Zhi Chen v. Eric Holder, Jr. , 418 F. App'x 438 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0219n.06
No. 09-4469
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 08, 2011
LEONARD GREEN, Clerk
ZHI ZENG CHEN, )
)
Petitioner, ) ON REVIEW FROM THE BOARD
) OF IMMIGRATION APPEALS
v. )
)
ERIC H. HOLDER, JR., Attorney General )
)
Respondent. )
Before: SUTTON and KETHLEDGE Circuit Judges; and HOOD, Senior District Judge.*
PER CURIAM. Petitioner Zhi Zeng Chen (“Petitioner”) seeks judicial review of a
November 20, 2009, decision of the Board of Immigration Appeals (“BIA”), which dismissed
Petitioner’s appeal from the immigration judge’s decision denying his applications for asylum,
withholding of removal, and protection under the Convention Against Torture. Petitioner argues that
his due process rights have been violated because the immigration judge erroneously concluded that
his application for asylum was untimely and because incompetent interpretation during the
proceeding before the Immigration Court prevented him from having a full and fair hearing. He
argues, as well, that the decision to deny his applications was not supported by substantial evidence
because the immigration judge erroneously concluded that his testimony was not credible and, thus,
that his claims were without support.
For the reasons which follow, we DENY the relief requested in the Petition.
* The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
I. Background
Petitioner is a native and citizen of the People’s Republic of China. He arrived in the United
States at or near the Miami International Airport on November 27, 2004, without valid entry
documents. A credible fear interview was conducted on December 9, 2004. During that interview,
Petitioner testified, under oath, that he had been mistreated, threatened, and slapped by members of
a Falun Gong group of which he was a member. He also testified that he feared the Falun Gong
group because they had threatened to kill him when he tried to distance himself from the group after
he witnessed them participating in activities declared illegal by the Chinese government. At the
same time, Petitioner explained that he feared that government authorities could arrest him because
he attended Falun Gong meetings. Chen’s case was referred to an immigration judge in Miami.
On March 24, 2005, Petitioner filed a motion to change venue to the United States
Immigration Court located in New York, New York, admitted the allegations set forth in the Notice
to Appear, and conceded the charge of removability. His motion was granted on April 11, 2005, and
Petitioner appeared at the New York Immigration Court on June 22, 2005. There, he requested relief
in the form of asylum, withholding of removal, and protection under the Convention Against
Torture. He was notified that he should return to the court on August 24, 2005, with his applications
for relief, or his applications would be deemed abandoned.
On August 12, 2005, Petitioner sought to change venue to the Immigration Court in
Cleveland, Ohio, and his motion was granted on August 23, 2005. Petitioner appeared there for the
first time on November 29, 2006. On August 1, 2007, Petitioner submitted applications for asylum,
withholding of removal, and protection under the Convention Against Torture to the Immigration
Court in Cleveland and requested an individual hearing date on his applications. In his applications,
Chen indicated that he was seeking relief based on religious grounds, namely his new-found
Christian faith. He explained that, since his arrival in the United States, he had been learning about
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Christianity from his uncle and attending church in New York and, later, Ohio. He stated that he
feared persecution as a Christian in China. He also admitted that he did not tell the truth to the
immigration officer who conducted his credible fear interview, explaining that he told the
immigration officer what the “snakehead,” or human smuggler, had told him to say for fear that he
would be sent back to China.
A removal hearing was conducted on February 27, 2008, before the United States
Immigration Court in Cleveland with the assistance of an interpreter, who provided translation of
the proceedings in English into Mandarin Chinese for Petitioner and translation of his responses into
English for the benefit of the court. During that hearing, Petitioner testified that, after his arrival in
the United States and while living in Cambridge, Ohio, he would visit his uncle in New York every
six weeks. During those visits, his uncle, a Christian, told him about the Bible and took him to the
Grace Fujinese Church, where services were held in the Fu-zhou dialect. Eventually, his uncle
referred him to a church in Ohio, but, because the services there were in English, Petitioner decided
to continue attending services at the Grace Fujinese Church. He would travel to New York two or
three times a month by bus on Saturday night, returning to Ohio on Sunday night or Monday.
Petitioner’s uncle was unable to testify at the hearing because he was in the hospital after breaking
his spine.
Petitioner confirmed during cross-examination that he did not tell the truth during his
credible fear interview nor could he recall what reason he gave the immigration officer for his fear
of returning to China, even though he estimated his testimony during that interview to be “fifty
percent true, fifty percent false.” He admitted that he had never practiced Falun Gong in China, had
never been harmed or threatened by a member of a Falun Gong group, and never had a fear of
returning to China due to any practice of or association with Falun Gong.
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Petitioner testified alternatively that he had forgotten why he came to the United States, that
he was smuggled into the United States, and that he came to the United States because there is
freedom of religion. He also testified that he began attending church services on Sundays at the
Grace Fujian Church once a month in April 2005 and that he attended the church 23 and 28 times,
respectively, in 2006 and 2007. Petitioner submitted a letter from the minister at the Grace Fujian
Church stating that Petitioner had been attending the Church for Wednesday services since June 24,
2007. When questioned about the discrepancy with his own testimony concerning the length of time
that he had attended the church and for which services he attended during the week, he explained
that there was a mistake because he did not attend Wednesday services and that the date could be
explained because he had not registered or signed in at the church when he first attended.
During the hearing, Petitioner testified that, prior to becoming a Christian, he was a Taoist.
When asked if action had ever been taken against him by the Chinese authorities for being Taoist
or practicing Taoism, he testified that he was arrested in July 1998 and detained for two months for
practicing Taoism because the police said that Taoism was a form of superstition. The incident was
not listed on his asylum application. Petitioner testified that he had not discussed his Taoism or the
1998 incident in his application for asylum because he “didn’t know [he] should write it down.” [AR
at 122.]
Petitioner also testified that a different attorney than the one representing him at the hearing
had filed an asylum application for him sometime in 2005, distinct from the 2007 application in the
record. He did not have a copy of the purported 2005 application. Nonetheless, Petitioner’s
attorney, Stuart Altman, stated to the court that his client was mistaken and that he had, in fact, sent
an I-589 asylum application on November 14, 2005, to the Immigration Court in Cleveland. Altman
was prepared to present an overnight mailing receipt to demonstrate that he had mailed an I-589 to
the court’s address at that time. Altman explained that it was not delivered because the opening of
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the Immigration Court was delayed and that the Cleveland court did not ultimately open its doors
until September 2006.
At the conclusion of the hearing, the immigration judge found Petitioner removable and
denied Petitioner’s applications for asylum, withholding of removal, and protection under the
Convention Against Torture. As grounds for denying his applications, the immigration judge
determined that Petitioner’s application for asylum contained in the record was untimely because
there was no evidence of any application for asylum filed within one year after his arrival in the
United States, as required by 8 U.S.C. § 1158(a)(2)(B). He was not persuaded that any filing had
even been attempted because, notwithstanding Altman’s efforts to introduce an overnight mailing
receipt as evidence of a timely filed application, Petitioner insisted that someone else had submitted
that document, which was not available. The immigration judge continued, stating that the
application for asylum would have been denied even if it had been timely filed because there was
no persuasive evidence that he had experienced past persecution or that he had a subjectively real
and objectively reasonable fear of future persecution on account of religion. The immigration judge
stated that he believed Petitioner’s testimony that he had been subject to past persecution as a Taoist
to be fabricated and that he did not believe that Petitioner was an actively practicing Christian, his
testimony to the contrary notwithstanding, because he found Petitioner’s testimony on the whole to
be incredible.
The immigration judge’s credibility decision turned on the fact that he found Petitioner to
be “not believable in any respect” because of (1) his previously demonstrated willingness to lie under
oath, citing the false but “elaborate tale of persecution” which Plaintiff had crafted in the credible
fear interview, (2) his demeanor, (3) the inconsistency of Petitioner’s statements about attending a
church on Sundays in New York almost half the weeks in a given year over the course of nearly three
years with a letter from his minister stating that Petitioner had attended on Wednesdays for less than
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a year, and (4) his failure to mention his claim of a past persecution on the basis of his former Taoist
faith in his asylum application when the claim before the Immigration Court was premised on a
purported fear of persecution in China because of religion.
As the Petitioner had failed to meet the relatively low threshhold required to prove that he
was a refugee for the purpose of obtaining asylum, the immigration judge concluded that he had
necessarily failed to meet the higher standard required to prove a claim for withholding of removal.
The immigration judge also concluded that Petitioner had presented no evidence to suggest that he
would more likely than not be subject to torture if he returned to the People’s Republic of China and
denied his application for protection under the Convention Against Torture on those grounds.
On March 12, 2008, Petitioner filed a Notice of Appeal to the BIA; he filed a supplemental
brief on May 13, 2008. In those filings, Petitioner argued that the immigration judge erred when he
found Petitioner incredible and that substantial evidence did not support the immigration judge’s
adverse credibility finding. Specifically, he argued that his untruthfulness at the credible fear
interview was wrongfully considered because it did not touch on or enhance his actual application
for asylum, that his demeanor might have appeared varied during the hearing because of translation
errors, and that he had presented evidence to corroborate his claim that he is a practicing Christian
as well as adequately explained the inconsistency between his testimony and the minister’s letter and
the omission of his 1998 detention in China from his application. He argued, as well, that the
immigration judge wrongly denied his application for protection under the Convention Against
Torture because the Department of State Report for China, submitted to the court, showed that
Petitioner would more likely than not be tortured upon returning to China. He argued that he was
denied due process by virtue of the Cleveland Immigration Court’s delayed opening, which
Petitioner claimed “may have been the reason” that his application was untimely. He also claimed
that there was evidence available (the overnight mailing receipt) to demonstrate that an application
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was timely mailed, and that his counsel failed to provide the receipt earlier because he did not know
that the application had not been received.
The BIA issued its decision, dismissing Petitioner’s appeal, on November 20, 2009. This
appeal followed.
II. Jurisdiction
As a general matter, we have jurisdiction to review the BIA’s decision, a final agency
decision under 8 C.F.R. § 1241.1, with respect to Petitioner’s application for asylum, withholding
of removal, and withholding of removal under the Convention Against Torture pursuant to 8 U.S.C.
§ 1252(a)(1). Thus, Petitioner’s appeal is, as a general matter, properly before this Court, and we
will consider his arguments that the immigration judge’s credibility determination was not supported
by substantial evidence in the record.
We lack jurisdiction, however, to review a determination that an asylum application was
untimely where an appeal seeks review of discretionary or factual questions, while we may consider
the issue of timeliness where constitutional claims or matters of statutory construction are raised.
See 8 U.S.C. § 1158(a)(2)(B), (a)(3); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006).
Petitioner argues that he was denied procedural due process with respect to the decision on the
timeliness of his asylum application because he “could not file [his] application in court in a timely
manner.” To prevail on a due-process challenge, Petitioner must demonstrate that “the proceeding
was so fundamentally unfair” that he was “prevented from reasonably presenting his case.” Hassan
v. Gonzales, 403 F.3d 429, 436 (6th Cir. 2005) (internal quotation marks omitted). He must also
demonstrate “that the alleged violation affected the outcome of the proceedings; we will not simply
presume prejudice.” Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005). Petitioner has not
asserted that he was actually denied a full and fair hearing on the issue of the timeliness of his
application or even the merits of his application, for that matter. In fact, the immigration judge fully
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articulated the basis for his decision that Petitioner’s asylum application was untimely and then
stated, in detail, alternative grounds for denying his asylum application. As the immigration judge
explained, Petitioner’s “application for asylum would be denied even if it had been timely filed.”
Petitioner has not demonstrated prejudice, so we will consider Petitioner’s argument concerning the
timeliness of his application no further.
Further, we may only review those issues that Petitioner has exhausted through the
administrative remedies available to him. 8 U.S.C. § 1252(d)(1); Ramani v. Ashcroft, 378 F.3d 554,
558 (6th Cir. 2004). Thus, we have no jurisdiction to consider issues that were not presented to the
BIA, including Petitioner’s contention that the immigration judge erred when he failed to take into
account letters written by Petitioner’s father and uncle which he offers to support the contention that
he was an active practitioner of the Christian faith. Nor do we have jurisdiction to consider
Petitioner’s claim that incompetent translation during the proceeding before the immigration judge
deprived him of due process. While “[t]he function of an interpreter is an important one . . .
affect[ing] a constitutional right,” Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir. 1930), “an alien
must demonstrate that a constitutional error caused actual prejudice; i.e., that the error materially
affected the outcome of the alien’s case.” Al-Ghorbani v. Holder, 585 F.3d 980, 992 (6th Cir. 2009)
(citing Mapouya v. Gonzales, 487 F.3d 396, 416 (6th Cir. 2007)). Before the BIA, Petitioner raised
only a “generalized” claim that translation problems may have contributed to the immigration
judge’s adverse credibility finding without identifying how he was prejudiced by any discrete
instances of inadequate translation. Since Petitioner did not properly present and exhaust this issue
before the BIA, we have no jurisdiction to consider the issue.
Finally, “[w]here, as here, the [BIA] adopts and affirms the immigration judge's opinion, but
writes its own opinion explaining the reasons for its decision, we review both opinions.” Abdulahad
v. Holder, 581 F.3d 290, 294 (6th Cir. 2009) (citing Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir.
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2008)); see also Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007) (citing Gilaj v. Gonzales, 408
F.3d 275, 283 (6th Cir. 2005)) ("Because the BIA adopted the [immigration judge]'s decision with
additional commentary, we review the decision of the [immigration judge], as supplemented by the
BIA, as the final administrative order."). Respondent argues we may not reach the issue of whether
the immigration judge erroneously relied on Petitioner’s demeanor to reach an adverse credibility
determination because the BIA failed to expressly address it. This argument lacks merit because we
review both decisions.
III. Standard of Review
The agency decision must be upheld if it is supported by substantial evidence in the record.
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Yu v. Ashcroft, 364 F.3d 700, 702-703 (6th Cir.
2004). Administrative findings of fact are conclusive unless “any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “This is a deferential standard:
A reviewing court should not reverse ‘simply because it is convinced that it would have decided the
case differently.’” Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004) (quoting Klawitter v. INS, 970
F.2d 149, 151-52 (6th Cir. 1992)). The mere “possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being supported by
substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1996) (citing
NLRB v. Nevada Consol. Copper Corp. 316 U.S. 105, 106 (1942); Keele Hair & Scalp Specialists,
Inc. v. FTC, 275 F.2d 18, 21 (5th Cir. 1960)).
We review claims of the denial of due process de novo. Mikhailevitch v. INS, 146 F.3d 384,
391 (6th Cir. 1998) (citing Ivezaj v. INS, 84 F.3d 215, 220 (1996)).
IV. Discussion
Petitioner argues that the immigration judge erred in denying his applications for asylum,
withholding of removal, and protection under the Convention Against Torture and that, in turn, the
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BIA erred in dismissing his appeal of that decision. Specifically, he maintains that the immigration
judge’s determination that Petitioner was not credible and, thus, that his claims were not credible was
not supported by substantial evidence. Further, he argues that he was denied due process, i.e., a full
and fair hearing, on his application for withholding of removal under the Convention Against Torture
because the immigration judge failed to address the International Religious Freedom Report for
China. For the reasons which follow, we find that Petitioner’s arguments are without merit and will
affirm the decision of the BIA.
A. Credibility Determination by Immigration Judge
The decision by the immigration judge to deny Petitioner’s applications was driven by the
conclusion that Petitioner was not a credible witness. In all cases where asylum, withholding of
removal, or protection under the Convention Against Torture are requested, credibility
determinations are critical because aliens must carry the burden of proving their eligibility for relief.
To qualify for a discretionary grant of asylum, an alien must demonstrate that he is a refugee
within the meaning of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). A “refugee” is an alien
who is unwilling or unable to return to his or her home 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). The alien has the burden of proving
eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a); Ndrecaj v. Mukasey, 522
F.3d 667, 674 (6th Cir. 2008). The applicant’s testimony may be sufficient to sustain his burden
without corroboration, but only if he satisfies the trier of fact that his testimony is credible,
persuasive, and refers to specific facts sufficient to demonstrate that he is a refugee. 8 U.S.C. §
1158(b)(1)(B)(ii).
Withholding of removal, under 8 U.S.C. § 1231(b)(3), is closely related to, but distinct from,
asylum. See Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005). To prevail on a withholding
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application, an alien must establish a “clear probability” that his life or freedom would be threatened
in the proposed country of removal because of one of the protected grounds. Pilica v. Ashcroft, 388
F.3d 941, 951 (6th Cir. 2004) (citing INS v. Stevic, 467 U.S. 407, 413 (1984); Mikhailevitch, 146
F.3d at 391). “Clear probability” means that it is “more likely than not” that an alien would be
subject to persecution, and the standard is, thus, more stringent than the burden of proof standard
applied in asylum cases. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-32 (1987).
Finally, to establish eligibility for protection under the Convention Against Torture, an alien
must demonstrate that it is “more likely than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2); Ramaj v. Gonzales, 466 F.3d 520, 532 (6th
Cir. 2006). “The term ‘torture’ only describes ‘an extreme form of cruel and inhuman treatment and
does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not
amount to torture.’” Almuhtaseb, 453 F.3d at 751 (quoting 8 C.F.R. § 1208.18(a)(2)); see also Berri
v. Gonzales, 468 F.3d 390, 398 (6th Cir. 2006). The torture must be “inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1).
Credibility determinations are considered findings of fact and are reviewed under the
deferential substantial evidence standard. Yu, 364 F.3d at 703. We may not disturb an adverse
credibility determination unless the evidence “not only supports a contrary conclusion, but indeed
compels it.” Klawitter, 970 F.2d at 152 (emphasis in original).
In determining whether an alien’s claim is credible, an Immigration judge is authorized to
consider a number of factors, including:
the demeanor . . . of the applicant or witness, . . . the consistency between the
applicant's or witness's written and oral statements (whenever made and whether or
not under oath, and considering the circumstances under which the statements were
made), the internal consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the Department of
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State on country conditions), 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.
8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). “There is no presumption of credibility. . . . ” Id.
In the instant matter, the immigration judge concluded that Petitioner was not a credible
witness because of his demeanor, because he had demonstrated a willingness to lie under oath during
his credible fear interview, because of inconsistencies between Petitioner’s testimony and a letter
from the minister from Petitioner’s church concerning when Petitioner began to attend services there
and which services he attended, and because Petitioner failed to mention a purported two month
detention by the Chinese authorities on account of his prior religious affiliation (Taoist) some years
before in his applications, revealing it only during the hearing before the immigration judge. Once
the immigration judge concluded that Petitioner was “not a believable witness” and because
Petitioner was the only witness, the immigration judge found that there was simply no believable
evidence presented to demonstrate that Petitioner was a practicing Christian of long or short-
standing, that he had experienced past persecution or had a well-founded fear of future persecution
on account of his religion at the hands of Chinese authorities, or that he would more likely than not
be subjected to torture if he returned to the People’s Republic of China. [AR at 55, 58.] Thus, the
immigration judge concluded Petitioner’s application would have been denied even if it had been
timely filed.
Petitioner first argues that the immigration judge erroneously concluded that Petitioner was
not credible because the immigration judge should never have considered Petitioner’s falsehoods
during the credible fear interview, the inconsistencies between his testimony and the minister’s letter,
and his omission from his applications of the purported detention by Chinese authorities because
they did not enhance his claim of persecution, i.e., did not “get to the heart of the applicant’s claims.”
The “heart of the claim” rule, which Petitioner invokes, citing Chen v. Gonzales, 447 F.3d 468, 472
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(6th Cir. 2006) (addressing applications for asylum and withholding of removal filed prior to May
11, 2005), was abolished by statute for cases like Petitioner’s which were filed on or after May 11,
2005. See 8 U.S.C. § 1158(b)(1)(B)(iii). See also El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir.
2009) (recognizing that REAL ID Act abrogated “heart of the claim” doctrine for cases filed on or
after May 11, 2005, and made other significant changes to the Court’s review of adverse credibility
findings). Because the immigration judge was clearly authorized, under 8 U.S.C. 1158(b)(1)(B)(iii),
to consider these falsehoods, inconsistencies, and omissions in reaching a finding on credibility, it
was not error for him to do so simply because these falsehoods, inconsistencies, and omissions may
not have gone directly to the basis of Petitioner’s application for asylum, withholding of removal,
and protection from torture.
Even so, Petitioner argues that the immigration judge miscontrued the import of his falsehood
and his omission in his application and that the immigration judge’s conclusion that there was an
inconsistency was not supported by substantial evidence. Effectively, he argues that it was
reasonable for him to spin the elaborate tale about the practice of Falun Gong that he told during his
credible fear interview because the “snakehead,” or human smuggler, told him to do so and that it
was reasonable for him to omit past persecution as a Taoist because he was now requesting relief as
a Christian. He argues, as well, that his statements about when he began to attend church in New
York prior to registering with the church were not inconsistent with the letter obtained from the
minister there which gave a much later date “according to [the] church registration book” and that
any discrepancy based on which day of the week he attended church was minor. We have considered
these arguments but cannot say that the evidence “not only supports a contrary conclusion, but
indeed compels it.” Klawitter, 970 F.2d at 152 (emphasis in original).
Finally, Petitioner argues that the immigration judge erroneously relied on Petitioner’s
demeanor to reach an adverse credibility determination because the immigration judge failed to
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articulate specific examples of Petitioner’s demeanor in announcing a decision. While the
immigration judge questioned the credibility of the Petitioner for a number of reasons, the
immigration judge included Petitioner’s “demeanor as he testified” because “[h]is demeanor on
direct examination was much different than that on cross-examination” without further elaboration.
[AR at 54.] On review, the BIA rejected Petitioner’s contention that he was a credible witness and
concluded that the immigration judge had not clearly erred with respect to his assessment of
Petitioner’s credibility. The BIA’s decision was, however, founded on the other factors relied upon
by the immigration judge, i.e., prior falsehoods, inconsistencies between Petitioner’s testimony and
other evidence, including his changing testimony during the hearing, as well as the omission of the
purported prior detention in his homeland from his application. The BIA omitted any discussion of
Petitioner’s demeanor. While an immigration judge is required to give specific reasons for any
adverse credibility determination, Abdulahad, 581 F.3d at 294-95 (citing Koulibaly v. Mukasey, 541
F.3d 613, 620 (6th Cir. 2008)), we find ourselves in agreement with the BIA that the immigration
judge’s adverse credibility determination was supported by substantial evidence even when
consideration of Petitioner’s demeanor is omitted from the calculus of credibility.
In this respect, the matter at hand is easily distinguishable from that before the Ninth Circuit
Court of Appeals in Arulampalam v. Ashcroft, 353 F.3d 679 (9th Cir. 2003), upon which Petitioner
relies to support his position. In Arulampalam, the immigration judge made an adverse credibility
determination based largely on “aspects of [the petitioner's] demeanor and method of answering
questions” despite having found “no major inconsistencies in [the petitioner's] testimony” and
without specifically or cogently referring to any specific aspect of the petitioner’s demeanor. Id. at
685-86. By contrast, both the immigration judge and the BIA focused their attention in this matter
on Petitioner’s prior untruthfulness, inconsistencies between Petitioner’s testimony and other
evidence presented, as well as the failure to mention a prior detention by the Chinese authorities on
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his applications. It may have been error for the immigration judge to rely on Petitioner’s demeanor,
as that term is typically understood, as a basis for an adverse credibility determination without
articulating his specific concerns about it. Nonetheless, we cannot say that the adverse credibility
determination was not supported by substantial evidence in the record, nor can we say that a contrary
conclusion would be compelled if Petitioner’s demeanor is not considered.
Accordingly, for all of the reasons above, the adverse credibility determination below is
upheld.
B. No Denial of Due Process
Finally, Petitioner argues that he was denied due process because “[t]he Immigration Judge
did not take into separate consideration the Petitioner’s claim under the Convention Against
Torture.” Petitioner states that the International Religious Freedom Report for China “clearly shows
there is torture of Christian religious adherents in China.” That may be so. But the immigration
judge did not believe that Petitioner was a practicing Christian. We have affirmed the immigration
judge’s adverse credibility finding, and, after reviewing the record, we are not compelled to conclude
that Petitioner is a practicing Christian or that he will likely be subject to torture if he is returned to
China. Accordingly, we deny his petition for relief on these grounds, as well.
V. CONCLUSION
For all of the reasons set forth above, we DENY the relief requested in the Petition.
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