Li v. Holder , 607 F. App'x 818 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 23, 2015
Elisabeth A. Shumaker
Clerk of Court
JING LI,
Petitioner,
v. No. 14-9582
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges.
Jing Li is a native and citizen of China. He entered the United States legally,
but overstayed his visa and became subject to removal from this country. Mr. Li
filed an application seeking asylum, withholding of removal, and relief under the
Convention Against Torture (CAT), alleging that he had been persecuted in China
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
because of his Christian faith and that he feared future persecution if returned to
China.
An immigration judge (IJ) held a hearing at which Mr. Li testified. The IJ
found his testimony not credible and unsupported by adequate corroborating
evidence, and therefore denied relief. The Board of Immigration Appeals (BIA)
dismissed Mr. Li’s appeal. He now petitions for review of the BIA’s final order of
removal. We affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND
Mr. Li was represented by counsel during the asylum hearing, but he briefed
this petition for review pro se. He has admitted the allegations in the Notice to
Appear and has conceded that he is subject to removal.
In his sworn statement in support of his asylum application, Mr. Li explained
that the pressures of owning his own company in China had put him in a “spirit of
high tension.” Admin. R. at 142. In March 2008 he met a client named Haijun Gao,
who told him that by becoming a Christian, Mr. Li could find relief from his job
stress. Mr. Li began attending a church service that met in Mr. Gao’s home. Id. He
became a Christian, and was baptized on August 17, 2008.
In February 2010, Mr. Li came to this country as a tourist. During his visit, he
“attend[ed] Sunday service in the local Chinese Christian church.” Id. There, he
“collected and brought some Gospel materials,” which he took with him back to
China. Id.
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On March 3, 2010, two Chinese police officers came to Mr. Li’s business.
They took him to Public Security Bureau headquarters where police officers
questioned him. They asked him if he knew Haijun Gao, and he said yes. The
officers informed him that Mr. Gao had been arrested for distributing illegal
materials from overseas, and that Mr. Gao had admitted to receiving these materials
from Mr. Li. After Mr. Li denied that he had brought the materials to China as part
of an anti-Party, anti-government plot, one of the officers became angry and poured a
cup of water on his face.
The officers then questioned him about the church that met in Mr. Gao’s home.
When his answers proved unsatisfactory, one of the officers slapped him in the face
and struck him with his fist. Another officer struck him with his baton. Mr. Li stated
that as a result of the beating, his nose and mouth filled with blood.
The officers terminated the questioning and transferred him to a detention
center. Two days later, he was released after his wife paid a fine. As a condition of
release, Mr. Li signed a letter requiring him to report to a local police station every
week, to refrain from family church activities, not to leave his residence without
permission, and to be ready to be summoned at any time.
After being treated at a hospital, Mr. Li returned home to find that the police
had confiscated some of his discs and his computer. The police told him they were
continuing to investigate his case. With the help of a friend, Mr. Li escaped from
China and came to America in April 2010. After he left, the police came to arrest
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him several times, claiming that he was an unrepentant cult member and would be
sentenced to prison if they caught him.
An asylum officer reviewed Mr. Li’s application. The asylum officer found
Mr. Li’s story not credible because, among other things, he claimed that in February
2010 he obtained church materials when he went to church in California on a Sunday,
then flew back to China the next day (Monday), which was inconsistent with
evidence that he actually flew back to China on Sunday:
[Mr. Li] testified that one day prior to leaving for China, on Sunday,
February 21, 2010, he went to a Christian church . . . where he collected
certain church materials to take with him to China. When asked to
confirm the date, [Mr. Li] stated it was February 21, 2010. He was
asked if he and his son left on the same day to [return to] China, which
he confirmed. He was asked about the day and time difference in
China, and if he could have been mistaken about the day he went to
church. However, [Mr. Li] insisted that it was Sunday, February 21,
2010, and that he left for China on February 22, 2010, denying that it
was a different date or that he was mistaken. However, when
confronted with information that indicates that he left the United States
on February 21, 2010, [Mr. Li] was unable to explain this inconsistency.
. . . [Given the timing of flights to China, Mr. Li] could not have
attended a church service on Sunday February 21, 2010 since he was
traveling back to China on that day.
Id. at 128.
The asylum officer denied asylum and referred the case to the IJ. Before
Mr. Li testified at the IJ hearing, his counsel asked to modify his previous sworn
statement to omit the reference to his attendance at a “Sunday service” when he was
in California. Id. at 72. Mr. Li then testified, recounting a story similar to the one he
had presented in his asylum application.
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On cross-examination, Mr. Li was asked about the timing of his 2010 trip to
the United States and his return to China:
Q. And you’re sure you left on February 21st?
A. Yes. I left [the] United States on February 21, 2010.
Q. And when did you arrive back in China?
A. I arrived in China [on] February 22, 2010.
Q. Now when you originally filed for asylum, you told the asylum
officer that you left the United States February 22, 2010. Why did you
tell him that?
A. Yes. I realized that. That was because I could not remember very
clearly on that date. Secondly, I was very nervous on that day.
Q. So you couldn’t remember clearly and they asked you to verify and
you were adamant that you left on the 22nd. Isn’t that right?
A. First of all, I was very nervous again. I forgot to account for the
time difference between China and [the] United States.
Id. at 95-96.
He was questioned about his attendance at the church service during his tour in
California, and this time he said he went to a Saturday evening service rather than a
Sunday morning service, but he could not remember the name of the church:
Q. And when were the free times for shopping?
A. It was on February 20, 2010.
Q. What day of the week was that?
A. That’s a Saturday.
Q. And you said you went to church. When did you go to church?
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A. We went to an evening service.
Q. When? What day?
A. It was on the evening of February 20, 2010.
Q. Where did you go to church?
A. The actual[] address I cannot tell you. I don’t have it, but the tour
guide took me there. It was very close to my hotel.
Q. What was the name of the church?
A. I don’t know.
Q. Would it be Christian Shepherd Gospel Church?
A. I’m not sure. I only know it was a Christian church.
Q. Sir, you told the asylum officer that you went to the church called
Christian Shepherd Gospel Church. Would you say that’s correct?
A. Probably I was nervous at that time, but right now, I can’t really
remember what I told him.
Id. at 96-97.
The IJ found that Mr. Li was not a credible witness. He noted that Mr. Li’s
testimony was “vague, evasive, and at times defensive.” Id. at 53-54. He further
determined that the inconsistencies and omissions in his testimony “far
outweigh[ed]” considerations such as “elapsed time, translation issues, and cultural
norms.” Id. at 54. In particular, the IJ singled out Mr. Li’s confusion about when he
attended the California church service before flying back to China, stating he was
“not convinced by [Mr. Li’s] assertion that he attended church on Saturday evening
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rather than Sunday as [Mr. Li] did not offer any explanation for how he confused a
Saturday evening service with a Sunday church service.” Id. He also cited Mr. Li’s
defensiveness about the name of the church he claimed to have attended in
California, and his inability to explain how he was able to leave China while criminal
charges were pending against him.
The IJ further found that Mr. Li had failed to provide sufficient independent
evidence to corroborate his application. With regard to past persecution, Mr. Li
submitted a fine receipt from the police department and “a hospital record indicating
that he was held for observation on March 5, 2010, after complaining of dizziness,
headache, difficulty working and standing still, and belly pain,” which further
indicated that he “had bruises, swelling, and stomach pain and that he got better
within a day.” Id. at 55. The IJ concluded this evidence provided only limited
corroboration for Mr. Li’s claims.
With regard to future persecution, the IJ concluded that Mr. Li had failed to
provide evidence sufficient to corroborate his claim that he is a Christian. Mr. Li
brought a deacon from his church with him to the hearing, but the agency objected to
her testimony because it had been provided no information about her. The IJ did not
permit the deacon to testify, but he permitted Mr. Li’s attorney to make an offer of
proof. According to the attorney, she would have testified concerning Mr. Li’s
participation at the Denver Chinese Evangelical Free Church and to her belief that
Mr. Li is a Christian. The IJ stated he would give the proffered testimony the
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appropriate weight. But in his decision, he noted that Mr. Li “ha[d] not provided any
evidence that [the deacon] herself actually belongs to any church,” and had not
“provided any affidavits from members of his house church in China or from church
leaders in Denver.” Id. at 56. The IJ further opined that even if Mr. Li had
sufficiently demonstrated that he was a Christian, “he gave no indication that he
would object to attending a registered church in China as opposed to an unregistered
one.” Id.
Given Mr. Li’s failure to meet his burden concerning asylum, the IJ concluded
he also failed to show entitlement to withholding of removal. And his CAT claim
failed because he “neither alleged past torture nor asserted a fear of torture in the
future” and “[t]here is no evidence the Chinese government is currently engaged in
the systematic gross, flagrant, or mass violation of human rights or that the
government acquiesces to such violations.” Id. at 56.
On appeal, in a brief decision by a single member, the BIA found that the IJ’s
adverse credibility finding was not clearly erroneous and therefore upheld the denial
of Mr. Li’s asylum and withholding of removal claims. The BIA further upheld the
denial of his CAT claim, finding he had not met his burden of proof and had failed to
present evidence independent of his testimony to support his claim.
ANALYSIS
Where, as here, a single member of the BIA issues a brief order affirming the
IJ’s decision, we review the BIA’s order as the final agency determination and limit
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our review to the grounds specifically relied upon by the BIA. Diallo v. Gonzales,
447 F.3d 1274, 1279 (10th Cir. 2006). But when the BIA incorporates the IJ’s
rationale, “[w]e may consult the IJ’s decision to give substance to the BIA’s
reasoning.” Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). We review
the BIA’s legal conclusions de novo and its factual determinations, including
credibility determinations, for substantial evidence. See id.; Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006) (substantial evidence standard applies to
credibility determinations). “[T]he BIA’s findings of fact are conclusive unless the
record demonstrates that any reasonable adjudicator would be compelled to conclude
to the contrary.” Rivera–Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012)
(internal quotation marks omitted).
The asylum standard is well established:
To qualify for asylum, the applicant must be a refugee. A refugee is
unable or unwilling to return to his or her country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion. These five categories are called protected grounds.
An applicant can obtain refugee status: (1) through evidence of a
well-founded fear of future persecution on account of a protected
ground; (2) through a showing of past persecution on account of a
protected ground, which gives rise to a rebuttable presumption of having
a well-founded fear of future persecution on account of a protected
ground; or (3) through a showing of past persecution so severe as to
provide a compelling argument against removal, even though there is no
danger of future persecution on the basis of a protected ground.
Rodas-Orellana v. Holder, 780 F.3d 982, 986 (10th Cir. 2015) (citations and internal
quotation marks omitted).
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“As for withholding of removal, the [Immigration and Nationality Act]
prohibits removal “if the Attorney General decides that the alien’s life or freedom
would be threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” Id. (internal quotation
marks omitted). “The burden of proof for withholding of removal is higher than for
asylum.” Id. “For withholding, an applicant must prove a clear probability of
persecution on account of a protected ground.” Id. (internal quotation marks
omitted).
“Article 3 of the Convention Against Torture prohibits the return of an alien to
a country where it is more likely than not that he will be subject to torture by a public
official, or at the instigation or with the acquiescence of such an official.”
Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (brackets and internal
quotation marks omitted).
1. Adverse Credibility Finding
Mr. Li challenges the IJ’s finding, upheld by the BIA, that he did not testify
credibly concerning the past persecution he allegedly suffered in China. The
trier of fact [for an asylum claim] may base a credibility determination
on the . . . candor, or responsiveness of the applicant . . . , the inherent
plausibility of the applicant’s . . . account, the consistency between the
applicant’s . . . written and oral statements . . . , the internal consistency
of each such statement, [and] the consistency of such statements with
other evidence of record. . . , and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or any other
relevant factor.
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8 U.S.C. § 1158(b)(1)(B)(iii).
Mr. Li argues that his confusion about the dates when he attended church and
returned to China were minor discrepancies caused by stress that involved events
three years before the IJ hearing. He downplays the serious inconsistencies the
asylum officer, the IJ, and the BIA all noted concerning whether Mr. Li could have
gone to church when he said he did to obtain the literature that allegedly caused him
to be arrested. Mr. Li fails to offer a credible explanation concerning his confusion
between Sunday morning and Saturday night services.
Mr. Li also complains that the asylum officer was not present at the IJ hearing
to be cross-examined. But he fails to identify any specific cross-examination he
might have conducted that could have affected the outcome in this case.
Mr. Li further argues that the IJ and the BIA should not have discounted his
credibility based on his failure to explain how he was able to take a commercial flight
out of China while he was allegedly on probation and forbidden to travel. But in
response to the hole in his story, he presents only speculative explanations. See Pet.
Br. at 8 (stating someone at the travel agency that helped him get his visa “might very
well have . . . bribed one officer/official or more at the airport” and that “[t]his could
very well have been the case even though [the travel agent] did not work for the
Chinese government” (emphasis added)); 10 (“[Mr. Li] might not have been under
24/7 surveillance” and “it is surely plausible that [he] could have left China despite
having been under surveillance or monitored by the police”) (emphasis added). It
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was Mr. Li’s burden to establish the factual basis for his asylum application, and the
IJ and BIA did not err in concluding that he failed to patch the holes in his story
concerning his exit from China.
The IJ also noted Mr. Li’s failure to obtain affidavits from his fellow church
members or family members in China. Again, Mr. Li responds with speculation,
stating that had he been asked about this at the hearing, “[p]erhaps [he] would have
explained that his former church mates and he were afraid to correspond with one
another by mail.” Id. at 14. This falls short of a credible explanation for his failure
to submit evidence in support of his claims.
In sum, we might have reached a different conclusion concerning Mr. Li’s
credibility were we the finder of fact, but our exacting standard of review compels us
to defer to the IJ’s adverse credibility findings, upheld by the BIA, concerning
Mr. Li’s account of past persecution in China.
2. Lack of Corroboration
In light of this adverse credibility finding, the IJ further found that Mr. Li had
not presented sufficient corroborating evidence to sustain his claim. See 8 U.S.C.
§ 1158(b)(1)(B)(ii) (“The 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.” (emphasis added)).
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The BIA did not explicitly discuss the corroboration issue, at least not in the context
of Mr. Li’s asylum and withholding of removal claims.1
The BIA’s silence does not pose a problem in affirming the denial of asylum
based on past persecution, however. The BIA implicitly adopted the IJ’s finding that
Mr. Li failed to sufficiently corroborate his story of past persecution. See Sarr v.
Gonzales, 474 F.3d 783, 790 (10th Cir. 2007) (stating if the BIA “incorporated the
IJ’s reasoning, either expressly or by implication,” we may consider the IJ’s findings
as necessary to understand the BIA’s decision (emphasis added)). We reach this
conclusion for three reasons. First, the BIA referenced pages 8-10 of the IJ’s
decision, which included his discussion of corroborating evidence of past
persecution. Second, it referred to the “totality of the circumstances” in adopting the
IJ’s findings. Admin. R. at 2. Third, the BIA could hardly have reasoned from the
IJ’s adverse credibility finding that Mr. Li had failed to satisfy his burden of proof
concerning past persecution if it believed the other evidence he submitted was
sufficient to meet that very burden. We may therefore turn to the IJ’s findings,
implicitly adopted by the BIA, to supplement the BIA’s ruling on this issue.
Mr. Li contends that the fine receipt he submitted is consistent with his claim
that he was persecuted. But this argument misses the IJ’s point: of itself, the fine
receipt did not establish that the police actually detained and beat him, only that he or
1
The BIA did find that the independent evidence was insufficient to corroborate
Mr. Li’s CAT claim.
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his wife paid a fine. While the medical record is consistent with a beating at the
hands of police, it does not necessarily establish that the injuries described were
caused by such a beating, as opposed to some other cause. Although these records
provide some support for Mr. Li’s story, we cannot say that any reasonable
adjudicator would be compelled to conclude from them alone that his story was true.
We must therefore uphold the IJ and BIA’s conclusions that there was insufficient
proof of past persecution.
3. Fear of Future Persecution
The IJ also found that Mr. Li failed to provide corroborating evidence for his
contention that he had a well-founded fear of future persecution. Although Mr. Li
challenged this finding before the BIA, the BIA failed to address the issue. The BIA
gave no indication it had considered whether Mr. Li demonstrated a well-founded
fear of future persecution.
We can only affirm the BIA’s single-member decision based on grounds it
addressed. Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007). We cannot
supply our own, additional reasons for affirming the BIA’s decision. Mickeviciute v.
INS, 327 F.3d 1159, 1162-63 (10th Cir. 2003). And, “[w]hen the BIA has failed to
address a ground that appears to have substance,” remand for further proceedings is
appropriate. Rivera–Barrientos, 666 F.3d at 645.
Because Mr. Li’s future-persecution arguments have sufficient substance, the
best course is to remand for additional consideration and discussion by the BIA of
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that claim. In its decision, the BIA rejected only Mr. Li’s individualized allegations
of past persecution as not credible. Admin. R. at 2. Even if these allegations were
not credible, however, he still could have established a likelihood of future
persecution by independent evidence showing that he was a member of a group
subject to a pattern or practice of persecution, and that he had a reasonable fear of
persecution because he belongs to such a group. See 8 C.F.R. § 1208.13(b)(2)(iii).
The IJ acknowledged that “[t]he 2011 International Religious Freedom Report
for China confirms that, in some areas of the country, police arrest and punish
members of unregistered churches.” Admin. R. at 56. But he found insufficient
corroborating evidence that Mr. Li is a Christian or that he was unwilling to attend a
registered church. Mr. Li’s challenges to these findings, presented to the BIA and to
us, have some substance. We have admonished the immigration courts to exercise
caution in rejecting aliens’ assertions of religious faith. See Yan v. Gonzales,
438 F.3d 1249, 1252-56 (10th Cir. 2006). The record contains no evidence that
unregistered house churches are religiously identical to those registered with the
government, or that Mr. Li ever attended, or was willing to attend, a registered
church. Although these considerations may not ultimately justify relief for Mr. Li,
particularly in light of his burden to establish his eligibility for asylum, his arguments
are sufficiently substantial to require a remand for the BIA to articulate its reasons
for rejecting his future persecution claim.
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4. Withholding of Removal
The BIA rejected Mr. Li’s withholding claim in a single sentence: “Inasmuch
as [Mr. Li] has not testified credibly in support of his asylum application, he has not
established that he provided credible testimony and satisfied his burden of proof for
withholding of removal.” Admin. R. at 3. Withholding of removal claims are
concerned with the likelihood of future persecution. As we have noted, the BIA did
not address Mr. Li’s challenge to the IJ’s findings concerning future persecution.
For the same reasons that further proceedings are required concerning Mr. Li’s
asylum claim, we also reverse the denial of withholding relief and remand for further
proceedings.
5. CAT Claim
Mr. Li’s CAT claim rests primarily on the assertion that the police will torture
him if he returns to China because he was previously persecuted and because he left
the country while under police supervision. But these are precisely the allegations
that the IJ and the BIA found not credible and insufficiently corroborated. The BIA
made sufficient findings to support the denial of Mr. Li’s CAT claim, including the
lack of corroboration for that claim, and its decision is supported by substantial
evidence. We therefore affirm the denial of his CAT claim.
CONCLUSION
We affirm the BIA’s finding that Mr. Li failed to establish past persecution,
either by credible testimony or independent evidence, sufficient to satisfy his burden
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of proof concerning his asylum claim. We reverse the denial of asylum on the issue
of whether he faces a well-founded fear of future persecution, which the BIA did not
discuss, and remand for further proceedings concerning that claim. We also reverse
the denial of his claim for withholding of removal, and remand for further
proceedings on that claim. We affirm the denial of CAT relief. Petitioner’s motion
to proceed in forma pauperis is granted.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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