Chen v. Holder, Jr.

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 13-1294

HONG CHEN,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

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

Before

Howard, Lipez, and Thompson,
Circuit Judges.

Gerald Karikari on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Jennifer L. Lightbody and Stefanie A. Svoren-Jay, Office of
Immigration Litigation, on brief for respondent.

March 14, 2014
 LIPEZ, Circuit Judge. Hong Chen, a native and citizen of

the People's Republic of China, entered the United States without

being admitted or paroled. She was placed into removal proceedings

and filed applications for asylum, withholding of removal, and

relief under the Convention Against Torture ("CAT"). An

immigration judge ("IJ") denied Chen's applications for relief; the

Board of Immigration Appeals ("BIA") subsequently dismissed her

appeal. Chen now petitions for review of the BIA's order. Under

the deferential standard of review we accord to the agency's

factfinding, we deny the petition.

I.

We briefly recount the facts as alleged by petitioner.1

Hong Chen began to practice Christianity in 2008 while living in a

small village in China. In the summer of 2008, she regularly

attended underground church meetings at her fellow villager's home.

At least two of the meetings were broken up by the police. When

the police broke up a meeting on May 4, 2008, Chen was arrested and

detained for three days. Shortly thereafter, Chen left China for

the United States.

After a year-long journey, Chen arrived in Hidalgo, Texas

in September 2009. One day after entering the country, she was

detained and questioned by immigration officials. Chen told the

1
Because this appeal concerns the adequacy of an adverse
credibility determination as to petitioner, we cannot simply rely
on the facts as found by the IJ and the BIA.

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border patrol agent -- who was questioning her in Mandarin -- that

she had come to the United States to live and work in New York and

that she feared returning to China because she did not have

permission from the government to leave. She did not mention any

religious persecution. On November 4, 2009, an asylum officer

conducted a credible fear interview with Chen. She then mentioned,

for the first time, practicing Christianity in China and being

subject to police investigation as a result.

On November 10, 2009, removal proceedings were initiated

against Chen pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I).2 In

responding to the charge that she did not possess a valid entry

document, Chen admitted the factual allegations but expressed her

intent to pursue asylum, withholding of removal, and CAT

protection. At a hearing before an IJ, Chen testified about her

involvement with the underground church in China and about her

arrest. While in custody in China, the police demanded that she

reveal the names of other church members. When she refused to do

so, they beat her about the head with binders, causing bruising and

swelling. She was released after three days when her family paid

2
That provision deems ineligible for admission to the United
States "any immigrant at the time of application for admission--
who is not in possession of a valid unexpired immigrant visa,
reentry permit, border crossing identification card, or other valid
entry document required by this chapter, and a valid unexpired
passport, or other suitable travel document, or document of
identity and nationality if such document is required under the
regulations issued by the Attorney General."
8 U.S.C. § 1182(a)(7)(A)(i)(I).

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5,000 yuan. She continued to attend the church after this

incident. Although there was another incident when the police

broke up a meeting of the underground church, she escaped without

being arrested.

For impeachment purposes, the government introduced the

Record of Sworn Statement from the initial interview of Chen by

immigration officials in Texas. When confronted with the fact that

she did not mention her fear of religious persecution, Chen

responded that she was very afraid at the time of the interview and

did not want to say anything.

At the hearing's end, the IJ issued an oral decision

finding Chen removable and denying her application for asylum,

withholding of removal, and CAT protection. The IJ denied her

claims on the ground that Chen did not meet the burden of

demonstrating past persecution or a well-founded fear of

persecution on account of her religion. As the basis for that

determination, the IJ found that Chen's testimony was not credible

because it contradicted the statements she made to immigration

officials upon entry into the United States.

Chen appealed the IJ's decision to the BIA. The BIA

dismissed Chen's appeal. First, the BIA found that the IJ's

credibility determination was not clearly erroneous because it was

based on the discrepancies between Chen's testimony and her past

statements as well as the inadequacy of her proffered excuse for

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the discrepancies. Second, the BIA found that even if Chen was

credible, there was insufficient evidence of past persecution or

fear of future persecution. Specifically, the BIA noted that the

three-day detention and associated physical abuse did not rise to

the level of persecution. Finally, the BIA found that there was

insufficient evidence of a clear probability of torture upon Chen's

return to China. This timely appeal followed.

II.

We review on appeal "the BIA's decision as well as any

portions of the IJ's opinion adopted by the BIA." Peña-Beltre v.

Holder, 622 F.3d 57, 61 (1st Cir. 2010). We examine the BIA's

legal conclusions de novo and its factual findings under the

substantial evidence standard, Soeung v. Holder, 677 F.3d 484, 487

(1st Cir. 2012), accepting the agency's factfinding unless the

evidence "would compel a reasonable factfinder to reach a contrary

conclusion," Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009).

A. Chen's Claims of Persecution

Chen contends that the agency erred in concluding that

she was ineligible for asylum. A noncitizen seeking asylum "must

establish his or her status as a refugee." Soeung, 677 F.3d at

487. A refugee is defined as a noncitizen who is unwilling or

unable to return to her country of origin or seek that country's

protection "because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership

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in a particular social group, or political opinion." 8 U.S.C. §

1101(a)(42)(A). "A showing of past persecution gives rise to a

rebuttable presumption of future persecution." Vanchurina v.

Holder, 619 F.3d 95, 99 (1st Cir. 2010). Absent evidence of past

persecution, a petitioner must provide "'specific proof' that his

[or her] 'fear [of future persecution] is both subjectively genuine

and objectively reasonable.'" Decky v. Holder, 587 F.3d 104, 110

(1st Cir. 2009) (quoting Castillo-Díaz v. Holder, 562 F.3d 23, 26

(1st Cir. 2009)).

1. Credibility Determination

Chen bases her asylum claim on the alleged police

activities directed towards her and her underground church in

China. The IJ heard her testimony recounting these events but

chose to discredit it. The BIA found that the IJ did not clearly

err in making that credibility determination.

In reviewing such a credibility determination, we assess

whether it is "'supported by reasonable, substantial, and probative

evidence on the record considered as a whole.'" Bocova v.

Gonzales, 412 F.3d 257, 262 (1st Cir. 2005) (quoting INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992)). We afford deference to

the IJ and BIA and will reverse a credibility determination only

when "any reasonable adjudicator would be compelled to conclude to

the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Simo v.

Gonzales, 445 F.3d 7, 11 (1st Cir. 2006); Chen v. Gonzales, 418

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F.3d 110, 113 (1st Cir. 2005).3 However, the IJ and the BIA "may

not reject a petitioner's testimony as incredible without a

specific, cogent, and supportable explanation." Simo, 445 F.3d at

11.

Here, the BIA found that the inconsistencies between

Chen's testimony at her removal hearing and her initial interview

by immigration officials provided the IJ with a specific and cogent

reason for finding her not credible. The BIA further found that

the IJ was entitled to find unconvincing Chen's brief explanation

attributing her lack of full disclosure to fear.

When, as here, a petitioner proffers an explanation as to

inconsistencies between her testimony before an IJ and earlier

3
As we explained in Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st
Cir. 2009):

Because h[er] application postdates the enactment of the
REAL ID Act, Pub. L. 109-13, 119 Stat. 302 (2005), the
credibility [determination] at issue here is subject to
a provision of that Act, codified at 8 U.S.C.
§ 1158(b)(1)(B)(iii), rather than to the preexisting
"heart of the matter" rule. The earlier rule required
that an adverse credibility finding be based on
inconsistencies that pertain to facts central to the
merits of the alien's claims. The new statute disavows
that test; it provides that a factfinder may base a
credibility determination on inconsistencies,
inaccuracies, or falsehoods "without regard to whether
[any such inconsistency, inaccuracy, or falsehood] goes
to the heart of the applicant's claim." 8 U.S.C. § 1158
(b)(1)(B)(iii). We therefore proceed to evaluate the IJ's
adverse credibility determination under that standard and
in light of the totality of the circumstances.

Id. (citation omitted) (internal quotation marks omitted).

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statements, an adverse credibility determination "must be evaluated

in light of th[at] explanation . . . and of the rest of the

evidence presented." Id. at 12. Chen tried to explain her failure

to mention her religious persecution upon entering the country by

merely stating that she was afraid. However, she also acknowledged

that she believed she was safe from such persecution in the United

States.

Chen further argues that any inconsistencies between her

initial interview with border patrol agents and her testimony at

the formal hearing cannot form the basis for an adverse credibility

determination, primarily because the former were not reliable. She

claims that the Record of Sworn Statement, which memorialized her

initial interview with the border patrol agent, does not enjoy a

"presumption of regularity," while the report of her asylum

interview, which is when she first mentioned her practice of

Christianity, does. We have previously held that the report of an

asylum interview enjoys a "presumption of regularity" and,

therefore, can be relied upon as an accurate account of what was

said. See Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007). To the

extent that petitioner seeks to have us exclude the Record of Sworn

Statement from consideration on the ground that it is somehow less

reliable than the report of an asylum interview, we decline to do

so. Chen neglected to raise this issue on appeal to the BIA. She

cannot raise this issue here for the first time. Silva v.

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Gonzales, 463 F.3d 68, 72 (1st Cir. 2006) ("Under the exhaustion of

remedies doctrine, theories insufficiently developed before the BIA

may not be raised before this court.").

Under the circumstances, we agree with the BIA that the

IJ did not clearly err in finding Chen's brief explanation

inadequate and discrediting her testimony based on the

inconsistencies.4

2. Evidence of Persecution

The BIA found that even if Chen were deemed credible, the

events she testified to did not rise to the level of persecution.

We have held that a noncitizen must have experienced something more

than "ordinary harassment, mistreatment, or suffering" to

demonstrate persecution. Lopez de Hincapie v. Gonzales, 494 F.3d

213, 217 (1st Cir. 2007). "The severity, duration, and frequency

of physical abuse are factors relevant to this determination, as is

whether harm is systematic rather than reflective of a series of

isolated incidents." Barsoum v. Holder, 617 F.3d 73, 79 (1st Cir.

2010) (citation omitted) (internal quotation marks omitted).

4
Chen also argues that the statements at issue were not
actually inconsistent, but rather incomplete. It is technically
true that her failure to disclose her past persecution in response
to questions about her reason for coming to the United States and
her fear of returning to China may be more fairly categorized as a
material omission. However, the IJ was nonetheless permitted to
make reasonable inferences from that omission in determining her
credibility.

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 Here, Chen testified to the slapping of her head and face

with binders at two interrogation sessions that took place during

Chen's three-day detention. Her testimony indicated that the

injuries suffered from this incident were minor and did not require

professional medical treatment.5 We have previously held that

although "it would be impermissible to make the presence or absence

of injury requiring medical attention into a sort of 'acid test'

for persecution," the BIA is entitled to rely on the severity of a

petitioner's injuries in deciding whether she was subject to past

persecution. Decky, 587 F.3d at 111 (quoting Topalli v. Gonzales,

417 F.3d 128, 132-33 (1st Cir. 2005)). Here, as in Decky, though

the lack of severe injury is a relevant consideration, the

dispositive factor is the absence of any evidence of systematic

mistreatment of petitioner. See Decky, 587 F.3d at 111. Under the

circumstances, the BIA did not err in concluding that petitioner

did not suffer past persecution.

Without evidence of past persecution, Chen is not

entitled to a presumption that she will face future persecution.

Anacassus v. Holder, 602 F.3d 14, 21 (1st Cir. 2010). She may

nonetheless "prevail on an asylum claim by proving, simpliciter, a

well-founded fear of future persecution independent of any

presumption [, which] . . . requires the alien to demonstrate that

5
She did recount one other incident when the police raided a
church gathering, but she managed to avoid arrest and was not
subsequently pursued by police.

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h[er] fear of future persecution is both subjectively and

objectively reasonable." Orelien v. Gonzales, 467 F.3d 67, 71 (1st

Cir. 2006). We have said that a petitioner can meet this burden

"through an offer of 'specific proof.'" Castillo-Díaz v. Holder,

562 F.3d 23, 26 (1st Cir. 2009) (quoting Romilus v. Ashcroft, 385

F.3d 1, 6 (1st Cir. 2004)). When the possibility of relocation

within a petitioner's home country is at issue, such proof must

demonstrate, among other things, that a petitioner "could not avoid

future persecution by moving to another part of [her home

country]."6 Mejilla-Romero v. Holder, 600 F.3d 63, 75 (1st Cir.

2010), vacated on reh'g on other grounds, 614 F.3d 572 (2010).

As to likely future persecution, Chen put forth evidence

both of general trends of persecution of Christians in China and of

the situation in her own village. Chen also put forth evidence, in

the form of a letter from her mother in China, that the police were

specifically searching for her and threatened to arrest her upon

her return.

6
When a petitioner has successfully established past
persecution, the government has the burden to show either "a
fundamental change in circumstances in the country or the
opportunity to relocate safely within it." Precetaj v. Holder, 649
F.3d 72, 75 (1st Cir. 2011) (citing 8 C.F.R. § 1208.13(b)(1)(i)).
Here, without the benefit of the presumption created by evidence of
past persecution, the petitioner has the burden on the issue of
whether she would be able to safely relocate within her home
country.

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 In response, the BIA relied upon the 2010 Department of

State International Religious Freedom Report in concluding that

there are areas of China where Chen could practice her religion

openly without fear of persecution. In affirming previous BIA

decisions finding a lack of sufficient evidence as to persecution

of Christians in China, we have approved reliance on similar

reports from the Department of State. See, e.g., Dong v. Holder,

696 F.3d 121, 127 (1st Cir. 2012) (quoting the 2008 Department of

State Human Rights Report, which stated that "in some regions

unregistered groups or house churches with hundreds of members

[met] openly, with full knowledge of [the] authorities" (second

alteration in original)); Zhang v. Holder, 330 Fed. App'x 201, 203

(1st Cir. 2009) (relying on 2005 Department of State Report on

China for the proposition that the government's religious tolerance

"varie[d] greatly," but that Protestantism was one of the five

officially recognized religions and was rapidly growing).

The record as just described does not compel the

conclusion that Chen could not practice her Christianity elsewhere

in China; in fact, the BIA indicated that she could likely do just

that. As we have repeatedly held, "[m]erely identifying

alternative findings that could be supported by substantial

evidence is insufficient to supplant the [IJ's] findings."

Guaman-Loja v. Holder, 707 F.3d 119, 123 (1st Cir. 2013)

(alteration in original)(quoting Albathani v. INS, 318 F.3d 365,

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372 (1st Cir. 2003). Accordingly, we discern no error in the BIA's

conclusion as to future persecution.

B. Chen's Remaining Claims

Because Chen has failed to demonstrate that she is

eligible for asylum, her claims for withholding of removal and

relief under CAT also fail. See Singh v. Mukasey, 543 F.3d 1, 7

(1st Cir. 2008) (observing that claims for withholding and CAT

protection "place a higher burden of proof on the petitioner than

a counterpart claim for asylum" and stating that petitioner's

failure to establish eligibility for asylum similarly doomed those

claims); Barsoum, 617 F.3d at 80-81 (same).

The petition is denied. So ordered.

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