United States Court of Appeals
For the First Circuit
No. 05-2562
WEIPING ZHENG,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Cyr, Senior Circuit Judge.
Alexander K. Yu, on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Terri J.
Scadron, Assistant Director, and Sin Wong, Attorney, Office of
Immigration Litigation, U.S. Department of Justice, on brief for
respondent.
September 26, 2006
CYR, Senior Circuit Judge. Weiping Zheng petitions for
review of the Board of Immigration Appeals’ (BIA) decision
affirming an immigration judge’s denial of his application for
asylum and withholding of deportation. We affirm.
I
BACKGROUND
Zheng, a native and citizen of the People’s Republic of
China, illegally entered the United States in 2002. In 2003, the
Immigration and Naturalization Service (INS) initiated removal
proceedings in Los Angeles. Zheng conceded removability, then
applied for asylum based on his contention that he had experienced
religious persecution in China due to the fact he is a Christian.
On January 22, 2003, Zheng’s attorney had the case transferred to
Boston, then notified the court that he was withdrawing as Zheng’s
counsel. Three months later the same attorney appeared at a
telephonic calendar hearing in Boston, and asserted that he had
agreed to continue his representation of Zheng. The court
scheduled a merits hearing for February 17, 2004, at which Zheng
appeared without counsel. The immigration judge ("IJ") noted the
fact for the record, but without inquiring whether Zheng was still
represented by counsel.
Zheng testified at length regarding the religious
persecution he allegedly suffered in China, stating that he had
“become a Catholic with [his] grandparents” but that his parents
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were not Catholic,” but Buddhists. Zheng was arrested, sometime in
2002, for distributing religious leaflets in public. The arrest
occurred at 10:00 p.m. Zheng was unable to describe the contents
of the leaflets in any detail, except that the leaflets were “about
the Bible and God protecting families.” Zheng maintained that the
police had detained and tortured him for four days, then released
him on “probation” without lodging any charge against him after his
parents posted bail. According to Zheng, the police required that
he report once a week following his release.
At the conclusion of his testimony, Zheng asked that the
IJ transfer the case to Tennessee, where he was then residing. The
IJ denied the request as untimely, then proceeded to rule on the
merits of Zheng's asylum application. The IJ concluded that
Zheng’s testimony contained several inconsistencies, hence was not
creditworthy. Whereupon the IJ denied the Zheng asylum application
and request for withholding of deportation, then ordered that he be
deported.
On appeal to the Board of Immigration Appeals (BIA),
Zheng contended that (i) the IJ violated his due process rights by
failing to ensure that he was represented by counsel at the merits
hearing, and (ii) the IJ’s credibility determination was not
supported by substantial evidence. After the BIA affirmed the IJ’s
decision, Zheng petitioned for review of the BIA’s decision.
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II
DISCUSSION
A. The Due Process Claim
Zheng reiterates the claim that the IJ was obligated to
inquire, at the February 17, 2004, hearing, as to why Zheng was no
longer represented by counsel. Due process claims asserted in
deportation proceedings are reviewed de novo. See Kheireddine v.
Gonzales, 427 F.3d 80, 83 (1st Cir. 2005). Although the Sixth
Amendment does not accord prospective deportees a right to counsel,
provided by the government, the prospective deportee is entitled to
retain counsel at his own expense. See INS v. Lopez-Mendoza, 468
U.S. 1032, 1038-39 (1984); Nelson v. INS, 232 F.3d 258, 262 (1st
Cir. 2000); 8 U.S.C. §§ 1229a(b)(4)(A), 1362. Zheng contends that
it was insufficient that the IJ informed him of his right to retain
counsel at the outset of his case, but rather the IJ was
constitutionally obligated to remind Zheng of the right to retain
counsel at each and every subsequent hearing held in his case. We
disagree.
Zheng cites no supportive authority for this contention.
Moreover, an IJ sufficiently informed Zheng of the right to retain
counsel at the very outset of his deportation case, following which
he had thirteen months to arrange for legal representation at the
February 2004 hearing on the merits. See, e.g., Nelson, 232 F.3d
at 262-63; Hidalgo-Disla v. INS, 52 F.3d 444, 447 (2d Cir. 1995)
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(rejecting as frivolous the contention that an IJ, who already had
advised alien of his right to retain counsel at two previously
continued hearings, was obligated to remind alien at the third
hearing when he arrived without counsel). The fact that Zheng
ultimately failed to retain counsel to appear at the February 2004
hearing did not obligate the IJ to issue yet another admonishment
or continuance, and the failure to do so did not constitute a
deprivation of due process. See id. at 447 (noting that contrary
rule could result in endless continuances).1
B. The Challenge to the IJ’s Findings of Fact
Zheng next contends that the explicit finding by the IJ
– that Zheng's description of his arrest was not creditworthy – is
not supported by the record. We review adverse credibility
findings under a “substantial evidence” standard, whereby “if we
cannot say a finding that the alien is credible is compelled – then
the decision must be affirmed.” Chen v. Gonzales, 418 F.3d 110,
113 (1st Cir. 2005); see 8 U.S.C. § 1252(b)(4)(B). We defer to the
IJ’s credibility determination where three conditions are met: “(1)
the discrepancies and omissions described by the [IJ] must actually
1
On appeal, Zheng also contends that the incompetence of his
court interpreter in translating Mandarin Chinese resulted in a
deprivation of due process. The alleged translation discrepancies
Zheng identifies – such as the rendering of “Christian” as
“Catholic” – were not sufficiently material to have affected the
IJ’s disposition of the asylum claim. See Harutyunyan v. Gonzales,
421 F.3d 64, 70 (1st Cir. 2005) ("harmless error" review); see also
infra note 2.
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be present in the record; (2) the discrepancies and omissions must
provide specific and cogent reasons to conclude that the alien
provided incredible testimony; and (3) a convincing explanation for
the discrepancies or omissions must not have been supplied by the
alien.” Hoxha v. Gonzales, 446 F.3d 210, 214 (1st Cir. 2006)
(citing In re A-S-, 21 I & N Dec. 1106, 1109 (BIA 1998)); see Syed
v. Ashcroft, 389 F.3d 248, 252 (1st Cir. 2004). In order to
support a finding that the alien’s testimony was not credible,
however, the discrepancies normally must pertain to facts central
to the merits of the alien’s claims, not merely to peripheral or
trivial matters. See Bojorques-Villanueva v. INS, 194 F.3d 14, 16
(1st Cir. 1999).2
The IJ predicated his credibility determination on the
following facts: (i) Zheng’s testimony as to the month or day of
his arrest was “quite vague”; (2) Zheng testified that his arrest
occurred at 10:00 p.m., yet the arrest notice issued by the public
security department states that Zheng was arrested at 10:30 a.m.;
(iii) Zheng incorrectly testified that he left China in April 2002,
whereas his actual departure date was July 25, 2002; (iv) Zheng
2
Zheng alternatively argues that the BIA improperly engaged in
de novo factfinding, rather than limiting itself to “clear error”
review of the IJ’s findings of fact, as required by 8 C.F.R. §
1003.1(d)(3). We disagree. Zheng objects, for instance, that the
BIA characterized him as a “Christian,” whereas the IJ had noted
that he was baptized a “Catholic.” As all Catholics are, by
definition, Christians, we are at a loss to see how this
constitutes either a material discrepancy, or a prejudicial
divergence from the IJ’s findings of fact.
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testified that he could not remember the details of his arrest
without consulting his papers, yet someone subjected to arrest and
torture likely would retain more vivid memories of such details;
(v) Zheng testified that he had been detained for four days,
whereas in an earlier interview with an asylum officer and in his
written asylum application, he stated that he had been detained for
fifteen days; (vi) when asked about the inconsistency, Zheng
testified – for the first time – that he was rearrested after he
subsequently failed to report to the police as required under the
terms of his post-release probation, whereas earlier he had told an
asylum officer that he had complied with the reporting requirement
until he left China; (vii) Zheng was unable to recall in any detail
the religious information contained in the pamphlets that he
assertedly distributed; (viii) Zheng testified that he had been
discharged from his job after his release from prison on April 30,
whereas the discharge notice was issued six days prior to his
release; (ix) the public security department issued Zheng a
resident identification card seventeen days after he departed
China, which the department would not likely have done were Zheng
a fugitive who had failed to check in for his weekly probation
reports; (x) Zheng’s proffered documentation – such as his job
termination notice – appeared to be amateurish forgeries; and (xi)
Zheng’s demeanor during his testimony reflected not only a lack of
confidence, but evasiveness as well.
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On appeal, Zheng challenges only two of the eleven
findings. First, he explains that he did not testify that he was
arrested at 10:00 p.m., but simply that he was distributing
leaflets at 10:00 p.m., and instead, he testified that he was “half
way through” his distribution when the police arrested him.
However, even accepting this proposed interpretation, arguendo, the
IJ would have had to infer that Zheng had planned to distribute
leaflets for at least twenty-four hours, i.e., around the clock
from 10:00 p.m. to 10:00 p.m. the following evening. More
plausibly, the testimony implies simply that Zheng was halfway
through his planned distribution at 10:00 p.m. when he was arrested
(viz., Zheng had begun distributing at 5 p.m. and had planned to do
so until 5 a.m. the next morning). Considering the implausibility
of a twenty-four hour distribution plan, the IJ reasonably could
have concluded that Zheng’s alternative interpretation was
farfetched. Accordingly, we conclude that Zheng’s explanation for
the discrepancy is unconvincing. See Hoxha, 446 F.3d at 214.
Zheng also notes that his testimony – that he was
discharged from his job after his April 30 release from prison –
was found to be incredible by the IJ, given that the discharge
notification was dated six days prior to his release. Zheng
correctly observes that he testified that the discharge occurred
after his arrest (viz., during his detention), not after his
release. Even if an IJ’s credibility determination is based in
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part on an incorrect analysis of hearing testimony, however, we may
nonetheless affirm where we conclude that no realistic possibility
exists that, absent the error, the IJ would have reached a
different conclusion. See Harutyunyan v. Gonzales, 421 F.3d 64, 70
(1st Cir. 2005); see also Liu v. United States Dep’t of Justice,
455 F.3d 106, 110 (1st Cir. 2006). Notwithstanding the IJ’s
erroneous depiction of the Zheng testimony concerning the date of
his job discharge, the IJ enumerated no less than ten other
independent grounds for his credibility determination – all
involving conspicuous facts central to Zheng’s religious
persecution claim – for which Zheng has offered neither adequate
nor convincing rebuttal. See Rodriquez Del Carmen v. Gonzales, 441
F.3d 41, 44 (1st Cir. 2004) (noting that vagueness and
contradiction in material details of an alien’s testimony support
an adverse credibility determination); see also Huang v. Gonzales,
438 F.3d 65, 66 (1st Cir. 2006) (observing “the sheer number of
other discrepancies” in alien’s testimony concerning alleged acts
of persecution). Consequently, we must therefore conclude (i) that
the IJ would have found Zheng's testimony unworthy of credence even
if the IJ had correctly analyzed Zheng’s testimony concerning the
job discharge, and (ii) that the IJ’s adverse credibility
determination is well supported by “substantial evidence.”
The petition for review is denied.
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