Zhang, Xiu J. v. Mukasey, Michael B. , 260 F. App'x 930 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 11, 2007
Decided January 23, 2008
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-4153
XIU JUAN ZHANG, On Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A78-848-829
MICHAEL B. MUKASEY,
Attorney General of the United States,
Respondent.
ORDER
Facing removal for attempting to enter the United States with a false
passport, Xiu Juan Zhang applied for asylum, withholding of removal, and relief
under the Convention Against Torture, claiming that she fears arrest and torture in
her native China for helping her parents organize Falun Gong meetings. The
Immigration Judge (“IJ”) denied all forms of relief, finding Zhang not credible
primarily based on inconsistencies between her testimony at the removal hearing
and earlier sworn statements. The Board of Immigration Appeals (“BIA”) affirmed,
and Zhang petitions for review. Although some of the IJ’s reasons for disbelieving
Zhang involved mere speculation or conjecture, we conclude that the crux of the IJ’s
adverse credibility finding is supported by substantial evidence, and we deny the
petition for review.
No. 06-4153 Page 2
Background
Zhang, 32, comes from the city of Changle, in Fujian Province. She lived
there with her parents, who she says have practiced Falun Gong—including hosting
group meditation and video screenings in their home—since late 2000. Zhang
herself has never practiced Falun Gong, but she says she helped her parents by
handing out fliers and notifying neighbors about upcoming meetings.
On July 26, 2001, Zhang arrived at O’Hare Airport in Chicago. After an
immigration officer recognized her passport as false, Zhang made a series of sworn
statements, through an interpreter, in response to his questions. At first she
explained that she fled China because authorities had tried to arrest her after
discovering her association with Falun Gong. Later during the interview, though,
she acknowledged that she had never been arrested or even threatened with arrest.
When the inspector then demanded to know whether Zhang had been “lying” when
she said that the police “tried to arrest” her, she responded: “Yes, but they arrested
other people. They arrested a couple of my neighbors. Once I found out I left the
country.”
Two weeks later, again with the aid of an interpreter, Zhang sat for her
credible-fear interview. When the asylum officer asked whether she had been
mistreated in China, Zhang said that she fled the country upon learning that the
police were going to arrest her for organizing her mother’s Falun Gong group. She
made no claim that she had been arrested in China before she fled.
Two and a half years later, Zhang filed her asylum application.1 For the first
time, she asserted that she had been arrested and detained for ten days in China.
That arrest, she said, was for “trying to escape China”; she did not link it to her
connection with Falun Gong.
Zhang’s story changed again at her removal hearing. There she explained
that her association with Falun Gong began causing her trouble in early June 2001
when she heard from a friend that the police had come to her house while she was
out. Zhang said she later learned that the police were looking for her because other
Falun Gong practitioners had identified her as an organizer of Falun Gong
meetings. According to Zhang, the policemen’s visit immediately spurred her to
obtain a fake Chinese passport and attempt to flee China.
1
At her asylum hearing, the IJ noted that Zhang attempted to file her asylum
application in 2002, within one year of her arrival, but that it was incorrectly rejected and so
the one-year limitation was not an issue. See 8 U.S.C. § 1158(a)(2)(B).
No. 06-4153 Page 3
Zhang testified that she did not succeed on her first try and was arrested at
the border in Guangxi Province on June 8, 2001. During the next two days, she
said, security officers gave her little to eat, forced her to sleep on a cement floor,
prodded her with an electric rod, and struck her head with a heavy book. After
that, Zhang continued, she was transferred back to her home city of Changle and
detained at a police station for a week. On her first day there, she recounted,
officers beat her and cut her neck with glass, requiring two security policemen to
escort her to a hospital. Zhang submitted a receipt from a Changle hospital dated
June 11, 2001, which corroborates that she was cut by glass on the lower left part of
her neck, was bleeding seriously, and required eight stitches. (At Zhang’s hearing
the IJ acknowledged that she has a scar.) Zhang testified that for the duration of
her detention in Changle she received just one meal per day and was interrogated
about her fake Chinese passport and her association with Falun Gong.
Zhang finally was released, she said, on the condition that she pay a fine of
3000 yuan (then about $362). This penalty, she explained, was assessed not
because she tried to leave China on a false passport (as Zhang had said in her
asylum application and as is memorialized on the purported record of the fine she
submitted at the hearing), but because of her connection to Falun Gong. Zhang
testified that she also was told to report regularly to the Changle police, attend a
reeducation class, and remain in the city. Zhang said she later heard that her
parents also had to attend reeducation classes.
When the IJ pressed Zhang about why she had not disclosed this purported
arrest and detention earlier, Zhang claimed that no one had asked her if she had
been arrested. And, she added, she did not volunteer information about the arrest
because she was afraid she would be sent back to China.
Zhang testified that after her release she bought a false United States
passport from a snakehead for a total cost of $68,000. She paid $7000 up front,
with her parents obligating themselves to pay the balance of $61,000 once she
arrived safely in the United States. That passport got her as far as O’Hare Airport.
The IJ disbelieved Zhang’s story and denied her application. In finding
Zhang not credible, the IJ pointed first to the inconsistencies between her hearing
testimony and the statements she made upon arriving at O’Hare and during her
credible-fear interview. The IJ reasoned that Zhang’s failure to disclose her alleged
arrest, detention, and beating in either her airport interview or credible-fear
interview “casts serious doubt on the credibility of her overall claim.” The IJ also
noted a variety of purportedly “confusing” and “implausible” aspects of Zhang’s
testimony. First, he did not believe Zhang’s testimony that she was detained for ten
days for helping her mother organize Falun Gong meetings since in her asylum
application she had given as the reason for her arrest her attempt to leave China on
No. 06-4153 Page 4
a false passport. Second, the IJ thought it implausible that Chinese authorities
would beat Zhang solely for associating with practitioners of Falun Gong but leave
her parents, who are practitioners, unharmed. Third, he did not believe that Zhang
would notify neighbors about Falun Gong meetings in the face of the government’s
crackdown on the practice. He also found troubling Zhang’s testimony that she
knew little about the practice of Falun Gong. Finally, the IJ doubted that Zhang, as
a nonpractitioner of Falun Gong, would pay $68,000 to flee China knowing that the
worst punishment her parents had suffered for actually practicing Falun Gong was
a reeducation class. He speculated that Zhang came to the United States for
economic reasons and not because of a fear of persecution.
The IJ further concluded that Zhang had not submitted sufficient
corroborative evidence to overcome her lack of credibility. He noted that Zhang did
not submit affidavits from family members in China or present enough evidence to
conclude that her scar was indeed caused by her alleged detention. He also noted
that the record of her 3000 yuan fine states that she was penalized for trying to
depart China illegally, not for associating with Falun Gong.
The BIA affirmed, highlighting the discrepancies between Zhang’s initial
statements to authorities and her testimony before the IJ about her alleged arrest
in China. The BIA also noted the inconsistency between Zhang’s initial testimony
that she was arrested for attempting to depart China illegally and her later
testimony that she was detained because of her association with Falun Gong. The
BIA concluded that Zhang had not provided sufficient corroboration of her claim to
overcome the significant discrepancies in her testimony and dismissed her appeal.
Analysis
Zhang argues that the adverse credibility finding is not supported by
substantial evidence. She maintains that her statements at her airport and
credible-fear interviews were not inconsistent with her hearing testimony, and that
her explanation for initially omitting the story of her arrest—that she was afraid of
being sent back to China—should have been believed. She also argues that the IJ’s
confusion about the circumstances of her arrest were his alone and that his disbelief
that she would receive harsher punishment than her parents is not supported in the
record. Finally, Zhang says that the IJ’s conclusion that she came to the United
States for economic reasons is speculative and illogical.
Where, as here, the BIA affirms, adopts, and supplements the IJ’s opinion,
we review both the IJ’s decision and any additional reasoning of the BIA. Mema v.
Gonzales, 474 F.3d 412, 416 (7th Cir. 2007). We will uphold the IJ’s decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole, and will overturn it only if the record compels a contrary
No. 06-4153 Page 5
result. Id. An IJ’s credibility determination must be supported by “specific, cogent
reasons that bear a legitimate nexus to the finding.” Feto v. Gonzales, 433 F.3d 907,
911 (7th Cir. 2006).1 Immaterial discrepancies in an asylum applicant’s testimony
will not support an adverse credibility finding, Giday v. Gonzales, 434 F.3d 543, 551
(7th Cir. 2006), nor will an IJ’s “own speculation, conjecture, or unsupported
personal opinion,” Jiang v. Gonzales, 485 F.3d 992, 995 (7th Cir. 2007).
We agree with Zhang that some of the IJ’s reasons for disbelieving her
testimony rest on “speculation, conjecture, or unsupported personal opinion.” See
Jiang, 485 F.3d at 995. For example, the IJ was skeptical that Zhang, who does not
practice Falun Gong, would help her parents organize Falun Gong meetings. But
he does not explain, nor can we see, why that aspect of her story should be
disbelieved. Nor do we find implausible Zhang’s testimony that her parents would
ask her to contact neighbors about upcoming meetings, despite the Chinese
government’s crackdown on the practice. And given Zhang’s consistent testimony
that she did not practice Falun Gong, we are not troubled, as the IJ was, by her lack
of knowledge of Falun Gong. Lastly, we cannot infer, as the IJ did, that Zhang’s
payment of a large sum to a snakehead revealed an economic motive for coming to
the United States; her willingness to pay could just as easily support her fear of
persecution. See Gao v. Gonzales, 457 F.3d 33, 38 n.2 (1st Cir. 2006).
Despite these weaknesses in the IJ’s opinion, though, the main
inconsistencies cited by the IJ and the BIA—Zhang’s failure to disclose her
purported arrest and detention during her airport interview and later credible-fear
interview—suffice to support the adverse credibility finding because the omissions
undermine Zhang’s entire claim of past persecution. See Tarraf v. Gonzales,
495 F.3d 525, 532-33 (7th Cir. 2007); Huang v. Gonzales, 453 F.3d 942, 945-47 (7th
Cir. 2006) (upholding adverse credibility determination based on a single significant
inconsistency); Giday, 434 F.3d at 551. At the airport interview, Zhang said that
the Chinese authorities had arrested Falun Gong practitioners, but she admitted
that they did not try to arrest her. And instead of saying that she had been
detained and beaten for associating with Falun Gong, she said that she left the
country immediately after she heard that others had been arrested. Then weeks
later at her credible-fear interview with a different immigration officer, Zhang
again said nothing about having been arrested and detained. Indeed, when asked
specifically whether she or a member of her family had been mistreated or
threatened, she said only that she fled the country because she had been told that
the police were going to arrest her. Even in her asylum application, where she first
1
Our credibility analysis is unaffected by the passage of the REAL ID Act of 2005, see
Pub. L. No. 109-13, 119 Stat. 231, which governs only cases in which the petition for asylum
was filed on or after May 11, 2005. Oyekunle v. Gonzales, 498 F.3d 715, 717-18 (7th Cir. 2007).
No. 06-4153 Page 6
disclosed her purported arrest and detention, Zhang swore that she was caught
trying to leave China illegally and punished for that offense, not for associating
with Falun Gong. At her removal hearing four years later, the story changed yet
again: the police did not merely “try” to arrest her; they arrested her, detained her
for ten days, and beat her—and this time Zhang insisted that the reason was her
association with Falun Gong.
The IJ and BIA reasonably discredited Zhang’s testimony based on her
alteration and embellishment of earlier stories. We have said repeatedly that “in an
attempt to bolster the asylum claim, the addition of new factual assertions that
were not originally set forth can be viewed as inconsistencies providing substantial
evidence that the applicant is not a reliable or truthful witness.” Oforji v. Ashcroft,
354 F.3d 609, 614 (7th Cir. 2003); see Tarraf, 495 F.3d at 532-33. In Oforji, the
applicant said at her airport interview that she had fled for economic reasons and
had not been persecuted in her native Nigeria, but later claimed in her asylum
application that she fled because of her political activity and because the
government had arrested and killed her husband. 354 F.3d at 613-14. In Tarraf,
the applicant did not mention any physical violence in his asylum application and
said that he had been detained and questioned for three days; but at his hearing he
said that he had been detained, severely beaten, and tortured and interrogated for
thirty days. 495 F.3d at 533. Like the applicants’ new details in Oforji and Tarraf,
Zhang’s story of her arrest and detention added significant factual
assertions—indeed, her entire claim of past persecution—that she never made in
her initial interviews, despite being asked multiple times whether she had been
arrested or mistreated.
Zhang argues that the IJ should have credited her explanation for failing to
disclose the arrest and detention at her credible-fear interview. But her initial
explanation—that she was not asked whether she had been arrested—was false.
And her subsequent explanation—that she did not volunteer the information
because she was afraid of being sent back to China—was not so compelling as to
require us to overturn the adverse credibility finding. See Tarraf, 495 F.3d at 533-
34. Zhang omitted the story of her arrest and detention both in her airport and
credible-fear interview, but she was not afraid to reveal to U.S. authorities that the
police “tried” to arrest her, that she feared arrest if returned, and that she entered
using a false passport. Although we have said that “testimony that an applicant
gave false information to immigration authorities for fear of deportation to a
persecuting country can be entirely consistent with a fear of persecution,” Galicia v.
Gonzales, 422 F.3d 529, 537 (7th Cir. 2005), the record does not compel that
conclusion here.
Accordingly, we DENY the petition for review.