Xi Chen v. U.S. Attorney General , 239 F. App'x 470 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-14707 MAR 20, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A97-390-848
XI CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
No. 06-14708
Non-Argument Calendar
________________________
Agency No. A97-390-850
XI TUO CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 20, 2007)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Pro se Petitioners, Xi Chen and Xituo Chen, who are brothers and both
natives and citizens of China, petition this Court to review the decision of the
Board of Immigration Appeals (“BIA”) affirming without opinion an Immigration
Judge’s (“IJ’s”) removal order and denial of asylum and withholding of removal
under the Immigration and Nationality Act (“INA”), and relief under the United
Nations Convention on Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (“CAT”). Petitioners argue that the IJ’s adverse credibility finding
was not supported by substantial evidence, and that they established a fear of future
persecution, sufficient to warrant asylum, if they return to China. After careful
review, we affirm.1
1
Because we conclude Petitioners have not met their burden to establish their eligibility for
asylum, we also conclude that they failed to meet the higher standard for withholding of removal
under the INA or CAT relief. Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir.2001).
2
When the BIA adopts the IJ’s decision, we review the IJ’s decision. Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “To the extent that the
[IJ’s] decision was based on a legal determination, [our] review is de novo.” D-
Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). “The IJ’s
findings of fact are reviewed under the substantial evidence test,” meaning that we
must affirm the IJ’s decision “if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Antipova v. U.S. Att’y
Gen., 392 F.3d 1259, 1261 (11th Cir. 2004). Put another way, we will reverse the
IJ only upon finding that the record compels that conclusion. Fahim v. U.S. Att’y
Gen., 278 F.3d 1216, 1218 (11th Cir. 2002).
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 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
unwilling to return to his home country or to avail himself of that country’s
protection “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).
3
The asylum applicant carries the burden of proving statutory “refugee”
status. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant
satisfies this burden by showing, with specific and credible evidence: (1) past
persecution on account of a statutorily listed factor, or (2) a “well-founded fear”
that his statutorily listed factor will cause future persecution. Al Najjar, 257 F.3d
at 1287; 8 C.F.R. § 208.13(a), (b). “To establish asylum based on past
persecution , the applicant must prove (1) that she was persecuted, and (2) that the
persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448
F.3d 1229, 1236 (11th Cir. 2006) (citations omitted). “To establish eligibility for
asylum based on a well-founded fear of future persecution, the applicant must
prove (1) a ‘subjectively genuine and objectively reasonable’ fear of persecution,
that is (2) on account of a protected ground.” Id. (citations omitted).
If an alien provides credible testimony, it may be sufficient, without
corroboration, to establish his eligibility for relief from removal. Chen, 463 F.3d at
1231. However, an IJ’s denial of asylum relief can be based solely on an adverse
credibility determination if the alien does not produce corroborating evidence. Id.
If the alien does provide corroborating evidence, the IJ may not rely solely on an
adverse credibility determination and must consider the corroborating evidence.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). Once the IJ
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explicitly finds that the alien lacks credibility, the burden shifts to the alien to show
that the IJ’s credibility determination “was not supported by specific, cogent
reasons or was not based on substantial evidence.” Chen v. U.S. Att’y Gen, 463
F.3d 1228, 1231 (11th Cir. 2006). Indications of reliable testimony include
consistency on direct examination, consistency with the written asylum
application, and the absence of embellishments. See In re B-, 21 I & N Dec. 66, 70
(BIA 1995).
Here, the IJ made an adverse credibility finding, for which she gave specific
reasons, including that (1) Xi Chen’s testimony before the IJ conflicted with his
testimony at his credible-fear interview and with statements he made in his asylum
application regarding how the Chinese officials discovered his wife’s second
pregnancy, when he learned that his wife had been sterilized, and the name of the
friend at whose house the Chens hid from the Chinese authorities; and (2) Xituo
Chen’s testimony indicated that he did not know some of the facts that he and his
brother were relying on in support of their claim for asylum. These
inconsistencies, as well as the Chens’ failure to provide detailed testimony in aid of
their asylum claims, support the IJ’s adverse credibility findings.
In addition to making adverse credibility findings, the IJ considered the
Chens’ corroborating evidence, which included “notarial birth certifications” and
5
an X-ray and hospital records associated with Xi Chen’s wife’s alleged involuntary
sterilization. The IJ stated that she questioned the identity of each petitioner
because although the petitioners left China with their own passports, they had
failed to present legitimate passports in support of their petitions. Moreover, the IJ
noted, among other indications of a lack of authenticity, that the Petitioners’ birth
certifications were issued simultaneously and after the Petitioners left China. As
for Xi Chen’s wife’s X-ray and hospital report, the IJ observed that “the red seal
[on the X-ray] does not consistently follow through from the paper document onto
the photograph,” and that the report did not establish that the existence of a forced
sterilization. On this record, the corroborating evidence does not compel us to
conclude that the IJ erred by finding that Xi and Xituo failed to carry their burden
of showing that they had either suffered past persecution or had a well-founded
fear of future persecution. Accordingly, we deny the petitions for review.
PETITIONS DENIED.
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