Liru Chen v. U.S. Attorney General , 245 F. App'x 894 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 17, 2007
No. 07-10774 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-391-064
LIRU CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 17, 2007)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Petitioner is a native and citizen of China. She arrived in the United States
at the Miami International Airport on August 9, 2003, without a passport, a
document authorizing her admission into this country, or anything indicating her
identity. She immediately applied for asylum, and, on August 11, 2003, a
Department of Homeland Security (“DHS”) Asylum Officer interviewed her.
Petitioner told the officer that she left China after being arrested and
detained for arguing with a government workers’ union over money. The
argument occurred on June 1, 2003, after she and 18 others had been laid off at a
government candy factory where they had been working. They had gone to the
union’s office to collect 350 yaun – the benefit they believed a government
contract entitled them to receive – but the union officials on duty gave them 200
yaun instead. An argument ensued, and the officials called the police. Petitioner
told the officials, and the police, that she would report the incident to the
newspaper. When she declined to sign a document stating that she would not
report the incident to the newspaper, the police gave her a beating, and then took
her to the police station. Her parents promptly bribed the police or the union
officials to get her out of the police station so she could see a doctor. After the
police released her so she could see a doctor, she fled to a relative’s residence. Her
journey to the United States began there.
The Asylum Officer denied petitioner’s asylum claim. The next day, August
12, the DHS issued a Notice to Appear, charging petitioner with removability as an
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immigrant not in possession of documents validating her entry or identifying her as
the person she purported to be. Eight days later, she appeared before an
Immigration Judge (“IJ”) for an initial hearing. When she told the IJ that she had
contacted an attorney, the IJ continued the hearing. The hearing resumed on
January 8, 2004, before another IJ. At that hearing, petitioner conceded
removability, and filed a formal application for asylum, withholding of removal
under the Immigration and Nationality Act (“INA”), and protection under the
Convention Against Torture (“CAT”). The same IJ heard the application on July
25, 2005.
At the July 25 hearing, petitioner testified that she left China due to a June 1,
2003 conflict with the Chinese government over the 200 yaun benefit she and 18
other workers received after being laid off at the candy factory where they
worked.1 She was the spokesperson for the group, and went with the group to the
union’s office, which represented the Chinese government, to claim the 350 yaun
per month benefit the government contract purportedly called for. Petitioner told
the union officials on duty that if they refused to reach a reasonable settlement with
her group, she would publicize the incident by speaking to local newspapers.
According to petitioner, the officials were afraid of publicity – because they were
1
Petitioner said she had been employed at the candy factor by the Chinese government
from 1996 until 2003.
3
corrupt, retaining for themselves part of the money due the laid-off employees.
The officials called the police. When she refused to sign a document
indicating that she would not go to the newspaper, the police beat her and took her
to the Fuzhou Prison. She was detained there for three days – until she escaped.
When her parents learned of her incarceration, they paid the police 3,000 yaun so
they could visit her for five hours at the prison.2 During the visit, she escaped
through a window and ran to a relative’s home. She hid there until her family and
relatives paid a snakehead, i.e., smuggler, $55,000 to enable her to travel to the
United States. She left China with her own passport, and traveled through
Thailand and three other countries she could not name before arriving in Miami.
She entered Miami without her passport because the snakehead told her to destroy
her passport so she would have nothing to identify her when she arrived in the
United States.3
On cross-examination, petitioner said that after the police took her to Fuzhou
Prison, her parents paid the police 3,000 yaun so that could take her to a hospital.
2
Petitioner said that a “very good-hearted person” at the prison observed her suffering in
the prison, and told her parents that she was in custody there and was not being deprived of food
and water.
3
Petitioner introduced into evidence a birth certificate that had been notarized and issued
on September 8, 2003 – long after she left China – and mailed to her by her parents. Regarding
the birth certificate, petitioner testified initially that everyone in China had to have a birth
certificate. When confronted with the issuance date of September 8, 2003, she explained that
citizens had ID cards and that they could present the card at the notary office and obtain a
notarized birth certificate at any time.
4
Two policemen accompanied her to the hospital, and after she entered the building,
they stood guard outside, in front of the building. She escaped though a second
story window, climbed down a fire escape, and ran without stopping for 40
minutes until she reached the residence of some relatives. A medical booklet –
purportedly prepared by the physician who treated petitioner at the hospital and
presented to the IJ – contained no mention of her escaping from the hospital.4 The
booklet indicated that, at the time the physician saw her, she was bleeding from the
nose and neck, her body was covered with bruises, her face was swollen and her
teeth were broken, and she was suffering from headaches and vomiting.
Notwithstanding this bodily condition, she testified that she was able to escape
from the hospital and to the relatives home without stopping.
At the conclusion of the hearing, the IJ denied petitioner’s claim for asylum,
withholding of removal, and CAT protection, and ordered her removal. The IJ
began his findings by stating that she had not established her identity. He focused
on her birth certificate, indicating that she had not satisfactorily explained how it
could have been notarized and issued after she left China. Petitioner’s photograph
was attached to the certificate, but there was nothing in the record explaining that
the notary was aware of petitioner or her likeness so as to certify that the person in
the photograph was the person to whom there was a birth certificate on file.
4
Petitioner did not indicate how she happened to obtain the booklet after leaving China.
5
Second, the IJ concluded that petitioner had not established a case for asylum. She
had shown no political opposition on her part to the Chinese government, except
for the fact that, according to her, she had been denied the lay-off benefit she
thought she and the others were due. After noting that the Chinese government is a
pervasive force in Chinese society, exerts great power and influence, and controls
the media, the IJ found it unlikely that given the close relationship between the
candy factory and the union officials and the government, the police would have
been so concerned about what petitioner might tell the news media – which the
government also controlled – that they would have arrested and beaten her and
held her in prison.5 The IJ therefore concluded that all petitioner had shown was
that she had been involved in a monetary dispute with her employer. In her asylum
application, she claimed that her threat to publicize the dispute, i.e., the officials’
refusal to pay the 350 yaun she and the others demanded, constituted a statement of
a political point of view. The IJ found that it was not.
Assuming, however, that the threat amounted to the expression of a political
opinion, the IJ found that the petitioner’s testimony in support of that protected
ground was not credible. For example, there was a major discrepancy between her
statements to the Asylum Officer on August 11, 2003, and what she put in her
5
The inference to be drawn from petitioner’s testimony is that had she not escaped from
the hospital, she would have been detained in prison indefinitely.
6
asylum application and subsequently told the IJ at the July 25 hearing. She told the
Asylum Officer that she had never been arrested. In her asylum application and at
the July 25 hearing, however, she said that she had been arrested by the police and
detained for three days – during which time the police beat her severely and
deprived her of food and water. She attempted to explain this crucial discrepancy
by saying that she was confused during her interview with the Asylum Officer.
The problem with her explanation was she appeared fully able to understand the
Officer’s questions and to answer them coherently. The IJ found implausible her
testimony that she climbed out of a second story window (at the hospital) and ran
without stopping for 40 minutes notwithstanding her very debilitating physical
condition, which would have made such a feat nearly impossible. Also implausible
was her testimony that she was in police custody while at the hospital. The police
were purportedly there to prevent her from escaping, yet they took no steps to
prevent an escape. They simply stood idly outside the hospital.6
Petitioner timely appealed the IJ’s decision to the Board of Immigration
Appeals (“BIA”). On February 2, 2007, the BIA affirmed. Petitioner then
petitioned this court for review.
We dismiss her petition to the extent that it seeks review of the denial of
6
These are the principal discrepancies between what petitioner told the Asylum Officer
and what she stated later. The IJ accurately cited other discrepancies which undermined her
credibility.
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withholding of removal and CAT protection. Although her brief to the BIA
referred to such denial, the brief did not explain, or present any reason, why that
ruling should be set aside. We lack jurisdiction to review a claim not presented to
the BIA. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). See also Camacho-Salinas
v. U.S. Att’y Gen., 460 F.3d 1343, 1347 n.1 (11th Cir. 2006); Rowe v. Schreiber,
139 F.3d 1381, 1382 n.1 (11th Cir. 1998) (stating that issues not clearly raised in
the briefs are considered abandoned). We turn, then, to what we are able to
review: the BIA’s denial of petitioner’s asylum claim.7
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of DHS or the
Attorney General has discretion to grant asylum if the alien meets the INA’s
definition of a “refugee.” See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A
“refugee” is
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 . . .
7
In this case, because the BIA adopted the IJ’s decision, we review the IJ’s decision
Nreka v. U.S. Att’y Gen.,408 F.3d 1361, 1368 (11th Cir. 2005). We review the IJ’s legal
determinations de novo, Ruiz v. U.S. Att’y. Gen., 440 F.3d 1247, 1254 (11th Cir. 2006), and the
IJ’s factual findings under the substantial evidence test. We uphold those findings if supported
by “reasonable, substantial, and probative evidence on the record considered as a whole.” Id. at
1254-55.
8
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (emphasis added). The asylum
applicant carries the burden of proving statutory “refugee” status.
8 C.F.R. § 208.13(a); Ruiz v. U.S. Att’y Gen., 440 F.3d at 1257. To establish
asylum eligibility, the alien must, with specific and credible evidence, establish (1)
past persecution on account of a statutorily listed factor, or (2) a “well-founded
fear” that the statutorily listed factor will cause such future persecution. 8 C.F.R.
§ 208.13(a), (b); Ruiz, 440 F.3d at 1257.
Petitioner contends that her statement that she would tell the newspaper
about the union officials’ refusal to pay her and the members of her group 350
yaun constituted the expression of a political opinion. We disagree, for the reason
the IJ gave: the statement concerned a dispute with her employer over the amount
of the benefit they were to receive – according to a government contract -- after
having been laid off work.
Assuming that petitioner’s statement constituted an expression of political
opinion, the IJ rejected her testimony – about making the statement – because he
found the testimony not credible. We review the IJ’s credibility finding under the
substantial evidence test. “If an IJ wishes to make an adverse credibility finding,
he must do so explicitly.” Niftaliev v. U.S. Att’y Gen., 487 F.3d 834, 840 (11th
Cir. 2007). “Once an adverse credibility finding is made, the burden is on the
applicant alien to show that the IJ’s credibility decision was not supported by
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‘specific, cogent reasons,’ or was not based on substantial evidence.” Ruiz v. U.S.
Att’y Gen., 440 F.3d at 1255. “Indications of reliable testimony include
consistency on direct examination, consistency with the written application, and
the absence of embellishments.” Id. at 1255. An adverse credibility finding alone
is sufficient to support the denial of an asylum application; however, an adverse
credibility finding does not alleviate the IJ’s duty to consider other evidence
produced by the applicant. Id.The IJ’s finding that petitioner lacked credibility was supported by evidence
showing that with respect to the sole basis of her asylum claim, what she told the
Asylum Officer was inconsistent with what she stated in her asylum application
and at the July 25, 2005 hearing. She told the Asylum Officer that she had never
been arrested; yet she went into considerable detail – in her application and at the
hearing – describing an arrest and beating that took place on June 1, 2003. The
record supports the IJ’s findings regarding other, less material inconsistencies. For
example, the medical booklet she presented contained no mention of her escaping
from the hospital while being treated there. The evidence regarding the extent of
her injuries was also inconsistent with her testimony that she ran without stopping
for 40 minutes following her escape.
PETITION DISMISSED, in part; DENIED, in part.
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