Bingxu Jin v. Eric Holder, Jr. , 748 F.3d 959 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BINGXU JIN, No. 10-72413
Petitioner,
Agency No.
v. A099-062-080
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 6, 2014—Seattle, Washington
Filed April 14, 2014
Before: Raymond C. Fisher, Ronald M. Gould,
and Morgan Christen, Circuit Judges.
Opinion by Judge Gould
2 JIN V. HOLDER
SUMMARY*
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum and withholding of
removal on adverse credibility grounds.
The panel held that substantial evidence supported the
agency’s reasonable determination that petitioner was not
credible under the totality of the circumstances based on his
non-responsive demeanor during cross-examination, his
affirmative misrepresentations of his residency for the
purpose of gaining an advantage in forum, his submission of
a fraudulent church membership certification for the purpose
of gaining an advantage in forum, and the lack of detailed
testimony.
COUNSEL
Jisheng Li (argued), Law Office of Jisheng Li, Honolulu,
Hawaii, for Petitioner.
Daniel Eric Goldman (argued), Attorney; Tony West,
Assistant Attorney General; William C. Peachey, Assistant
Director; Rebecca Hoffberg, Trial Attorney, 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.
JIN V. HOLDER 3
OPINION
GOULD, Circuit Judge:
Bingxu Jin petitions for review of the Board of
Immigration Appeals’ order dismissing his appeal of an
immigration judge’s denial of his application for asylum,
withholding of removal, and relief under the Convention
Against Torture. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition for review.
I
Jin, a native and citizen of China, entered the United
States in April 2005 as a non-immigrant visitor authorized to
stay for a month. In October 2005, Jin filed an application for
asylum and withholding of removal with the Department of
Homeland Security. Jin subsequently received a Notice to
Appear, charging him with failure to comply with the
conditions of his admission to the United States. Jin
conceded removability, and appeared in front of a Los
Angeles immigration judge in January 2006, where he
confirmed the Los Angeles residence in his application. In
April 2006, Jin filed an unopposed motion to change venue to
Tucson, Arizona, and submitted a Tucson address in support
of his venue change motion. The Los Angeles court granted
Jin’s motion. In June 2007, Jin filed a second unopposed
motion to change venue to Las Vegas, Nevada, including a
declaration that he moved to Las Vegas, and it would be
inconvenient for him to travel to Tucson for his immigration
proceedings. The Tucson court granted Jin’s second motion
to change venue.
4 JIN V. HOLDER
A
In his asylum application, Jin submitted a two-page
written affidavit that described Jin’s first encounter with
Christianity, and an alleged incident with Chinese police at a
Christian family church. Jin portrayed the events as follows:
Jin was introduced to Christianity on a trip to Malaysia in
June 2002, where he met Zhao Xiaodong. Zhao “passed the
Gospel” to Jin and told Jin “the Bible story.” After their
return to China, Zhao gave Jin a Bible and invited Jin to
attend Zhao’s family church, which met at Zhao’s home. Jin
joined Zhao’s family church in September 2002, and was
baptized on Christmas that year.
On November 14, 2004, three policemen broke into
Zhao’s house, confiscated Bibles and Gospel materials, and
took Jin and other members to the local police station, where
they interrogated Jin about alleged anti-government activity.
The police demanded that Jin “confess” the identities of other
family church agitators. Jin said that he did not know, and
the police beat him with batons, and then took him to a
detention center where he was confined until November 23,
2004. Jin was again interrogated and beaten at the detention
center. Jin felt dizzy and weak because he was starving. His
wife paid 9,000 Renminbi to gain his release. Before he
departed, police told Jin to write a letter of repentance and to
report weekly. Jin was hospitalized for seven days, during
which time he learned that he had lost his job. Jin eventually
obtained a United States visa. After Jin arrived in the United
States, his wife, who was still in China, told him that police
came to their house and said that they would punish Jin
severely if they caught him.
JIN V. HOLDER 5
B
Jin’s case was heard by a Las Vegas immigration judge in
July 2009. On direct examination, Jin’s testimony repeated
the facts from his application affidavit, apart from stating the
date of arrest as November 23, 2004, which Jin later said was
November 14, 2004. On cross-examination about his
introduction to Christianity, Jin testified that Zhao “told me
some Bible stories and spread Gospel to me” during his five-
day trip to Malaysia. Jin testified that he did not practice any
religion before 2002 because he thought there was no
purpose, but that the Christians in Zhao’s church moved him
because they were “gentle, kind and gracious.”
On cross-examination about his contact with the family
church members after their arrest, Jin testified that he was
separated from everyone else and did not know what
happened to Zhao or to the other members. Jin stated that
neither he nor his family had further contact with the church
members after his release because he was under surveillance.
Jin said that he never heard what happened to the other
members. When asked if he was concerned for them, Jin said
that he could only think of himself at the time.
The government also cross-examined Jin about his
residence since arriving in the United States. Jin said that he
first lived in Los Angeles, then moved to Tucson. This
prompted the following exchange:
Government: Do you remember the address?
Jin: 3000 West Ina Street – Ina Road, Tucson.
6 JIN V. HOLDER
Government: Isn’t that actually a shopping
plaza in Tucson?
Jin: It’s not a shopping plaza.
Government: Are you sure it’s not a business
named New China Super Buffet?
Jin: I don’t quite know because I do not have
any recollection.
Jin then testified that he lived in Tucson for “a few days” and
left when there were no jobs, noting that his life at that time
was “not stable.” Jin testified that he would stay with friends
in Tucson. The IJ requested clarification about whether Jin
lived in Tucson for a few days or for a year, as set out in his
application, to which Jin responded: “[W]ell, I stay there, for
about one year but, when there’s no work there, I return to
Los Angeles.”
The government submitted a photo of the Tucson address
Jin had given, as well as documents indicating that the
address belonged to a commercial shopping center with a
full-service restaurant. The government returned to the
question of whether Jin had lived at the Tucson address and
Jin said that he was not sure.
Jin then explained that he moved his case to Tucson
“[b]ecause the attorney’s office said that it’s easier to have a
lawsuit there.” When asked directly whether he ever lived in
Arizona, Jin replied that he did not live in Arizona but stayed
with friends. The government again asked why Jin moved his
case to Arizona when he was not living there, to which Jin
responded, “At that time, my friends told me that I could find
JIN V. HOLDER 7
a job there, but I couldn’t.” The IJ interjected that Jin’s
answer was non-responsive, and Jin then said that he was told
his immigration case would follow him to Arizona. Jin
testified that he received the “3000 West Ina Road” address
in Tucson from a friend. When again asked whether he
moved his case to get an “easier” immigration judge for his
asylum claim, Jin conceded, “Well, these kind of thoughts,
more or less, play as a factor.”
The government then asked Jin what evidence he had to
prove that he lived in Las Vegas, to which Jin responded,
“Well, I live in Las Vegas.” Jin did not have a valid Nevada
driver’s license, and his expired license showed a California
address. When asked about the last time he lived in Los
Angeles, Jin testified: “I live in two places. I’m just coming
back and forth.” The IJ again questioned Jin about
transferring his case out of Los Angeles, and Jin confirmed
that he sought the venue transfer because his attorney told
him that it would be easier to get his asylum application
approved in another state.1 The IJ asked Jin where he spent
most of his time living, to which Jin again responded that he
went back and forth between Los Angeles and Las Vegas.
When told his answer was not responsive, Jin said that he
spent most of his time in Los Angeles, at the address he used
to get his work authorization and his last driver’s license. Jin
stated that the percentage was “half and half” because there
was no work in Los Angeles, but also no work in Las Vegas.
Jin further testified that if his case was not transferred to Las
Vegas, he would not come to Las Vegas because he did not
know the city.
1
On redirect, Jin changed his testimony to say that a man in Los
Angeles, not his current attorney, advised him to move his case.
8 JIN V. HOLDER
Jin had previously testified on direct that he attended
church in Las Vegas. In support, Jin had submitted a May 24,
2009 Certificate of Membership in the Korean Evangelical
Church of America Praise Church of Las Vegas, in which the
Senior Pastor of the Las Vegas church stated that Jin attended
worship services on Sundays and had been a member since
July 2007. Jin testified that he had asked his pastor to come
to his immigration hearing back in May, but his pastor was
too busy. Because his pastor could not appear, Jin had
obtained his pastor’s certification as proof.
After Jin’s admission that he went back and forth between
Los Angeles and Las Vegas, the IJ questioned whether Jin
was a regular member of the Las Vegas church. Jin in answer
responded, “Well, I told my pastor, I begged her to help me
out – I begged him to help me out because I told him that’s
what was said on my materials, that I came here around that
time period.” The IJ struck the answer as non-responsive,
and asked again about Jin’s church membership in Las Vegas.
Jin then said that he went to church in Las Vegas for the last
two months, but for most of the time he had been at the
church in Los Angeles.
The IJ then returned to the police incident in China,
leading to the following exchange:
IJ: Now, let’s go back to that incident when
the police rushed in. Do I understand – did
they knock on the door before they entered?
How did they enter? If you can just describe
it.
Jin: Is he talking about the day when we were
arrested?
JIN V. HOLDER 9
IJ: Of course that’s what I’m talking about.
Jin: Well, it was on November 14, the year
2004 –
IJ: Yes, sir. I understand that.
Jin: – in the morning. I –
IJ: At 10:00. Yes. You’ve already said that in
your – it’s in your declaration. I have a
simple question. How did – sir, please.
Listen. How did the police gain entry into
that gathering?
Jin: Well, at that time, the police just knocked
on the door.
IJ: And did someone open the door?
Jin: Yes.
IJ: And then they, they came in?
Jin: Somebody opened the door. Well, so I
don’t ask who, who it is, then –
IJ: All right, the answer is not responsive. I’m
going to ask you – you know, just listen to the
questions. You are providing information in
almost every question that you’re being asked
that we’re not asking you about.
10 JIN V. HOLDER
Jin then confirmed that the police knocked and someone
opened the door. The IJ revisited Jin’s testimony on his arrest
and interrogation, then reviewed Jin’s knowledge of
Christianity. Jin testified that his understanding of the Bible
was that “if you believe, then you will be saved. Your sin can
be saved. You will have everlasting life.”
C
In an oral decision, the IJ made observations about Jin’s
poor demeanor and questionable credibility: Jin’s demeanor
on cross-examination was evasive or non-responsive when
questioned about his residence. Jin’s demeanor reinforced
that he had only lived in Los Angeles, not in Tucson or Las
Vegas, as he had fraudulently represented to the immigration
courts to obtain changes of venue for his immigration
proceedings. The address Jin gave for his Tucson residence
was that of a restaurant. Only after further questioning did
Jin admit that he had never lived in Tucson and had also
never lived in Las Vegas. Jin sought changes in venue
hoping that his application would fare better outside of Los
Angeles. Jin lacked evidence to show that he had ever lived
in Las Vegas, and told the truth–that he had continued to live
in Los Angeles–only when pressed by the government and IJ.
Jin also admitted that he did not regularly attend church
services in Las Vegas, and that his certification of
membership in the Las Vegas church was false.
The IJ denied relief on three grounds: (1) that Jin lied
under penalty of perjury in his change of venue documents
where he fabricated his residences in Tucson and Las Vegas;
(2) that Jin submitted a fraudulent certification of church
membership in Las Vegas; and (3) that Jin provided very
general testimony about the police incident in China,
JIN V. HOLDER 11
including a misstatement of the date of the alleged incident.
The IJ also noted that Jin had made no attempt to contact the
other alleged members of the family church after they were
all arrested. Observing that this was a “clear case of forum
shopping,” the IJ made an adverse credibility determination
and denied Jin’s application for asylum and withholding of
removal.2
The BIA determined that the totality of the circumstances
supported the IJ’s adverse credibility finding based on:
(1) Jin’s non-responsive and evasive testimony; (2) Jin’s lack
of detail when testifying about his religious beliefs; and
(3) Jin’s attempt to defraud the immigration courts by lying
about his residence and place of worship. The BIA noted that
Jin admitted lying about his residence to obtain a “more
favorable immigration proceeding” and referred to Jin’s
non-responsive and evasive demeanor during his testimony.
Citing Shrestha v. Holder, 590 F.3d 1034, 1043-44 (9th Cir.
2010), the BIA observed that Jin’s misrepresentations and
“other credibility issues” did not have to concern the “heart”
of Jin’s claims for relief. Accordingly, the BIA affirmed the
IJ’s denial of Jin’s application for asylum and withholding of
removal.
2
The IJ also found that there was no evidence that Jin would be tortured
by Chinese officials upon return to China, and rejected Jin’s CAT claim.
The BIA dismissed Jin’s CAT claim on similar grounds. Jin waived any
challenge to the agency’s CAT determination because he did not raise
CAT relief in his opening brief. See Husyev v. Mukasey, 528 F.3d 1172,
1183 (9th Cir. 2008).
12 JIN V. HOLDER
II
Where the BIA’s “phrasing seems in part to suggest that
it did conduct an independent review of the record, but the
BIA’s analysis on the relevant issues is confined to a simple
statement of a conclusion, we also look to the IJ’s oral
decision as a guide to what lay behind the BIA’s conclusion.”
Id. at 1039 (internal quotation marks and citation omitted).
We review the agency’s adverse credibility determination for
substantial evidence. Id.; Soto-Olarte v. Holder, 555 F.3d
1089, 1091 (9th Cir. 2009). The REAL ID Act “significantly
restricted” appellate review of adverse credibility findings,
whereby “only the most extraordinary circumstances will
justify overturning an adverse credibility determination.”
Shrestha, 590 F.3d at 1041 (quoting Kaur v. Gonzales,
418 F.3d 1061, 1064 n.1 (9th Cir. 2005), and Jibril v.
Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005)).
A
The REAL ID Act directs the agency to make a credibility
determination based on the “totality of the circumstances”
and “all relevant factors” in determining credibility. 8 U.S.C.
§ 1158(b)(1)(B)(iii); Shrestha, 590 F.3d at 1040; see
also Ling Huang v. Holder, No. 09-72837, 2014 WL 949118,
at *2–4 (9th Cir. Mar. 12, 2014). The statute specifies
the following credibility factors: “demeanor, candor,
responsiveness of the applicant or witness, the inherent
plausibility of the applicant or witness’s account, consistency
between the applicant or witness’s written and oral
statements, internal consistency of each statement, and
consistency of statements with other evidence.” Shrestha,
590 F.3d at 1040; see 8 U.S.C. § 1158(b)(1)(B)(iii). We have
observed that these statutory factors are not exhaustive, and
JIN V. HOLDER 13
that the agency can look to relevant pre-REAL ID Act
factors, such as the “level of detail of the claimant’s
testimony.” Shrestha, 590 F.3d at 1040. At the same time,
the agency cannot be selective in its evaluation of credibility;
the agency’s analysis must be reasonable as a whole. Id. at
1040–41. The REAL ID Act permits the agency to consider
any inconsistency in the petitioner’s testimony, regardless of
whether the inconsistency implicates the “heart” of the
petitioner’s claim for relief. Id. at 1043. But utterly “trivial
inconsistencies” that “have no bearing on the petitioner’s
veracity” cannot form the basis for an adverse credibility
determination. Id. at 1043–44.
The agency is required to give “specific and cogent
reasons supporting an adverse credibility determination” to
assist appellate review. Id. at 1042.
B
Here, the agency properly considered the totality of the
circumstances in evaluating Jin’s credibility. See id. at 1040.
The IJ considered Jin’s non-responsive demeanor, his
misrepresentations of his residence, his fraudulent church
membership certification, and his lack of detail in his
testimony on the alleged police incident in China. The BIA
similarly considered Jin’s demeanor, misrepresentations and
fraud, and lack of detail, but on this the BIA focused on Jin’s
statements about his religious beliefs.
1. Evasive and Non-Responsive Demeanor
Jin contends that the agency did not provide specific
examples of Jin’s non-responsive or evasive testimony. The
IJ is not required, however, to provide a “pinpoint citation” to
14 JIN V. HOLDER
the record, but rather to identify the instances where the
petitioner is non-responsive. Id. at 1045. Here, the IJ
explained that Jin was not responsive when he was asked by
the government about his residence. The record supports the
agency’s demeanor finding, as there are many instances
where the IJ explicitly said that Jin’s answer was non-
responsive, such as: Jin’s responses to the government’s
questions about the duration and nature of his residence in
Tucson; Jin’s responses to the IJ’s question about how much
time Jin spent in Los Angeles as compared to Las Vegas; and
Jin’s responses to the IJ’s question about the duration of Jin’s
regular church membership in Las Vegas. The record further
reflects that Jin evaded questions about subjects other than his
residence, such as when the IJ questioned Jin about how the
police entered the family church during the alleged police
incident. While the IJ’s oral decision and BIA’s order did not
refer to every example of Jin’s non-responsive testimony, the
record amply demonstrates a pattern of evasive responses
that, when pursued by the government and IJ, led to Jin’s
admissions and the giving of a more accurate answer. See
id. (“[T]he record’s demonstration that Shrestha’s
unresponsiveness was a pattern throughout the hearing is one
of the circumstances that the REAL ID Act entitles the
agency to consider in assessing Shrestha’s credibility.”).
2. Misrepresentations of Residence
Jin contends that the IJ mischaracterized the record when
the IJ determined that Jin perpetrated a fraud on the
immigration courts. We disagree. There is no question that
Jin misrepresented his residence in both of his motions to
change venue. Jin’s persistent misrepresentations to the
immigration courts in Los Angeles, Tucson, and Las Vegas
are significant because they were made in an attempt to gain
JIN V. HOLDER 15
a better forum for Jin’s application. Jin eventually admitted
that a friend gave him the Tucson address, which was actually
that of a Chinese restaurant, and that he never lived in Tucson
but only stayed with friends. Jin also admitted that he spent
most of his time in Los Angeles, and did not know Las
Vegas, despite his declaration to the contrary indicating that
it would be an inconvenience to keep traveling to Tucson
from Las Vegas. Jin eventually revealed that if his
immigration case had not been in Las Vegas, he would have
been in Los Angeles. Jin may have been looking for work in
Tucson or Las Vegas, but he also admitted that he submitted
phony addresses in those locations to gain a better forum.
Substantial evidence supports the agency’s conclusion
that Jin never resided in Tucson or Las Vegas, and that his
motions to change venue to those locations were fraudulent.
These misrepresentations of residence are relevant to Jin’s
credibility because they show Jin’s purpose of forum
shopping, and his dishonesty with the immigration court.
These false statements to change venue are clearly more than
typographical errors or utterly trivial inconsistencies. See id.
at 1043–44.
3. Fraudulent Church Certification
Jin contends that he maintained consistent church
attendance if the duration specified on the Las Vegas church
certification includes the time Jin spent at the Los Angeles
branch of the same Korean church. We reject this argument.
To the contrary, that contention demonstrates how Jin
continued to live in Los Angeles and did not in fact live in
Tucson or Las Vegas. Jin’s testimony revealed that he had
only attended the church in Las Vegas for the past couple of
months, not the two years specified in the certification. Jin
16 JIN V. HOLDER
eventually admitted in his testimony that he begged his pastor
to help him, prompting the fraudulent certification many
months before his immigration hearing. We are also not
persuaded that Jin honestly revealed his misrepresentation in
front of the IJ. The record reflects that Jin continued to make
false statements in front of the Las Vegas immigration judge
before admitting falsity when questioned further by the
government or by the IJ.
4. Lack of Detail
Jin contends that the BIA erred in concluding that Jin did
not give sufficient details of his religious beliefs. The record
reflects that Jin provided little depth in his description of how
he was introduced to Christianity and what it means to him to
be Christian. In the context of this case, the BIA
appropriately considered Jin’s “lack of detail” about his
Christian beliefs as one factor in evaluating Jin’s credibility
under the totality of the circumstances.
The IJ also cited Jin’s “very general” testimony about the
alleged incident with police in China, referring to Jin’s
misstatement of the date of the incident and Jin’s lack of
contact with other members of the family home church after
the members’ alleged detention. The record further reflects
that Jin first said in his affidavit that the police “broke into”
the family church, but only upon persistent questioning by the
IJ did Jin change his testimony to say that someone in the
home church opened the door for the police. Non-trivial
incongruities in Jin’s account of this key incident
foundational to Jin’s asylum claim are relevant to evaluating
Jin’s credibility under the totality of the circumstances.
JIN V. HOLDER 17
As we noted in Shrestha, the REAL ID Act does not
dictate the weight the agency must give to each relevant
factor. Id. at 1040. Here, the agency cited Jin’s lack of detail
in his knowledge of Christianity and his account of the police
incident in China, but gave more weight to Jin’s non-
responsive demeanor, Jin’s repeated misrepresentations of his
residence, and Jin’s submission of a fraudulent church
membership certification.
We conclude that substantial evidence supports the
agency’s reasonable determination that Jin was not credible
under the totality of the circumstances. Those circumstances
include: (1) Jin’s non-responsive demeanor during cross-
examination; (2) affirmative misrepresentations of his
residency for the purpose of gaining an advantage in forum;
(3) submission of a fraudulent church membership
certification for the purpose of gaining an advantage in
forum, and (4) lack of detailed testimony. In the absence of
credible testimony, the agency properly denied Jin’s asylum
and withholding of removal claims. See id. at 1048.
PETITION FOR REVIEW DENIED.