordingly, we conclude that substantial evidence
supported the IJ's finding, adopted by the BIA, that Liu lacked
credibility in asserting that officials hit him and that he went
into hiding following his wife's forced abortion. His asylum claim
related to the abortion, which depended on those assertions,
therefore fails, and his claim for withholding of removal, which
requires a "more stringent" showing, necessarily fails as well.
See Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010). As
for Liu's CAT claim, he presents no argument as to why the
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decisions below were in error, and the issue is thus waived. See
Berrio-Barrera v. Gonzales, 460 F.3d 163, 168 n.2 (1st Cir. 2006).
We turn next to Liu's asylum claim based on his newfound
adherence to Falun Gong. It too was a belated assertion, added
after the change in law by the Attorney General in an apparent
effort to strengthen a weakened claim. Here, although Liu's asylum
claim related to his wife's forced abortion could be viewed as
distinct from his claim related to his Falun Gong practice, the
REAL ID Act gave the IJ discretion to draw the "falsus in uno,
falsus in omnibus" (false in one thing, false in everything)
inference. See Castañeda-Castillo v. Gonzales, 488 F.3d 17, 23 &
n.6 (1st Cir. 2007) (en banc). Indeed, in some sense the Act
confirmed the IJ's discretion to do so, because drawing this
inference was permissible in appropriate circumstances even before
adoption of the "totality of the circumstances" rule. See, e.g.,
Yongo v. INS, 355 F.3d 27, 34 (1st Cir. 2004) (holding that when an
applicant's "credibility has been seriously forfeit, the fact-
finder may be left in enough doubt about the balance of the
testimony to conclude that the applicant has not proved his case").
In short, having concluded that Liu lacked credibility in
describing the events surrounding his wife's forced abortion, the
IJ had an ample basis for concluding that Liu was not a sincere
adherent of Falun Gong. The belated nature of his purported
adherence to Falun Gong and of his claim reinforces that
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conclusion. His asylum claim based on his supposed adherence thus
fails. Again, this failure means that his application for
withholding of removal necessarily fails as well. See Mendez-
Barrera, 602 F.3d at 27.
As for Liu's CAT protection claim related to Falun Gong,
substantial evidence supported the decisions of the BIA and the
IJ.1 Indeed, Liu's petition for review does not even point to any
error below. Rather, he simply notes his own testimony that he
fears being tortured and refers to a report from the Department of
State, which he summarizes as establishing that "some Falun Gong
members have been tortured in [government] custody." Even if Liu
were a sincere adherent of Falun Gong, the report does not
demonstrate that he is entitled to CAT protection. While such
"reports can be a valid source of evidence with respect to CAT
claims," they do not as a rule "supplant the need for
particularized evidence in particular cases." Amouri v. Holder,
572 F.3d 29, 35 (1st Cir. 2009). Liu does not explain why it is
"more likely than not" that he would be tortured, as CAT protection
requires. 8 C.F.R. § 1208.16(c)(2).
The petition for review is denied.
1
We want to be clear that an adverse credibility finding that
is fatal to an asylum application is not automatically fatal to a
CAT claim. See Settenda v. Ashcroft, 377 F.3d 89, 94-95 (1st Cir.
2004).
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