Weng v. Holder

United States Court of Appeals
For the First Circuit

No. 09-1273

JIN WENG,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

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

Before

Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.

William P. Joyce and Joyce & Associates P.C. were on brief for
the petitioner.
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Tony West, Assistant Attorney General, Civil
Division, were on brief for the respondent.

January 27, 2010
 LYNCH, Chief Judge. Jin Weng, a native and citizen of

China, petitions for review of a decision by the Board of

Immigration Appeals (BIA) affirming an immigration judge's (IJ)

decision denying her petition for asylum, withholding of removal,

and protection under the Convention Against Torture (CAT). The IJ

and BIA rejected Weng's claim that she has faced and will likely

face religious persecution in China as an adherent of Zun Wang, a

banned religion in China. The IJ found Weng was not credible

because her testimony was inconsistent with her earlier sworn

testimony, determining particularly that, in her earlier

statements, she did not mention religion but said she was fleeing

China and feared returning there because of poverty and other

nonreligious reasons.

The IJ did not explicitly separate his findings on the

asylum claims about past persecution and likely future persecution.

But we and the BIA have inferred from his reasoning that he found

that Weng was not credible about the past persecution she claimed

to have suffered in China or her alleged fear of future persecution

in China, and that she was not credible in her assertion that she

left China and fears returning because of religious persecution.

Although the IJ discussed some but not all of the documentary

evidence Weng introduced to support her claim of past religious

persecution, the remaining evidence would not compel a factfinder

to conclude that Weng had suffered past religious persecution or

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feared future persecution or that she was credible about her

reasons for leaving China. We deny the petition for review.

I.

Weng entered the United States from Mexico at Calexico,

California, on July 16, 2004. At the border, Department of

Homeland Security (DHS) officials found her in the trunk of a car

and detained her. An immigration officer then interviewed Weng

under oath through a Mandarin translator. Weng was informed in her

own language that she needed to tell the truth and, especially, to

tell the officer if she feared leaving the United States and

returning home. The officer assured Weng she could "speak

privately and confidentially to another officer about [her] fear or

concern."

Weng acknowledged that she understood her rights. She

told the officer that the reasons she had come to the United States

and feared returning to China were that she and her family were

poor and she needed work. She said she feared she might be harmed

in China, but she could not name anyone who would harm her. When

asked whether she had anything else to say, Weng replied no.

Later that day, an asylum officer conducted a credible-

fear interview with Weng, again through a Mandarin interpreter and

again under oath. At the outset, Weng signed a page that detailed

her rights. It read, in part,

Please feel comfortable telling me why you
fear harm. U.S. law has strict rules to

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 prevent the disclosure of what you tell me
today about the reason why you fear harm. The
information you tell me about the reasons for
your fear will not be disclosed to your
government, except in exceptional
circumstances. The statements you make today
may be used in deciding your claim and in any
future immigration proceedings.

This recitation was translated for her at the time.

After this urging to be truthful and this warning that

what she said would be used to decide her claim, Weng gave the

asylum officer several reasons she was entering the United States,

none of which involved religious persecution. She said that her

family did not want her and had sent her to live with others so her

parents could try to have a boy. She again said her family was

poor and that she would have a hard time finding a job in China

because of her "social status." Weng said she had heard that

"America is a country of human rights," and she believed the

American government treated its people better than the Chinese

government. She also noted that she opposed the Chinese

government's one-child policy.

Weng only identified one specific reason why she might be

harmed in China. She reported that her mother had obtained a high-

interest loan to pay for her to leave China and the lenders might

harm her mother if the loan were not repaid. Weng also indicated

that she had never been arrested.

On July 28, 2004, DHS issued Weng a Notice to Appear.

Weng conceded removability and admitted the notice's factual

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allegations. Weng filed an application for asylum, withholding of

removal, and protection under the CAT on December 15, 2004. In her

application, Weng claimed, for the first time, that she was fleeing

religious persecution in China for practicing Zun Wang, a banned

religion in China.

After several changes in venue due to Weng moving, Weng

appeared for her hearing before an immigration judge in Boston,

Massachusetts, on May 17, 2007. In her affidavit and oral

testimony, Weng claimed that she was raised by an aunt1 who

practiced Zun Wang and brought Weng to ceremonies. Weng testified

that she formally joined the religion at sixteen years old and

attended services regularly. She said that the government warned

Zun Wang followers to stop practicing their religion in November

2003. That same month, her parents allegedly received a notice

from village officials warning Weng to stop practicing Zun Wang.

Weng testified that she was arrested on November 14,

2003, after five uniformed police officers broke down the door to

a Zun Wang prayer meeting. Weng said that officers interrogated

her for thirty minutes, slapped her, and made her sign a statement

without letting her read it. She testified she was held for two

days over a weekend, during which she was given inadequate food and

1
Weng testified that, when she was four years old, her
parents sent Weng and her sister to live with relatives so her
parents could try to have a son. She said that the Chinese
government forced her mother to undergo a tubal ligation after
Weng's mother gave birth to a son.

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kept in a cold cell containing only a light blanket. Her family

bailed Weng out for 800 Yuan on Sunday, November 16.

Weng claimed that she continued practicing Zun Wang, even

though officers told her to stop or face jail. She testified that

her family helped her come to the United States after she escaped

a second arrest attempt in May 2004. Weng mentioned none of this

in her earlier interviews with DHS officers.

Weng submitted several documents supporting her religious

persecution claim on May 3, 2007. At the beginning of her hearing

on May 17, the IJ marked and admitted the documents as "Group

Exhibit 10." These exhibits included State Department country

reports from 2003 and 2006 that detailed how China has mistreated

practitioners of minority religions. Weng offered letters from her

sister and uncle, apparently prepared in 2007, that described

Weng's alleged 2003 citation and warning; her sister attached

pictures of Zun Wang ritual objects she was hiding in her own home.

Weng also provided, for the first time, a translated copy of a

village notice, dated November 13, 2003, accusing her of refusing

to stop practicing Zun Wang. It ordered her to appear for

investigation and reeducation or face "severe penalties." Finally,

she submitted in 2007 a translated copy of a bail receipt for 800

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Yuan, dated November 17, 2003,2 charging her with "[d]isturbing

social order & promoting superstition."

On cross examination Weng admitted that, contrary to her

current testimony, she had earlier told immigration officers that

(1) she had never been arrested and (2) she had left China because

she was poor; nor did she (3) mention religion or say she left

because of religion. Despite her prior statements that her family

was poor, Weng also conceded that her family runs a seafood

business and is in a "pretty good" financial position for their

area. Weng explained that she had not mentioned religious

persecution or her arrest when she was first interviewed because

she was afraid the Chinese government would learn about her

statements. She claimed she only felt safe to report the

persecution after speaking with a lawyer. She did not explain her

inconsistent statements about her family's financial situation.

After the evidence, the IJ suspended the hearing, saying

he wished to consider the evidence. That same day he delivered an

oral opinion finding Weng removable and denying her petition. He

began by correctly observing that Weng had to prove she had

suffered past persecution or had a well-founded fear of future

persecution because of, inter alia, religion. He added, also

correctly, that proof of past persecution created a presumption

2
Weng did not explain the apparent inconsistency between
the date on this receipt and her testimony that her family bailed
her out of jail on Sunday, November 16.

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that a petitioner has a well-founded fear of future persecution.

Then, the IJ stated that the country reports and Weng's testimony

"certainly [would have] established a well-founded fear of

persecution" based on her religious beliefs, "if indeed, she were

a credible witness." He did not explicitly mention the documents

such as the letters, the notice, or the bail receipt.

But the IJ determined Weng was not credible because her

prior, sworn interview statements were inconsistent in several

respects with her hearing testimony. He noted that the credible-

fear worksheet showed that she "was advised in great detail" about

her rights. Yet in two interviews with two different officers Weng

did not mention religious persecution; she said she had come to the

United States to escape poverty. When asked whether she had

anything to add after her first interview, Weng said no. In her

credible-fear interview, Weng also said that she came because of

America's human-rights record and that she feared harm only from

lenders who had given her mother a high-interest loan.

The IJ considered Weng's argument that she answered the

officers as she did because she feared she would be deported

because of her religion. The IJ responded, "I must say that I do

not, for one moment, believe that." As to her "fear," he noted

that Weng was with "experienced snakeheads," and snakeheads usually

advised people that probably their only chance for staying in the

United States was to claim asylum. He concluded that she was "an

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intelligent and articulate young woman who certainly should have

known that if she were escaping from religious persecution, to say

so when she was given an opportunity at a credible fear interview."

The IJ added, "It is inconceivable to me that a young woman of this

level of intelligence would not have stated that she was running

away from China because she was persecuted on account of her

religious beliefs, if such were the case." Not only did Weng never

mention her religious beliefs, but the only reason she gave for

fearing to return to China was the possibility that snakeheads

might retaliate if they were not paid.

The IJ found Weng's prior inconsistent statements went to

the heart of her application and denied her application for asylum,

withholding of removal, and CAT protection. This denial, together

with the IJ's recitation of the standard of review, necessarily

means the IJ inherently decided that Weng had not met her burden to

show past persecution or a likelihood of future persecution.

Although his opinion mentioned only the country reports Weng

submitted, presumably Weng's inconsistent statements led the IJ to

disbelieve her testimony of past persecution and find her other

evidence insufficient. The IJ also expressly held that she had not

met her burden to prove withholding of removal or eligibility for

protection under the CAT.

The BIA affirmed the IJ and denied Weng's application for

asylum, withholding of removal, and protection under the CAT on

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January 29, 2009. It ruled that the IJ relied on specific, cogent

reasons for finding her not credible; specifically, Weng's

statements in July 2004 to DHS that she was coming to the United

States for work and to escape poverty contradicted her asylum

application and testimony that she was fleeing religious

persecution. The BIA concluded these inconsistencies undermined

Weng's credibility and went to the heart of her claim.

The BIA also noted that the IJ had considered and

rejected Weng's argument that she had not mentioned religious

persecution earlier because she feared the Chinese government would

learn of her asylum application opposing one of its policies. The

BIA observed that, before her credible-fear interview, Weng was

advised in Mandarin that the United States could not report her

statements. It also pointed out that Weng had felt comfortable

noting her opposition to the Chinese government's family-planning

policies.

The BIA held that Weng had not "met her burden of proof

for asylum under section 208 of the Immigration and Nationality

Act," a conclusion that necessarily incorporated findings that Weng

had failed to prove past persecution or a likelihood of future

persecution. It also ruled that she had not met her burden to show

eligibility for withholding of removal or protection under the CAT.

Weng petitioned this court for review.

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 II.

When "the BIA adopted and affirmed the IJ's ruling" but

also "discussed some of the bases for the IJ's opinion, we review

both the IJ's and BIA's opinions." Cuko v. Mukasey, 522 F.3d 32,

37 (1st Cir. 2008)(internal quotation marks omitted). We also

review the IJ's credibility determination when the BIA" adopted it.

Id.

Petitioners for asylum have the burden to prove they are

"refugee[s]," 8 U.S.C. § 1158(b)(1)(B)(i), who are people "unable

or unwilling" to return to their home countries "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," id. § 1101(a)(42)(A).3 Weng's brief

attacks the ground the BIA and IJ gave for rejecting her petition:

that her testimony lacked credibility.

We review adverse credibility determinations for

substantial evidence. Mam v. Holder, 566 F.3d 280, 283 (1st Cir.

2009). We will not disturb an adverse-credibility finding "unless

[a] petitioner[] can show the record evidence, considered as a

3
Although the IJ and BIA did not rely on this point, we
note that applicants for asylum must show, not just that they
suffered past persecution on a protected ground, but that they are
unable or unwilling to return to their home country for that
reason. See 8 C.F.R. § 208.13(b)(1) (defining a past-persecution
"refugee" as someone who has "suffered persecution in the past
. . . on account of race, religion, nationality, membership in a
particular social group, or political opinion, and is unable or
unwilling to return to . . . that country owing to such
persecution") (emphasis added).

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whole, 'would compel a reasonable factfinder to make a contrary

determination.'" Id. (quoting Cuko, 522 F.3d at 37).

There is no real dispute that the discrepancies the BIA

or IJ relied on are "actually present in the administrative record"

and "generate specific and cogent reasons" to infer the

petitioner's testimony was not credible. Ru Xiu Chen v. Holder,

579 F.3d 73, 77 (1st Cir. 2009). There is also no serious dispute

that these discrepancies went to the heart of Weng's claim and were

"not merely peripheral or trivial matters," a legal requirement

before the REAL ID Act's effective date. See Bebri v. Mukasey, 545

F.3d 47, 50 & n.1 (1st Cir. 2008).

This case turns on the IJ's finding--and the BIA's

affirmance--that the petitioner's explanation was not credible and

so she failed to give "a persuasive explanation for these

discrepancies." Ru Xiu Chen, 579 F.3d at 77 (quoting Mam, 566 F.3d

at 283). Our review, as always, is whether substantial evidence

supports the IJ's determination that Weng had not met her burden of

proof. See id.

Weng argues that the IJ's decision to reject her

explanation was based on conjecture and speculation and not

supported by substantial evidence. She admits that she gave

inconsistent statements during her credible-fear and earlier

interviews. But she says that her explanation--that she feared she

would be deported and was not aware DHS would keep her statements

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confidential--was convincing and consistent with the record;

consequently, the IJ should not have rejected it.

We still apply the substantial-evidence test. Even if

the explanation for an inconsistency is on its face reasonable and

consistent, that does not mean the explanation is true or that the

IJ must accept it. It also does not mean that an IJ cannot

evaluate a superficially reasonable explanation by weighing its

plausibility or assessing an applicant's credibility. The IJ is

responsible for weighing these factors and reaching a credibility

determination, which we then must affirm as long as "the IJ has

given reasoned consideration to the evidence and has provided a

cogent explanation for his finding." Muñoz-Monsalve v. Mukasey,

551 F.3d 1, 5 (1st Cir. 2008).

Weng's petition essentially asks this court to reevaluate

anew the IJ's rejection of her explanation, which we cannot do.

The IJ gave a cogent explanation for rejecting Weng's explanation

that was supported by substantial evidence in the record,4 not mere

speculation. Weng's testimony that she was unaware that her

answers would be held confidential is directly contradicted by her

4
Weng argues that the BIA engaged in impermissible
factfinding by noting that Weng, despite claiming she was afraid to
criticize the Chinese government, said she opposed its family
planning policies during her credible-fear interview. The BIA was
not finding new facts; it was pointing to further support for the
IJ's finding that Weng was not credible because her statements were
inconsistent. See 8 C.F.R. § 1003.1(d)(3)(i) (permitting the BIA
to review an IJ's credibility finding for clear error). In any
event, the BIA did not rely only on this fact to affirm the IJ.

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credible-fear worksheet and the information both immigration

officers provided. Weng was given Chinese translations of all

statements and documents and affirmed that she understood her

rights.

Weng's argument that the IJ and BIA ignored documentary

evidence she provided fails for similar reasons. We can infer that

the IJ reviewed the documents Weng submitted but found they did not

independently establish her case5 or overcome his doubts about her

credibility. The IJ did not make a credibility finding until after

he marked all her documents, heard her testimony, and retired to

evaluate the evidence. He discussed two of those documents--the

country reports--in his decision.

We can also infer that the IJ rejected these documents,

which did not add new facts but merely supported Weng's testimony,

for the same reasons he chose not to credit her testimony and the

5
We cannot find, given our standard of review, that the
documents themselves would compel a finding of persecution,
especially in the absence of credible testimony on Weng's part.
That burden is "heavy," and petitioners must show "more than
harassment or spasmodic mistreatment by a totalitarian regime."
Guzman v. INS, 327 F.3d 11, 15 (1st Cir. 2003); see, e.g., Bocova
v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) (affirming the BIA's
conclusion that two beatings "over an eight-year span, occurring
more than twenty-five months apart" were not "persecution");
Guzman, 327 F.3d at 15-16 (affirming the BIA's holding that the
petitioner "f[ell] well short of establishing 'past persecution'"
when he suffered "superficial physical harm" after being kidnapped,
held for three hours, and beaten). Weng's documents purporting to
show she was warned not to practice Zun Wang and that she was
fined, or even arrested, for doing so are not such persuasive
evidence of persecution that a reasonable factfinder would be
compelled to reach a conclusion opposite to the IJ's.

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country reports. Those reasons are sufficiently clear for us to

review and, as we explained, had a basis in the record. See Pan v.

Gonzales, 489 F.3d 80, 87 (1st Cir. 2007) ("Although an IJ may not

simply ignore substantial testimonial and documentary proof, she

need not discuss ad nauseam every piece of evidence. So long as

the IJ has given reasoned consideration to the evidence as a whole,

made supportable findings, and adequately explained her reasoning,

no more is exigible.") (internal citation omitted).

Substantial evidence supports the IJ's finding that Weng

did not meet her burden on any of the forms of relief she sought.

The underlying issue before the IJ was whether she had shown past

persecution or likely future persecution for her religious beliefs.

As the BIA and IJ noted, despite being told to tell DHS officers

why she feared returning to China, Weng repeatedly failed to

mention religious persecution and offered a host of alternative

explanations. The IJ fairly weighed this inconsistency against

Weng's explanation for why she lied on several points and found her

explanation unpersuasive. We cannot say the record compels a

contrary conclusion.

Weng makes a final, incorrect argument. She accuses the

BIA of a procedural error: conflating the REAL ID Act's requirement

that discrepant testimony go to the heart of the claim with the

requirement that the IJ's findings not rest on conjecture and

speculation. The BIA did no such thing. It rejected Weng's

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argument that the IJ relied on conjecture and speculation by

pointing to facts in the record supporting the IJ's determination.

It also noted the inconsistencies the IJ relied on went to the

heart of Weng's claim.

III.

The petition for review is denied.

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