Ling Huang v. Eric Holder, Jr. , 744 F.3d 1149 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LING HUANG, No. 09-72837
Petitioner,
Agency No.
v. A095-024-123
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 5, 2013—San Francisco, California
Filed March 12, 2014
Before: Jerome Farris, Ferdinand F. Fernandez,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
2 HUANG V. HOLDER
SUMMARY*
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of an application for asylum,
withholding of removal, and protection under the Convention
Against Torture.
The panel held that the evidence did not compel the
conclusion that petitioner was credible, where the IJ’s well-
supported demeanor finding was entitled to special deference,
and the IJ appropriately considered the record as a whole and
the totality of the circumstances. The panel held that the
remaining evidence in the record did not compel the
conclusion that petitioner met her burden of proof for relief.
COUNSEL
Anders L. Johnson (argued), Law Offices of Vaughan de
Kirby, San Francisco, California, for Petitioner.
Tony West, Assistant Attorney General; Michelle Gorden
Latour, Assistant Director; Tracie N. Jones and Joseph A.
O’Connell (argued), Attorneys, United States Department of
Justice, Civil Division, Office of Immigration Litigation,
Washington D.C., for Respondent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HUANG V. HOLDER 3
OPINION
IKUTA, Circuit Judge:
Ling Huang, a native and citizen of China, petitions for
review of the denial of her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (CAT) by the Board of Immigration Appeals
(BIA). Because the record in this case does not compel the
conclusion that Huang’s testimony was credible and
persuasive, we affirm the immigration judge’s determination
that Huang failed to carry her burden of proving her
eligibility for relief.
I
Huang entered the United States on May 11, 2006 on a
student visa, and applied for asylum and withholding of
removal on April 12, 2007. Huang conceded her
inadmissibility, and appeared before an immigration judge
(IJ) for a merits hearing on January 10, 2008.
Huang testified as follows at the merits hearing. While
attending an underground Christian “house church” in China,
she was arrested and taken to the police station. While in
police custody, a female officer pulled her hair, pushed her to
the ground, and kicked her. Huang was then placed in a cell
and forced to perform manual labor, such as cleaning toilets
and moving bricks. After three days, Huang’s family bailed
her out of jail for 8,500 RMB and she returned home. She
provided a bail receipt from China for the crime of “violating
the management of public order with a mob,” but it did not
reference her participation in a house church or otherwise
corroborate Huang’s testimony. As a condition of her
4 HUANG V. HOLDER
release, Huang signed a document promising that she would
not continue to participate in underground Christian
activities. She ceased attending underground churches after
her arrest, but continued to practice Christianity through
private prayer.
Following this incident, Huang secured a student visa to
the United States with the help of a private agency
specializing in foreign study trips. Upon her arrival in the
United States, Huang studied at Merced College for six
months, but ended her studies after running out of money to
pay tuition.
Huang claimed that she continued to practice Christianity
while in the United States. She stated she was baptized on
April 8, 2007, and provided photographs which she claimed
showed her baptismal ceremony, which was performed by
another member of the church. According to her testimony,
Huang then began to attend a different church in Modesto,
California in August 2007, but stopped going after a few
months in order to help her uncle on the weekends. Huang did
not produce a baptismal certificate or any other evidence
corroborating her church attendance in either the United
States or in China. Huang testified that she observed Easter
and Christmas, and she recited the Lord’s Prayer and other
Christian prayers.
In a decision issued on January 10, 2008, the IJ found that
Huang’s testimony was not credible. She noted two reasons
for this conclusion. First, the IJ found that Huang’s demeanor
undermined her credibility, noting that Huang paused
frequently while testifying “as if to assess the impact of the
answer she provided.” Further, the IJ found that Huang’s
testimony was “extremely superficial,” and “could easily
HUANG V. HOLDER 5
have been memorized.” Second, the IJ noted that much of
Huang’s testimony was unpersuasive and not supported by
reasonably obtainable corroborating evidence. While the
photographs and bail bond receipt provided some evidence
that Huang was a Christian who had participated in a home
church, they were insufficient to prove that she was eligible
for asylum or other relief. Because Huang’s testimony was
not credible, the IJ held the evidence in the record was
“insufficient to meet [Huang’s] burden of proof” that she was
eligible for asylum or withholding. In addition, the IJ denied
her protection under CAT because there was no evidence that
Chinese authorities would torture Huang on her return to
China.
Huang appealed the denial of her claim to the BIA, which
affirmed the IJ’s ruling in full. Huang then filed a timely
petition for review on September 3, 2009.
II
We have jurisdiction under 8 U.S.C. § 1252 to review
final orders of removal. Li v. Holder, 656 F.3d 898, 901 (9th
Cir. 2011). We review “denials of asylum, withholding of
removal, and CAT relief for substantial evidence and will
uphold a denial supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”
Garcia Milian v. Holder, — F.3d —, No. 09-71461, 2014
WL 555138, at *2 (9th Cir. Feb. 13, 2014) (quoting
Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010))
(internal quotation marks omitted). The BIA’s “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). In other words, in order to reverse the BIA,
“we must determine ‘that the evidence not only supports [a
6 HUANG V. HOLDER
contrary] conclusion, but compels it—and also compels the
further conclusion’ that the petitioner meets the requisite
standard for obtaining relief.” Garcia-Milian, 2014 WL
555138, at *2 (alterations in original) (quoting INS v.
Elias–Zacarias, 502 U.S. 478, 481 n.1 (1992)). Where, as
here, the BIA adopts the IJ’s decision and adds some of its
own analysis, the panel reviews both decisions. Kaur v.
Ashcroft, 388 F.3d 734, 736 (9th Cir. 2004).
To qualify for asylum, an applicant must show that she is
a “refugee,” defined as one who “is unable or unwilling to
return to [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 bar for
withholding of removal is higher; an applicant “must
demonstrate that it is more likely than not that he would be
subject to persecution” on one of the grounds listed above.
Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001) (internal
quotation marks omitted). Finally, CAT protects applicants
who show that they are “more likely than not to be tortured in
the country of removal.” Zheng v. Holder, 644 F.3d 829, 835
(9th Cir. 2011) (internal quotation marks omitted).
An applicant bears the burden of proving eligibility for
asylum, withholding of removal, and CAT protection.
8 U.S.C. § 1158(b)(1)(B); see also 8 U.S.C. § 1231(b)(3)(C);
Zheng, 644 F.3d at 835.
III
Because Huang’s application for asylum was made after
May 11, 2005, the REAL ID Act of 2005 applies. Pub. L.
No. 109-13, 119 Stat. 231 (2005). This Act modified the
HUANG V. HOLDER 7
standards governing our review of an agency’s credibility
determinations. See 8 U.S.C. § 1158(b)(1)(B).
Under the REAL ID Act, there is no presumption that an
applicant for relief is credible, and the IJ is authorized to base
an adverse credibility determination on “the totality of the
circumstances” and “all relevant factors.” 8 U.S.C.
§ 1158(b)(1)(B)(iii)1; see also Ren v. Holder, 648 F.3d 1079,
1084 (9th Cir. 2011) (“Under the REAL ID Act, the IJ may
base an adverse credibility determination on any relevant
factor that, considered in light of the totality of the
circumstances, can reasonably be said to have a bearing on a
petitioner’s veracity.” (internal quotation marks omitted)).
Among other factors, an IJ may base an adverse credibility
determination on the “demeanor, candor, or responsiveness”
1
Section 1158(b)(1)(B)(iii) states in relevant part:
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s
written and oral statements (whenever made and
whether or not under oath, and considering the
circumstance 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 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).
8 HUANG V. HOLDER
of the applicant. 8 U.S.C. § 1158(b)(1)(B)(iii). “All aspects
of the witness’s demeanor—including the expression of his
countenance, how he sits or stands, whether he is inordinately
nervous, his coloration during critical examination, the
modulation or pace of his speech and other non-verbal
communication—may convince the observing trial judge that
the witness is testifying truthfully or falsely.” Shrestha v.
Holder, 590 F.3d 1034, 1042 (9th Cir. 2010) (internal
quotation marks omitted). The IJ may also consider the
inherent plausibility of the applicant’s account, its
consistency with the applicant’s other written or oral
statements, other evidence of record, “or any other relevant
factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
In light of this statutory language, we have concluded that
“the REAL ID Act requires a healthy measure of deference to
agency credibility determinations.” Shrestha, 590 F.3d at
1041; see also Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1
(9th Cir. 2005) (explaining that under the REAL ID Act,
“only the most extraordinary circumstances will justify
overturning an adverse credibility determination”). This
deference “makes sense because IJs are in the best position to
assess demeanor and other credibility cues that we cannot
readily access on review.” Shrestha, 590 F.3d at 1041. “[A]n
immigration judge alone is in a position to observe an alien’s
tone and demeanor, to explore inconsistencies in testimony,
and to apply workable and consistent standards in the
evaluation of testimonial evidence.” Id. (quoting H.R. Rep.
No. 109-72, at 167 (2005), reprinted in 2005 U.S.C.C.A.N.
240, 293) (internal quotation marks omitted). By virtue of
their expertise, IJs are “uniquely qualified to decide whether
an alien’s testimony has about it the ring of truth.” Id.
(internal quotation marks omitted).
HUANG V. HOLDER 9
The need for deference is particularly strong in the
context of demeanor assessments. Such determinations will
often be based on non-verbal cues, and “[f]ew, if any, of these
ephemeral indicia of credibility can be conveyed by a paper
record of the proceedings and it would be extraordinary for a
reviewing court to substitute its second-hand impression of
the petitioner’s demeanor, candor, or responsiveness for that
of the IJ.” Jibril, 423 F.3d at 1137. Indeed, even before the
enactment of the REAL ID Act, we recognized the need to
give “special deference to a credibility determination that is
based on demeanor,” Singh-Kaur v. INS, 183 F.3d 1147,
1151 (9th Cir. 1999) (internal quotation marks omitted),
because the important elements of a witness’s demeanor that
“may convince the observing trial judge that the witness is
testifying truthfully or falsely” are “entirely unavailable to a
reader of the transcript, such as the Board or the Court of
Appeals.” Mendoza Manimbao v. Ashcroft, 329 F.3d 655,
662 (9th Cir. 2003) (internal quotation marks omitted). The
same principles underlie the deference we accord to the
credibility determinations of juries and trial judges. See, e.g.,
United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir.
2000) (“Because determinations of impartiality may be based
in large part upon demeanor, this court typically accords
deference to the district court’s determinations.”).
Despite our broad deference to the finder of fact’s
observations, we preserve meaningful appellate review of
agency decisions, see 8 U.S.C. § 1252(a)(2)(D), by requiring
the agency “to provide specific instances in the record that
form the basis of the agency’s adverse credibility
determination,” Shrestha, 590 F.3d at 1042. “[T]he IJ’s
demeanor findings should specifically point out the
noncredible aspects of the petitioner’s demeanor.” Id. For
example, “[t]o support an adverse credibility determination
10 HUANG V. HOLDER
based on unresponsiveness, the BIA must identify particular
instances in the record where the petitioner refused to answer
questions asked of him.” Id. (alteration in original) (quoting
Singh v. Ashcroft, 301 F.3d 1109, 1114 (9th Cir. 2002)
(citation omitted)).
IV
On appeal, Huang contends that the IJ erred in making an
adverse credibility determination based on her demeanor
because the IJ’s demeanor findings were too general and the
IJ failed to identify any specific instances of non-verbal
conduct supporting the adverse credibility finding.
We disagree. The IJ stated that she “carefully observed
[Huang’s] demeanor while she was on the witness stand.” In
explaining one reason why Huang’s demeanor “was troubling
to the Court,” the IJ pointed out that Huang “hesitated
frequently as if to assess the impact of the answer she
provided.” The transcript of Huang’s testimony documents
a pattern of long pauses after certain questions, followed by
an explanation or excuse. For example, when asked by the
government if she ever had a baptismal certificate, the
transcript notes that there was “[n]o audible response.” Only
after the question was repeated did Huang explain that she
could get the certificate if she needed it, but thought the
photos she provided were sufficient.
Later in the hearing, the IJ asked Huang why she had not
corroborated her attendance at a California church with a
letter or other documentary evidence. The transcript states
that Huang provided “[n]o audible response,” and the IJ
stated “Let the record reflect there’s a long pause, as there
have been several times with the respondent’s answers.”
HUANG V. HOLDER 11
Again, only when the question was repeated, did Huang
respond “Personally, I think if my heart is genuinely with the
God, following the God and everything, the piece of paper
will not, will not show everything.”
Finally the IJ asked several questions to determine why
Huang had brought almost no corroborating evidence to
court.
Q: Well, didn’t your attorney talk to you
about what was needed to prepare for the case
today?
A: (No audible response.)
***
Q: What are you thinking about? That’s a
yes or no question.
A: (No audible response.)
Q: Did your attorney talk to you about what
would be expected in court?
A: Yes, he did.
Q: Then your baptismal certificate and letters
from people in the church would have been
obvious documents that should have been
presented. I don’t understand why you seem
so surprised that the Court would like to see
some things like that.
12 HUANG V. HOLDER
A: I, I thought that if I could provide the
photo showing the procedure of the baptism,
it would be the same. This was my personal
thought of course.
This documentation of Huang’s non-responsive hesitations is
sufficient to support the IJ’s demeanor finding, see Shrestha,
590 F.3d at 1042, which in turn sustains the IJ’s adverse
credibility determination.
In making this adverse credibility determination, the IJ
complied with the statutory requirement of reviewing the
record as a whole and discussing the “totality of the
circumstances” underlying the adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii) (describing
factors on which the IJ may base a credibility determination
in light of “the totality of the circumstances, and all relevant
factors”). First, the IJ appropriately considered “relevant
evidence that tends to contravene a conclusion that a given
factor undermines credibility.” Shrestha, 590 F.3d at 1044.
The IJ noted that Huang gave a plausible explanation for the
inconsistencies between her testimony at the initial asylum
interview and her testimony at the merits hearing.
Accordingly, the IJ did not consider Huang to be less credible
on account of those inconsistencies. Similarly, the IJ
explained that while Huang’s “knowledge of Christian faith
was extremely superficial and vague . . . she was able to
recite at least one well-known Christian prayer.” The IJ
therefore did not view this aspect of Huang’s testimony as
weighing against her credibility.
Further, the IJ not only considered Huang’s demeanor, but
also indicated that Huang’s testimony was not persuasive or
sufficiently specific to carry her burden of proof. See
HUANG V. HOLDER 13
8 U.S.C. § 1158(b)(1)(B)(ii) (requiring an applicant to
“satisfy the trier of fact that the applicant’s testimony is
credible, is persuasive, and refers to specific facts sufficient
to demonstrate that the applicant is a refugee.”) The IJ stated
that Huang’s testimony was “extremely superficial” and
“could easily have been memorized,” and therefore did “little
to bolster her veracity.” We have held that the IJ may
consider the “level of detail of the claimant’s testimony to
assess credibility.” Shrestha, 590 F.3d at 1040. Huang’s
testimony here is not so thorough and comprehensive as to
compel a contrary conclusion.
Finally, the IJ also noted that Huang’s testimony was not
supported by reasonably obtainable corroborating evidence.
Cf. Aden v. Holder, 589 F.3d 1040, 1045 n.13 (9th Cir. 2009)
(“It is hard to imagine a civil trial in which the party bearing
the burden of proof asked the trier of fact to take his
uncorroborated word for a proposition reasonably subject to
corroboration.”). Despite being represented by counsel and
acknowledging that her lawyer had told her how to prepare
for her case, Huang did not provide documentary evidence
supporting her claim that she was a practicing Christian other
than the photographs and bail bond receipt. These items do
not provide persuasive documentation of Huang’s story.
Because the IJ’s well-supported demeanor findings are
entitled to special deference, Singh-Kaur, 183 F.3d at 1151,
and the IJ appropriately considered the record as a whole and
“the totality of the circumstances,” 8 U.S.C.
§ 1158(b)(1)(B)(iii), we are not compelled to conclude that
Huang was credible. We therefore defer to the IJ’s adverse
credibility determination, and must give no weight to
Huang’s testimony. The remaining evidence in the record
does not compel us to overturn the IJ’s determination that
14 HUANG V. HOLDER
Huang failed to carry her burden of proving eligibility for
asylum.
Because Huang failed to carry her burden for asylum, we
also hold that the record does not compel the conclusion that
she meets the more stringent standard for withholding of
removal. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003). Nor does the record compel the conclusion that
Huang is eligible for protection under the Convention Against
Torture. “[S]he has not demonstrated that, more likely than
not, she will be tortured at the instigation of, or with the
acquiescence of” the Chinese government. Silaya v.
Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). Accordingly,
we deny her petition for review.
PETITION DENIED.