Jie Cui v. Eric H. Holder Jr. , 712 F.3d 1332 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIE CUI, AKA Chet Chui, No. 08-72936
Petitioner,
Agency No.
v. A096-231-179
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 5, 2013—Pasadena, California
Filed April 10, 2013
Before: Consuelo M. Callahan, Sandra S. Ikuta, and
Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Callahan
2 CUI V. HOLDER
SUMMARY*
Immigration
The panel denied a petition for review from the Board of
Immigration Appeals’ denial, on adverse credibility grounds,
of asylum, withholding of removal, and protection under the
Convention against Torture to a native and citizen of China
who asserted a fear of persecution on account of his practice
of Da Zang Gong or “DZ Gong.”
The panel held that substantial evidence supported the
immigration judge’s adverse credibility determination based
on pre-REAL ID Act standards. The panel explained that
petitioner’s travel to Mexico, his lack of efforts to then enter
the United States, and his voluntary decision to return to
China go to the heart of his asylum claim because they
undermine his assertions that he feared persecution. The
panel further explained that petitioner’s faulty memory of
whether he had to report to the police after an arrest, and his
vague, if not inconsistent, statements about whether he had to
report to the police when he returned to China were
problematic, and that under the circumstances, it was
reasonable to expect him to provide evidence to corroborate
his arrests and beatings or of the arrests and beatings of other
DZ Gong members.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CUI V. HOLDER 3
COUNSEL
Cindy S. Chang of Walnut, California, for Petitioner.
Michael F. Hertz, acting Assistant Attorney General;
M. Jocelyn Lopez Wright, Charles S. Greene, III (argued),
and Judith R. O’Sullivan, United States Department of
Justice, Office of Immigration Litigation, Washington, D.C.,
for Respondent.
OPINION
CALLAHAN, Circuit Judge:
Jie Cui, a native of China, seeks asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). Cui claims that he has been, and will be,
persecuted because of his practice of Da Zang Gong (“DZ
Gong”). The Immigration Judge (“IJ”) and Board of
Immigration Appeals (“BIA”) found that Cui was not
credible. We affirm because the adverse credibility
determination is adequately supported by the record and goes
to the heart of his claim.
I
Cui was born in China in 1969 and attended Harbin
University of Science and Technology, majoring in
mechanical engineering. While at the university he joined the
student democracy movement and helped lead
demonstrations. Cui states that he was then investigated by
the Communist Party and used as an example of having an
incorrect “deep western freedom belief.”
4 CUI V. HOLDER
In 1992, after graduation, Cui was assigned to a machine
factory but, because of his record in the student movement, he
“was given nothing to do but receive political belief
education everyday.” He claims he was attacked by a
Communist party officer in the factory because he secretly
listened to a banned radio program.
In 1994, Cui met Master Yu Qi, the leader of DZ Gong,
a teaching of Tibetan Buddhism. Cui was curious about the
teaching and anxious to leave the factory, so he became a
disciple of Master Yu. From 1994 to 1999, Cui traveled to
different places in China arranging for and holding classes in
DZ Gong.
Cui claims that in October 1999, two police officers came
to his house, told him that DZ Gong was now a banned
religious organization, confiscated his DZ Gong materials,
and told him not to conduct further activities relating to DZ
Gong. Cui states that thereafter authorities frequently came
to his house to threaten him and to discourage him from
practicing DZ Gong, but he continued to practice in secret.
Cui alleges that one night in December 1999, when he
was teaching a DZ Gong beginners’ class, four police officers
came in and beat everyone with batons. He states that the
officers arrested him and the other DZ Gong leader and took
them to the police station where they were beaten, threatened
and interrogated. Cui asserts that the officers questioned him
about the whereabouts of Master Yu, and beat him when he
said he did not know where Master Yu was. Cui was released
after two weeks and warned that if he continued to practice
DZ Gong, he would be detained even longer.
CUI V. HOLDER 5
In his application for political asylum, Cui claimed that
“[b]ecause of the tense atmosphere inside the country, on
February 10, 2000, I and two other Gong teachers escaped to
Mexico. Our purpose was to find a way to come to the
United States and seek religious and political asylum.”
Cui claims that during his two years in Mexico he
endured hardships because of the language barrier, different
religious beliefs, a lack of friends and relatives, and the high
cost of living. He further stated that he could not find a way
to enter the United States and that it was difficult to promote
DZ Gong in Mexico. He claims that with their money
running out and feeling homesick, when he and his colleagues
heard that police in China were not arresting people anymore,
they returned to China in May 2002 to reunite with their
families.
Cui states that just two days after he arrived home, the
police came to his home to arrest him, but they did not find
him because he was cleaning the basement. He then went to
his home town in a farm village, where he thought he would
be safe. However, a week later on May 21, 2002, when he
was teaching DZ Gong, the police came and arrested him.
Cui alleges that he was detained for two weeks in one
facility and beaten. He states that the authorities had learned
of his prior participation in the student movement and asked
him questions about his role in the student movement as well
as the whereabouts of Master Yu. He claims that they pushed
his head into a bucket of water until he almost drowned, beat
him with a baton on the back of his head until he passed out,
made him stand outside in his underwear for a whole evening
to feed the mosquitos, and on occasion denied him food.
6 CUI V. HOLDER
Cui alleges that in June 2002, he was transferred to
another jail, where he was again interrogated, beaten and
tortured. He asserts that he was released at the end of
November 2002 and warned that if he continued to practice
DZ Gong he would again be arrested and detained for even
longer.
Cui decided that DZ Gong would never be allowed in
China, and after discussing the matter with his family, he left
China for Mexico in March 2003, with the intent of seeking
asylum in the United States. Within days of his arrival in
Tijuana, Cui arranged to be smuggled into the United States.
He relates that early in a morning he was hidden under a van,
but half an hour later he was discovered by Border Patrol
agents.
II
A Notice to Appear charged Cui with being removable for
having entered the United States without a valid entry
document. Cui eventually applied for asylum,1 and after
several continuances had a hearing before an Immigration
Judge (“IJ”). Cui testified and offered two witnesses: Master
Yu and Mr. Shuang-Xi Yang. Both were practitioners of DZ
Gong who had been granted asylum. Both had known Cui in
China, but could not testify as to Cui’s particular claims of
1
Usually, an asylum application must be filed within a year of a
person’s entry into the United States. 8 U.S.C. § 1158(a)(2)(B). An
untimely application may be considered when the Attorney General finds
that extraordinary circumstances justify the delay in filing. 8 U.S.C.
§ 1158(a)(2)(D). Here, the IJ found the requisite extraordinary
circumstances, noting that Cui’s “failure to file his asylum application
within one year of his arrival was beyond [his] control.” The Government
does not challenge this finding.
CUI V. HOLDER 7
persecution. After a final hearing on August 27, 2007, the IJ
noted that Cui admitted the allegations in the Notice to
Appear, found Cui not to be credible, and denied him asylum,
withholding of removal, and CAT relief. The IJ based his
adverse credibility determination on five inconsistencies, two
material omissions, nine instances of inherently implausible
testimony, and a lack of corroborative evidence. Cui
appealed to the BIA.
The BIA issued an opinion finding that the IJ’s adverse
credibility determination was not clearly erroneous and
dismissing the appeal. The BIA stated:
While we do not agree with the whole of the
credibility determination – particularly with,
e.g., the finding that the respondent was
inconsistent with respect to when he got his
visa to visit Mexico in 1999 and about where
he was when he was discovered listening to
the unauthorized radio program – we find that
overall, other discrepancies, implausibilities,
and the lack of corroborative evidence found
by the Immigration Judge are sufficient to
satisfy us that no clear error was committed in
the rendering of the adverse credibility
determination.
The BIA observed that the IJ correctly noted that Cui’s
written statement failed to mention that he was required to
report weekly to the police station after his 1999 detention
ended or that he was under police supervision when he left
China in 2003. The BIA noted that these allegations were
significant because Cui contends that he had to “escape”
China and that the police were interested in him when he
8 CUI V. HOLDER
returned to China in 2003. The BIA further noted the lack of
any corroborative evidence of Cui’s arrests or of the ban on
DZ Gong. It also agreed with the IJ’s determination that it
was “implausible that someone would travel all the way from
China to Mexico, with the claimed purpose of applying for
asylum in the United States, and ultimately simply return to
China despite fears of harm awaiting him there.”
The BIA denied Cui’s request for withholding of removal
and for CAT relief, commenting: “[I]n the absence of credible
evidence reflecting any reason why the Chinese government
would seek [Cui], there is no evidence of a clear probability
of torture at the instigation of, or with the consent or
acquiescence of, current government officials.”
III
Where, as here, the BIA’s decision incorporates part of
the IJ’s opinion as its own, we review both. Aquilar-Ramos
v. Holder, 594 F.3d 701, 704 (9th Cir. 2010) (citing Molina-
Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th Cir. 2002)). We
review the BIA’s findings of fact, including credibility
findings, for substantial evidence and uphold the BIA’s
findings unless the evidence compels a contrary result.
Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir. 2006);
see also Shrestha v. Holder, 590 F.3d 1034, 1039, 1048 (9th
Cir. 2010). “While the substantial evidence standard
demands deference to the IJ, ‘[w]e do not accept blindly an
IJ’s conclusion that a petitioner is not credible. Rather, we
examine the record to see whether substantial evidence
supports that conclusion and determine whether the reasoning
employed by the IJ is fatally flawed.’” Gui v. I.N.S., 280 F.3d
1217, 1225 (9th Cir. 2002) (quoting Osorio v. I.N.S., 99 F.3d
928, 931 (9th Cir. 1996)).
CUI V. HOLDER 9
The applicant bears the burden of establishing eligibility
for asylum through credible evidence. See Liu v. Holder,
640 F.3d 918, 925 (9th Cir. 2011); Singh v. Ashcroft,
367 F.3d 1139, 1142 (9th Cir. 2004); Ghaly v. I.N.S., 58 F.3d
1425, 1428 (9th Cir. 1995). To prevail, an applicant must
present substantial evidence that would support a finding that
“any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Ali v. Holder,
637 F.3d 1025, 1029 (9th Cir. 2011). “We have held that the
uncorroborated testimony of the applicant, if credible, may be
sufficient to sustain the applicant’s burden.” See Jibril v.
Gonzales, 423 F.3d 1129, 1133 (9th Cir. 2005). “If the trier
of fact either does not believe the applicant or does not know
what to believe, the applicant’s failure to corroborate
testimony can be fatal to his asylum application.” Sidhu v.
I.N.S., 220 F.3d 1085, 1090 (9th Cir. 2000); see also Malhi v.
I.N.S., 336 F.3d 989, 993 (9th Cir. 2003).
Here, because Cui filed his asylum application prior to
May 11, 2005, the burden of proof provisions in the REAL ID
Act of 2005 do not apply. Instead, “[w]hen the IJ denies
asylum based ‘on an adverse credibility determination, he
must provide specific, cogent reasons to support his
determination . . . [which] cannot be peripheral, but rather
must go to the heart of petitioner’s claim.’” Don v. Gonzales,
476 F.3d 738, 741 (9th Cir. 2007) (quoting Desta v. Ashcroft,
365 F.3d 741, 745 (9th Cir. 2004)). In affirming the denial of
relief in Don, we explained:
Don’s inability to “state as to when it was that
this man who was the source of him having to
flee his country started to work for him” went
to the heart of Don’s claim because it
involved the very event upon which he
10 CUI V. HOLDER
predicated his claim for asylum. See
Chebchoub v. INS, 257 F.3d 1038, 1043 (9th
Cir. 2001) (explaining that inconsistencies in
the details of events that form the basis for the
asylum claim, specifically “testimony about
the events leading up to [petitioner’s]
departure,” go to the heart of the claim, and
support an adverse credibility finding); see
also Singh v. Gonzales, 439 F.3d 1100, 1108
(9th Cir. 2006) (affirming that “[a] single
supported ground for an adverse credibility
finding is sufficient if it relates to the basis for
petitioner’s alleged fear of persecution and
goes to the heart of the claim,” and “[a]n
inconsistency goes to the heart of a claim if it
concerns events central to petitioner’s version
of why he was persecuted and fled”)
(citations, alteration, and internal quotation
marks omitted).
476 F.3d at 741–42.
IV
Cui’s allegations, if true, might render him eligible for
asylum, but he has not demonstrated that the IJ’s credibility
finding is not based on substantial evidence in the record.
Rather than cite to the record, Cui primarily argues that the
adverse credibility finding was based on misunderstanding
and misinterpretation of the facts and not on the totality of the
evidence. In support of his contention, Cui makes three legal
arguments. First, citing Damaize-Job v. I.N.S., 787 F.2d
1332, 1337 (9th Cir. 1986), Cui argues that discrepancies in
an applicant’s testimony cannot be viewed as attempts to
CUI V. HOLDER 11
enhance his claim of persecution if they have no bearing on
his credibility. Second, citing Lopez-Reyes v. I.N.S., 79 F.3d
908, 911 (9th Cir. 1996), he asserts that an applicant’s
testimony is not lacking in credibility simply because it
includes details not described in the asylum application.
Third, citing Maini v. I.N.S., 212 F.3d 1167, 1175 (9th Cir.
2000), Cui argues that an IJ’s view of what a persecuted
person should include in his asylum application has no weight
in an adverse credibility finding. These arguments are
unavailing.
Cui’s challenge to the adverse credibility determination
fails to show that the determination was not supported by
substantial evidence. The IJ’s determination that Cui’s
account of his two-year stay in Mexico and decision to return
to China is incredible goes to the heart of his asylum claim.
The IJ reasonably found that, if Cui’s reason for going to
Mexico was to escape political or religious persecution by
seeking asylum in the United States, he surely would have
made some attempt to enter the United States during the two
years he resided in Mexico. Cui offers no explanation for his
actions consistent with his alleged fear of persecution, but his
testimony does suggest a much more likely motive for the
trip: to teach DZ Gong in Mexico. Moreover, when the IJ
asked him to explain his actions in Mexico, Cui was vague
and evasive. The IJ also reasonably found that if Cui really
feared persecution in China, he would have sought asylum in
Mexico, and would not have chosen instead to voluntarily
return to China. See Loho v. Mukasey, 531 F.3d 1016,
1017–18 (9th Cir. 2008) (holding that “[i]t is well established
in this court that an alien’s history of willingly returning to
his or her home country militates against a finding of past
persecution or a well-founded fear of future persecution”).
Cui’s ability to travel to Mexico, his lack of efforts to then
12 CUI V. HOLDER
enter the United States, and his voluntary decision to return
to China go to the heart of his asylum claim because they
undermine his assertions that he feared persecution.
Similarly, Cui’s faulty memory of whether he had to
report to the police after his arrest in 1999 and his vague, if
not inconsistent, statements about whether he had to report to
the police when he returned to China in 2002 are problematic.
It is reasonable to expect an individual to remember whether
he had been ordered to report to the police on a weekly basis.
Furthermore, the lack of any corroborative evidence of Cui’s
arrests and beatings or of the arrests and beatings of other DZ
Gong members is especially damaging where, as here, the
“trier of fact either does not believe the applicant or does not
know what to believe.”2 Sidhu, 220 F.3d at 190.
In sum, although Cui’s story, if true, might show
persecution, the inconsistencies noted by the BIA are such
that we are not compelled to accept it. Cui’s inconsistent
statements concerning police surveillance, his failure to
explain why he did not seek to enter the United States during
his two-year-stay in Mexico, and his voluntary return to
China from Mexico, provide an adequate basis for the adverse
credibility finding. See Jibril, 423 F.3d at 1135 (holding that
testimony that is implausible in light of the background
evidence can support an adverse credibility determination).
Moreover, they go to the heart of Cui’s asylum claim because
2
Neither of Cui’s witnesses, Master Yu and Mr. Shuang Xi, had any
personal knowledge of Cui’s arrests. Neither had seen Cui between the
summer of 1993 and 2003.
CUI V. HOLDER 13
they undermine his contention that he had to “escape” from
China. The petition is DENIED.3
3
The BIA denied Cui’s requests for asylum, withholding of removal
and relief under the CAT. Because Cui does not address withholding or
CAT relief in his brief, he waived any objections to the denial of these
requests. See McMillan v. United States, 112 F.3d 1040, 1047 (9th Cir.
1997). In any event, where, as here, the claim for withholding is based on
the same facts as the claim for asylum, the failure to establish eligibility
for asylum results in the failure to demonstrate eligibility for withholding.
See Halim v. I.N.S., 358 F.3d 1128, 1132 (9th Cir. 2004). While a
petitioner can demonstrate eligibility for CAT relief despite an adverse
credibility finding if “the State Department reports, standing alone,
compel[] the conclusion that [petitioner] is more likely than not to be
tortured” upon return, the State Department reports in this case do not
compel such a conclusion. See Dhital v. Mukasey, 532 F.3d 1044, 1051
(9th Cir. 2008) (quoting Almaghzar, 457 F.3d at 922–23).