Hua Wu Wu v. U.S. Attorney General , 687 F. App'x 793 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14708
Non-Argument Calendar
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Agency No. A073-181-788
HUA WU WU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 1, 2017)
Before MARCUS, ROSENBAUM, and FAY, Circuit Judges.
PER CURIAM:
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Petitioner Hua Wu Wu is a native and citizen of China who claims that if he
is removed to China, he will be persecuted or tortured because of his religion
(Christianity) and because he violated China’s “one-child” family-planning policy
by having three children in the United States. During removal proceedings, Wu
applied for asylum, withholding of removal, relief under the United Nations
Convention Against Torture (“CAT”), and cancellation of removal. An
Immigration Judge (“IJ”) denied relief on each claim and ordered Wu removed to
China. The Board of Immigration Appeals (“BIA”) affirmed the denial of relief.
Wu petitions this Court for review of these decisions.
After careful review, we deny the petition in part, grant it in part, and
dismiss it in part. We deny the petition as to Wu’s claims of past religious
persecution because the IJ’s adverse credibility determination is supported by
substantial evidence in the record. However, we grant the petition with regard to
Wu’s claim of future religious persecution because the BIA failed to consider
whether Wu’s other evidence was sufficient to meet his burden of proof
notwithstanding his lack of credibility. We dismiss the petition as to his remaining
claims. We are unable to review his family-planning claim because he failed to
raise this issue before the BIA, and we lack jurisdiction to review the BIA’s
discretionary decisions in denying cancellation of removal.
I.
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Wu, a native and citizen of China, entered the United States without
inspection at an unknown place and time. He filed a request for asylum based on
his religion (Christianity) in July 1993. He was interviewed by an asylum officer
in 2007. Thereafter, the Department of Homeland Security initiated removal
proceedings, charging Wu with removability for being present in the United States
without authorization. Wu admitted the allegations against him and conceded
removability. He renewed his application for asylum and also applied for
withholding of removal, relief under CAT, and cancellation of removal. Wu
claimed that he would be persecuted in China based both on his religion and on his
violation of China’s family-planning policies.
In support of his claims, Wu submitted evidence. This evidence included
(a) country reports; (b) a letter dated November 20, 2008, from Changle City
Meihua Town Christian Church in China, which stated that Wu had “accepted
Jesus Christ as his Savior in December 1989, and he participated in gathering
activities of this church”; (c) a letter dated February 18, 2007, from the pastor of
the New Hope Baptist Church in the United States, who wrote that he had known
Wu and his family for almost five years and that they were active in the church;
(d) a letter dated January 11, 2009, from the pastor of the Church of Grace to
Fujianese in New York, who wrote that Wu had attended Sunday service since
November 16, 2008, and had “completed the required salvation course at [the]
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church”; (e) images of Wu’s religious activities in the United States; (f) a letter
from Wu’s mother, who wrote that Wu had accepted Jesus Christ as his savior in
1989 and that, in her remote town in China, there were conflicts between the
government and the churches; and (g) a sworn affidavit from Wu’s brother-in-law,
who stated that he had observed Wu attend religious gatherings at the Church of
Grace in New York and that Wu had told him about participating in underground
church activities in China.
Wu appeared before an IJ for a merits hearing on his claims in June 2010.
After hearing testimony from Wu and his brother-in-law, the IJ denied all of Wu’s
claims. Notably, the IJ made an adverse credibility determination, finding Wu’s
testimony inconsistent or difficult to pin down on certain details. Wu appealed the
IJ’s decision to the BIA, which remanded the matter back to the IJ for further
proceedings and a fresh credibility determination.
On remand, the government submitted a set of notes purportedly made by
the asylum officer at Wu’s interview in 2007. The government also submitted
more recent country reports. The IJ conducted a second merits hearing in January
2012. After hearing additional testimony from Wu, the IJ again made an adverse
credibility determination and denied his applications for asylum, withholding of
removal, CAT relief, and cancellation of removal. In light of the adverse
credibility determination, the IJ concluded that Wu had failed to establish past
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persecution. As to future persecution, the IJ concluded that Wu’s testimony did
not credibly establish that he openly practiced his religion, but that, in any case, the
evidence did not show that he would be subject to persecution based on his religion
on his return. With regard to Wu’s application for cancellation of removal, the IJ
found that Wu had not demonstrated either good moral character or exceptional
and extremely unusual hardship to his United States citizen children. The IJ also
concluded that he would deny cancellation in Wu’s case as a matter of discretion
even if Wu had met the other requirements.
Wu again appealed to the BIA, which affirmed the denial of asylum,
withholding of removal, CAT relief, and cancellation of removal. The BIA
affirmed the IJ’s adverse credibility determination, finding “significant
inconsistencies between the respondent’s testimony at the last merits hearing and
his prior testimony, his asylum application, and his interview with the asylum
officer.” “Most significant” to the BIA was the fact that, “at the hearing in 2012,
[Wu] testified that in 1992, he was taken from church services by police, separated
from his parents, detained for 3 days, and beaten.” “However,” the BIA explained,
“this is the first time he mentioned this central event supporting his claim of
religious persecution,” despite three prior opportunities. The BIA also found that
Wu’s prior statements concerning his religion were vague and did not indicate past
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persecution and that there were inconsistencies in his testimony on how he came to
the United States.
Concluding that the adverse credibility determination alone was sufficient to
support the denial of Wu’s religious-persecution claims, the BIA did not address
the IJ’s findings as to future persecution assuming Wu’s credibility. The BIA
found that Wu’s claim based on China’s family-planning policies had been waived
because he failed to raise the issue in his brief to the BIA. As for cancellation of
removal, the BIA agreed with the IJ that Wu had not established the requisite
hardship to his children and with the IJ’s decision to deny cancellation of removal
as a matter of discretion. Wu now brings this petition for review.
II.
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopts the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir.
2007). Where the BIA agrees with the IJ’s reasoning, we review the decisions of
both the BIA and the IJ to the extent of the agreement. Gonzalez v. U.S. Atty.
Gen., 820 F.3d 399, 403 (11th Cir. 2016). “We do not consider issues that were
not reached by the BIA.” Id.We review factual determinations, which include credibility determinations,
under the substantial-evidence test. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
1254-55 (11th Cir. 2006). We must affirm the agency’s decision if it is supported
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by reasonable, substantial, and probative evidence in light of the record as a whole.
Id. We view “the record evidence in the light most favorable to the agency’s
decision and draw all reasonable inferences in favor of that decision.” Id. at 1255(quotation marks omitted). For a finding of fact to be reversed, the record must
“compel[]” reversal. Id.We review our subject-matter jurisdiction de novo. Gonzalez-Oropeza v.
U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We are obligated to inquire
into our subject-matter jurisdiction whenever it may be lacking. Lenis v. U.S. Att’y
Gen., 525 F.3d 1291, 1292 (11th Cir. 2008).
III.
An applicant for asylum must meet the Immigration and Nationality Act’s
definition of a refugee. See 8 U.S.C. § 1158(b)(1). The definition of “refugee”
includes
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that 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.
8 U.S.C. § 1101(a)(42)(A). Thus, in order to meet the definition of a refugee, the
applicant “must, with specific and credible evidence, demonstrate (1) past
persecution on account of a statutorily listed factor, or (2) a well-founded fear that
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the statutorily listed factor will cause future persecution.” Ruiz, 440 F.3d at 1257(internal quotation marks omitted).
In order to support a claim for withholding of removal, a petitioner must
show that it is more likely than not that he will be persecuted on account of a
protected ground on his return to the country in question. 8 C.F.R. § 208.16(b)(2).
The burden of proof for withholding of removal is more stringent than the standard
for asylum relief, so the failure to establish the asylum standard likewise precludes
granting withholding of removal. See Ruiz, 440 F.3d at 1257. To support a claim
for CAT relief, a petitioner must show that it is more likely than not that he will be
tortured if returned to his home country. D-Muhumed v. U.S. Att’y Gen., 388 F.3d
814, 819 (11th Cir. 2004).
An applicant’s testimony, if credible, may be sufficient to sustain his burden
of proof even without corroborating evidence. Ruiz, 440 F.3d at 1255.
Conversely, if the applicant relies solely on his own testimony, an adverse-
credibility determination alone may be sufficient to support the denial of an
application. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). “If,
however, the applicant produces other evidence of persecution, whatever form it
may take, the IJ must consider that evidence, and it is not sufficient for the IJ to
rely solely on an adverse-credibility determination in those instances.” Id. “An
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adverse credibility determination does not alleviate the IJ’s duty to consider other
evidence produced by an asylum applicant.” Id.“If the IJ finds an asylum applicant not credible, the IJ must make an explicit
adverse credibility finding and offer specific, cogent reasons for the finding.”
Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049 (11th Cir. 2009). In challenging
the IJ’s credibility determination, the applicant must demonstrate that the decision
was not supported by “specific, cogent reasons” or is not based on substantial
evidence. Id. Testimony may be found to lack credibility if it is inconsistent
internally or with the application or other evidence, or if there are significant
omissions. Ruiz, 440 F.3d at 1255.
Wu presents three main challenges to the denial of his claims of persecution:
(1) the IJ and BIA failed to offer specific, cogent reasons to support the adverse
credibility determination; (2) Wu could still establish a claim of future religious
persecution, notwithstanding a lack of credibility, based on the other corroborating
evidence he presented; and (3) the IJ and BIA erred in denying his claim based on
China’s family-planning policies. We address each contention in turn.
A.
Wu first argues that the IJ’s adverse credibility finding is not supported by
specific, cogent reasons. He claims that both his 1993 asylum application and the
asylum interview notes from 2007 were unreliable sources on which to base a
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credibility determination. In addition, Wu argues that the BIA and IJ relied on
“minor issues” to discredit him.
We disagree. The IJ and BIA gave specific, cogent reasons for finding Wu
not credible, and those reasons are supported by substantial evidence in the record.
The IJ and the BIA both highlighted a material inconsistency between Wu’s
testimony at the 2012 merits hearing and his other prior statements at the 2010
merits hearing, in his interview with the asylum officer in 2007, and on his asylum
application.
As the BIA explained, Wu testified for the first time at the 2012 merits
hearing that, before he came to the United States from China, he was taken from
church services by police, separated from his parents, detained for 3 days, and
beaten. But Wu had failed to mention this significant event, central to his claim of
religious persecution, at any point before the second merits hearing. In fact, in the
asylum interview, Wu indicated that he had been detained once for fishing but
otherwise had had no problems.
Wu gave no explanation when the IJ asked for a reason for the omission, and
he provided no corroboration of his detention. This significant omission relates
directly to Wu’s claim of past religious persecution and provides substantial
evidence to support an adverse credibility determination. See Forgue, 401 F.3d at
1287 (finding substantial evidence for an adverse credibility determination where,
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prior to the hearing, the asylum applicant had never mentioned instances of
persecution based on his political activities); see also Shkambi, 584 F.3d at 1051–
52 (finding substantial evidence for an adverse credibility determination where the
applicant had failed to mention in an credible-fear interview “the most severe
allegations of mistreatment found in his asylum application and hearing
testimony”).
Wu contends that both the asylum application and the interview notes from
his asylum interview cannot be given much weight in evaluating his credibility
because they are unreliable. But Wu acknowledged that he had failed to mention
his alleged detention in the asylum interview, so the notes are unnecessary to
establish that omission. And even disregarding the asylum application and
interview notes, Wu failed to mention his alleged detention in his first merits
hearing. Wu does not address why the IJ could not have reasonably relied on his
prior hearing testimony to support the credibility determination.
Furthermore, additional aspects of Wu’s testimony support the IJ’s adverse
credibility determination, even if they were “minor” issues that, standing alone,
may not have been sufficient to ground that determination. 1 As the BIA noted,
1
Although the REAL ID Act, applicable to asylum claims filed on or after May 11, 2005,
provides that inconsistencies need not go to the heart of the claim, we have not resolved whether
the same rule holds for pre-REAL ID Act applications, such as Wu’s. See Shkambi, 584 F.3d at
1049. Nevertheless, we need not resolve that issue in this case because, as the BIA indicated, the
“most significant” basis for the adverse credibility determination relates directly to Wu’s claims
of persecution.
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Wu’s testimony was inconsistent regarding how he arrived in the United States,
and some of his responses regarding his religion were vague. Accordingly, we
disagree that the IJ and BIA improperly relied on minor issues in evaluating Wu’s
credibility, and we conclude that substantial evidence supports the agency’s
specific, cogent reasons for making an adverse credibility determination.
Apart from challenging the adverse credibility determination, Wu does not
contend that the IJ or BIA erred in finding that he failed to establish past
persecution on account of his religion. Accordingly, we deny the petition for
review as to his claims based on past persecution.
B.
Wu next argues that, even if his claim for past religious prosecution fails
because the BIA discredited his testimony, he still could establish a claim of future
persecution based on other evidence of his Christian beliefs and practices in the
United States and of China’s pattern and practice of persecuting Christian
believers.
The BIA denied Wu’s religious-mistreatment claims based solely on the IJ’s
adverse-credibility determination. But, as explained above, “if the applicant
produces other evidence of persecution, whatever form it may take, the [agency]
must consider that evidence, and it is not sufficient for the [agency] to rely solely
on an adverse credibility determination in those instances.” Forgue, 401 F.3d at
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1287. Here, Wu produced other evidence beyond his own testimony, in the form
of letters from his family members and from churches he attended, indicating that
he was an openly practicing Christian in the United States. He also presented
country-condition evidence regarding the harsh treatment of attendees of
underground Christian churches in China. Because Wu produced corroborating
evidence bearing upon his claim of religious persecution, the BIA erred by relying
solely on the adverse credibility determination to affirm the denial of Wu’s claims
for asylum, withholding of removal, and CAT relief. See id.As the BIA did not address whether Wu’s additional evidence established
his eligibility for relief from removal, notwithstanding the adverse credibility
determination, we cannot do so in the first instance. See Gonzalez, 820 F.3d at 403
(“We do not consider issues that were not reached by the BIA.”); Gonzales v.
Thomas, 547 U.S. 183, 184-87 (2006) (holding that federal courts are not entitled
to pass judgment on issues the agency did not address). Accordingly, we grant
Wu’s petition for review as to this issue, and we remand for the BIA to consider
whether Wu’s additional evidence regarding religious persecution established his
eligibility for relief from removal, despite the adverse credibility determination.
C.
Finally, Wu argues that the BIA and IJ erred by rejecting his claim of future
persecution based on his violation of China’s family-planning policy by fathering
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three children in the United States. Because Wu failed to challenge the IJ’s denial
of this claim in his appeal to the BIA, however, we lack jurisdiction to consider
this issue on appeal. See Amaya-Artunguaga v. U.S. Att’y Gen., 463 F.3d 1247,
1250 (11th Cir. 2006) (holding that we lack jurisdiction to review claims that were
not raised in an appeal before the BIA); see also 8 U.S.C. § 1252(d)(1).
Accordingly, we dismiss the petition as to this issue.
IV.
Wu also challenges the denial of his application for cancellation of removal.
He asserts that he presented sufficient evidence to establish exceptional and
extremely unusual hardship to his United States citizen children so as to be eligible
for cancellation of removal.
Under 8 U.S.C. § 1229b(b)(1), the Attorney General has discretion to cancel
the removal of a person who demonstrates (1) continuous physical presence in the
United States of at least 10 years preceding the date of application; (2) good moral
character during that period; (3) a lack of certain criminal convictions; and
(4) exceptional and extremely unusual hardship to a qualifying relative.
Section 1252(a)(2)(B) however, prevents this Court from reviewing
discretionary decisions regarding cancellation of removal under § 1229b. See 8
U.S.C. § 1252(a)(2)(B). Specifically, we cannot review the BIA’s discretionary
determination that a petitioner has not met the “exceptional and extremely unusual
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hardship” standard for purposes of cancellation of removal. Martinez v. U.S. Att’y.
Gen., 446 F.3d 1219, 1222 (11th Cir. 2006); Gonzalez-Oropeza v. U.S. Att’y Gen.,
321 F.3d 1331, 1332–33 (11th Cir. 2003).
Although we retain jurisdiction to review “constitutional claims or questions
of law raised upon a petition for review,” see 8 U.S.C. § 1252(a)(2)(D), challenges
to the BIA’s hardship determination under § 1229b(b)(1) are not constitutional
claims or questions of law subject to review under that section. Alhuay v. U.S.
Att’y Gen., 661 F.3d 534, 549–50 (11th Cir. 2011); Martinez, 446 F.3d at 1222.
Moreover, “a garden-variety abuse of discretion argument,” such as a contention
that the BIA failed to weigh the evidence presented properly, does not amount to a
legal question under § 1252(a)(2)(D). Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d
1191, 1196–97 (11th Cir. 2008).
Here, we lack jurisdiction to review the agency’s discretionary
determination that Wu failed to meet § 1229b(b)(1)(D)’s hardship requirement.
We also lack jurisdiction to review the BIA’s alternative determination that Wu’s
application was due to be denied as a matter of discretion even if he had met the
eligibility requirements. Because Wu does not raise a constitutional claim or
question of law relating to the denial of his application for cancellation of removal,
we dismiss his petition for lack of jurisdiction as to this issue.
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PETITION DENIED IN PART; GRANTED IN PART; AND
DISMISSED IN PART.
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