Jiang Jing Jiang v. Gonzáles

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 04-2684

JING JING JIANG,

Petitioner,

v.

ALBERTO R. GONZÁLES,
UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.

Wei Jia, for petitioner.
Lisa Wilson Edwards, with whom Anthony W. Norwood, Mark L.
Gross, Attorneys, United States Department of Justice, and Peter D.
Keisler, Assistant Attorney General, Civil Division, were on brief,
for respondent.

December 21, 2005
 TORRUELLA, Circuit Judge. Petitioner Jing Jing Jiang

petitions us to review a decision of the Board of Immigration

Appeals ("BIA") affirming an Immigration Judge's ("IJ's") denial of

her asylum application.1 We deny the petition for review and

affirm the decision of the BIA.

I. Background

Jiang is a native and citizen of China who entered the

United States at the Los Angeles International Airport on July 19,

2001, without a valid entry document. She was sixteen years old at

the time. On July 30, 2001, the Immigration and Naturalization

Service ("INS")2 issued a Notice to Appear charging that Jiang was

removable under § 212(a)(7)(A)(i)(I) of the Immigration and

Nationality Act ("INA"), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an

alien not in possession of a valid immigration document. On

July 9, 2002,3 Jiang admitted the allegations against her, conceded

1
The BIA also denied Jiang's application for withholding of
removal. While Jiang states in the concluding paragraph of her
brief that she is eligible for withholding of removal, she has not
addressed the issue in any other part of her brief. We therefore
deem the issue waived. See Qin v. Ashcroft, 360 F.3d 302, 305 n.5
(1st Cir. 2004).
2
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
3
Jiang was originally ordered to appear before an IJ in San
Pedro, California. However, she filed two motions for a change of
venue, both of which were granted. In the first, she requested
that her removal proceeding be moved to New York, New York, where

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removability, and filed applications for asylum and withholding of

removal. Jiang testified at a hearing before an IJ on February 4,

2003. We draw the following facts from this testimony and the

documents Jiang presented in support of her applications.

Jiang's father owned a bookstore that he opened in 1997

in Wuhan Changle Township in China. Jiang worked in the bookstore

soon after graduating from middle school in July 2000. In October

2000, Jiang's father began practicing Falun Gong,4 which the

Chinese government has classified as a cult and banned. Jiang's

father also sold Falun Gong books in his bookstore. Jiang, her

mother, and her sister do not practice Falun Gong.

In May 2001, Jiang's father went into hiding.5 He was

gone for four or five days before Jiang noticed his absence.

she was living with her uncle. In the second, she requested a
change of venue to Boston, Massachusetts, which is where her
hearing eventually took place.
4
According to the U.S. Department of State, Falun Gong

blends aspects of Taoism, Buddhism, and the meditation
techniques and physical exercises of qigong (a
traditional Chinese exercise discipline) with the
teachings of Falun Gong leader Li Hongzhi . . . .
Despite the spiritual content of some of Li's teachings,
Falun Gong does not consider itself a religion and has no
clergy or places of worship.

2002 International Religious Freedom Report: China (U.S. Dep't of
State, 2002).
5
There is no indication in the record of what exactly prompted
Jiang's father to go into hiding, although Jiang stated he went
into hiding from the government because he practiced Falun Gong.

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According to Jiang, her father was often gone from their home for

days at a time while visiting friends or relatives, and she thus

did not think it strange when she did not see him for a few days.

Around the same time, government officials came to the

family bookstore while Jiang was working there. The officials were

looking for Jiang's father and told Jiang that they knew her father

practiced Falun Gong. Jiang told the officials that she did not

know where her father was. After the officials repeated their

questions a few times, they took Jiang with them. Jiang was taken

to a very small room in a building that looked like a local police

station. The room had a small window just above the bed. The next

day, the officials came to the room and told Jiang to give them

"the real answers."

The officials detained Jiang for around a week, during

which time they gave her one meal per day. They never physically

harmed her. On the last evening of her captivity there was a

typhoon, during which the window above her bed shattered. Jiang

was able to climb out the window and jump to the ground below.

Although she did not know exactly where she was, Jiang walked until

she found a telephone, which she used to call her mother. Jiang's

mother sent a car to pick her up, and Jiang went into hiding. She

stayed at an aunt's house for one evening, then stayed in a hotel

for a week or two. Jiang's mother arranged her departure from

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China to the United States. Jiang's mother and sister still live

in China and have not reported any problems to Jiang.

The IJ denied Jiang's applications, finding that Jiang's

testimony was not credible. First, the IJ found it odd that

Jiang's father was missing for four or five days before Jiang

noticed and wondered how Jiang was able to operate the bookstore

without her father. Second, the IJ stated that "[i]t simply is not

reasonable . . . that the police officers would question a then 16-

year-old girl as to the whereabouts of her father when, if they

truly wanted to know where her father was, they would have

questioned [Jiang's] mother." Third, the IJ disbelieved Jiang's

testimony that she was held in a small room for a week by the

police because it did not make sense that the police would hold

Jiang and not Jiang's mother. Fourth, the IJ disbelieved Jiang's

testimony regarding her escape, stating that "[i]t would certainly

seem to me that if she was being held somewhere in detention . . .

that she would have been held in a cell in the police station and

not just a small room with a window." Fifth, the IJ disbelieved

Jiang's testimony regarding how she was able to contact her mother

and how her mother was able to have a car pick her up. The IJ

stated that "[o]ne would wonder where the respondent would have

called from, and how her mother would have known where to send a

taxi to." Finally, the IJ stated that, if Jiang had really

escaped, then the police would have sent officers after her, and

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"certainly . . . would have gone to the mother's home, and . . .

very likely would have held the mother in detention. All of these

things did not happen." The IJ also stated that Jiang was not a

practitioner of Falun Gong and concluded that, at best, "she was

not being persecuted because she was a Falun Gong practitioner, but

rather abused by the police, who wanted to find her father."

Jiang appealed to the BIA, which adopted and affirmed the

IJ's decision on November 16, 2004. Jiang now contests the BIA's

decision.

II. Discussion

In order to establish eligibility for asylum, an asylum

applicant has the burden of establishing that she is a "refugee."

8 U.S.C. § 1158(b)(1)(B); 8 C.F.R. § 208.13(a). "Refugee" means

any person who is outside of her home country and "is unable or

unwilling to return to . . . that 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). An applicant may meet

this burden by showing past persecution -- which creates a

rebuttable presumption of a well-founded fear of future

persecution, Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003)

-- or a well-founded fear of future persecution on account of one

of the five statutory grounds. 8 C.F.R. § 208.13(b)(1).

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 To establish past persecution, an applicant must provide

"conclusive evidence" that she was targeted on any of the five

grounds. Fesseha, 333 F.3d at 18. To show a well-founded fear of

future persecution, "the asylum applicant's fear must be both

genuine and objectively reasonable." Aguilar-Solís v. INS, 168

F.3d 565, 572 (1st Cir. 1999).

We review decisions of the BIA under the substantial

evidence standard, Mihaylov v. Ashcroft, 379 F.3d 15, 17 (1st Cir.

2004), and will uphold the BIA's decision if it is "'supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.'" INS v. Elías-Zacarías, 502 U.S. 478, 481

(1992)(quoting 8 U.S.C. § 1105a(a)(4)). Under this standard, "[t]o

reverse the BIA finding, we must find that the evidence not only

supports that conclusion, but compels it." Id. at 481 n.1

(emphasis in original).

A. Credibility

In order to establish eligibility for asylum, "an alien

must support [her] claim of persecution through credible testimony.

Credible testimony, standing alone, may be adequate to sustain the

alien's burden of proof. But if the proffered testimony is not

credible, it may be either disregarded or sharply discounted

. . . ." Nikijuluw v. Gonzáles, 427 F.3d 115, 121 (1st Cir. 2005)

(internal citation omitted).

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 Both Jiang and the government took the position in their

briefs that the BIA did not address the IJ's adverse credibility

determination and, in effect, assumed that Jiang presented credible

testimony. However, having carefully reviewed the BIA's decision,

we believe that the parties have erroneously interpreted that

decision.

The BIA stated that it agreed with the IJ's decision

to the extent that the [IJ] determined that
[Jiang] failed to carry her burden of proof
with respect to her claim for asylum . . . In
this regard, the [IJ] identified a number of
assertions by [Jiang] which are of such a
nature that they would reasonably require
corroboration in order to merit the assignment
of full probative value. However, the record
is devoid of such objective evidence.

(emphasis added). It is true that the BIA agreed with the IJ's

decision because it found that Jiang had failed to carry her burden

of proof. However, it appears to us that the reason the BIA found

Jiang had failed to carry her burden of proof was that portions of

her testimony were not entirely credible and therefore required

corroborative evidence, which Jiang did not provide.

This conclusion is bolstered by two other portions of the

BIA's decision. First, in support of its statement that Jiang

should have provided certain corroborative evidence, the BIA cited

Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000). Sidhu involved a

situation where the BIA made an adverse credibility finding and

denied the petitioner's asylum application because the petitioner

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failed to present certain corroborating evidence. As in Sidhu, id.

at 1092, it appears that the BIA in the instant case was affirming

the IJ's adverse credibility determination and requiring

corroborative evidence. Second, the BIA stated near the end of its

decision that "[i]nasmuch as we are in agreement with the decision

of the [IJ] as noted above, we adopt and affirm his decision." The

IJ's decision focused almost exclusively on Jiang's credibility.

It would not make sense for the BIA to state that it adopted the

IJ's decision if it in fact did not even purport to address the

majority of that decision. For all these reasons, we believe that

the BIA affirmed the IJ's credibility determination.6

When "the BIA adopt[s] the IJ's credibility determination

and decision, we review the IJ's decision as the adopted final

agency determination." Chen v. Gonzáles, 418 F.3d 110, 113 (1st

Cir. 2005). We review the credibility determinations of the IJ or

BIA under the substantial evidence standard and will uphold the

credibility determination "'unless any reasonable adjudicator would

be compelled to conclude to the contrary.'" Kheireddine v.

Gonzáles, 427 F.3d 80, 88 (1st Cir. 2005) (quoting 8 U.S.C. § 1252

(b)(4)(B)). Often adverse credibility determinations are made as

a result of inconsistencies in a petitioner's testimony or the

6
Jiang cites to several cases in her brief wherein the BIA did
not address the petitioner's credibility yet required certain
corroborative evidence. However, in those cases the BIA explicitly
stated that it was either not addressing credibility or was
assuming credibility. That is not the situation in Jiang's case.

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demeanor of the petitioner while testifying. See, e.g., Long v.

Gonzáles, 422 F.3d 37, 39-41 (1st Cir. 2005) (inconsistencies);

Falae v. Gonzáles, 411 F.3d 11, 15 (1st Cir. 2005) (demeanor). In

the instant case, however, the IJ focused on aspects of Jiang's

testimony that he found inherently implausible. We have stated

that where adverse credibility findings are based on "analysis of

testimony rather than on demeanor [such findings] deserve less than

usual deference." Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir.

1994) (internal quotation marks and citation omitted).

We believe that some of the "implausibilities" identified

by the IJ were adequately explained by Jiang in her testimony. For

example, the IJ found it "curious" that Jiang's family did not

discuss the fact that Jiang's father was going into hiding, and

that Jiang's father was gone for four or five days before she

noticed his absence. Jiang explained this by stating that her

father was often away for days at a time visiting friends and

relatives, so she thought nothing of his absence at first. Jiang

further explained that her mother did not immediately tell her that

her father had gone into hiding because she was still a child at

the time and her mother did not want her to worry. This

explanation is plausible, in that parents often keep problems from

their children.

However, other implausibilities were not so easily

explained. For example, Jiang stated that she escaped from

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captivity when a typhoon broke a small window in her cell, so that

she was then able to climb through and jump to the ground below.

As the IJ noted, if Jiang were being held as she claimed, it is

unlikely that she was being held in a room with a window which she

could access and escape through. Further, if officers had taken

Jiang and she had escaped, it is highly likely that the officers

would have at the least questioned her mother about Jiang's

whereabouts, put Jiang's mother under surveillance, or even put

Jiang's mother in detention. After all, the authorities would have

still been looking for Jiang's father, and would also want to find

Jiang, who had escaped. It does not appear from the record that

any of this ever occurred. In fact, Jiang testified that her

mother and sister still live in the same location in China, and

neither has reported any problems to Jiang since she came to the

United States.

Reviewing for substantial evidence, we are not compelled

to conclude that the BIA and IJ erred in the adverse credibility

determination. While we think that certain aspects of Jiang's

testimony which the IJ found problematic were adequately explained

by Jiang, other portions were not. On the whole, Jiang's story

simply was not entirely credible and would have been greatly helped

by corroborative evidence such as an affidavit from Jiang's mother

(who was able to send a copy of the bookstore's business license to

Jiang). We therefore affirm the adverse credibility determination.

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B. Past Persecution

The adverse credibility determination disposes of Jiang's

claim of past persecution. However, we wish to note that, even

assuming Jiang's testimony was credible, her experiences do not

rise to the level of past persecution.7 "To qualify as

persecution, a person's experience must rise above unpleasantness,

harassment, and even basic suffering." Nelson v. INS, 232 F.3d

258, 263 (1st Cir. 2000) (no persecution where petitioner was

briefly detained on three separate occasions, physically abused,

and occasionally under surveillance). In the instant case,

although Jiang was allegedly detained for a week, she was fed every

day and was never physically harmed in any way. We are not

compelled to find that her alleged experiences constituted past

persecution.

C. Well-Founded Fear of Future Persecution

Since Jiang has not proven past persecution, she is not

entitled to a presumption of a well-founded fear of future

persecution. However, she can still demonstrate a well-founded

fear if she shows that her fear is "both genuine and objectively

reasonable." Aguilar-Solís, 168 F.3d at 572. Both the objective

and subjective prongs of this test depend on an applicant's

credibility. To satisfy the subjective prong, the applicant must

7
We believe this to be true even considering Jiang's age
(sixteen) at the time of the events that allegedly occurred in
China.

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show her fear is genuine. Palma-Mazariegos v. Gonzáles, 428 F.3d

30, 35 (1st Cir. 2005). To satisfy the objective prong, the

applicant "must show by credible evidence that her fear of future

persecution is reasonable." Laurent v. Ashcroft, 359 F.3d 59, 65

(1st Cir. 2004).

Jiang claims that the BIA failed to consider whether

Jiang had a well-founded fear of future persecution. Jiang is

correct that the BIA never explicitly stated that Jiang did not

have a well-founded fear. However, the BIA did state that Jiang

had failed to carry her burden of proof for her asylum claim, and

it gave as its main reason her lack of credibility and the need for

certain corroborative evidence. The BIA's opinion certainly was

not a model of clarity, and, in a different situation, we might be

compelled to vacate its order. See, e.g., Halo v. Gonzáles, 419

F.3d 15, 19 (1st Cir. 2005) (vacating BIA's order where the BIA

gave only a conclusory explanation for finding the petitioner did

not make sufficient showing of persecution to meet burden of

proof). In the instant case, however, we believe it is clear that

the BIA and IJ based their decisions on the adverse credibility

determination. Consequently, Jiang cannot meet either prong of the

well-founded fear test. We therefore find substantial evidence to

support the BIA's denial of Jiang's asylum claim.8

8
We also note that the fact that Jiang's mother and sister
continue to live in China and have not reported any problems to
Jiang undercuts Jiang's claim of having a well-founded fear. See

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 III. Conclusion

For the foregoing reasons, the BIA's denial of Jiang's

asylum claims is supported by substantial evidence. We deny the

petition for review and affirm the decision of the BIA.

Affirmed.

Ali v. Gonzáles, 401 F.3d 11, 16 (1st Cir. 2005) (citing the fact
that the petitioner's family still lived safely in Ethiopia as one
of the reasons that petitioner had failed to prove a well-founded
fear).

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