NOT RECOMMENDED FOR PUBLICATION
File Name: 08a0771n.06
Filed: December 18, 2008
No. 08-3131
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PE THET WIN, )
)
Plaintiff - Appellee, ) ON APPEAL FROM THE BOARD OF
) IMMIGRATION APPEALS
v. )
)
MICHAEL B. MUKASEY, Attorney General, )
)
Defendant - Appellant. )
)
BEFORE: COLE and COOK, Circuit Judges; EDMUNDS,* District Judge
EDMUNDS, District Judge. Petitioner, Pe Thet Win, is a citizen of Burma who seeks
review of a decision by the Board of Immigration Appeals (BIA) upholding the Immigration Judge’s
(IJ) denial of his application for asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (CAT). The IJ denied Win’s application for asylum, finding
that he failed to show that he had applied for asylum within one year of his entry into the United
States. Alternatively, the IJ denied Win’s claim for asylum because Win was found not to be
*
The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
credible. The IJ also denied Win’s claims for withholding of removal under the Immigration and
Naturalization Act (INA) and protection under the CAT based on an adverse credibility finding.
Because this Court lacks jurisdiction to review Win’s asylum application and substantial evidence
supports the IJ’s adverse credibility determination, we DENY the petition for review.
I.
Win is a 36-year old, single, male native and citizen of Burma. He claims that he suffered
past persecution in Burma based on his political opinions, entered the United States through Seattle,
Washington on May 11, 2001, and will suffer future persecution or torture if forced to return to
Burma.
A. 2002 Asylum Application
Win’s application for asylum, withholding of removal and protection under the CAT shows
two date-received stamps: one for April 22, 2002 and the other for May 10, 2002. In it, Win claims
that he had been arrested, persecuted, and abused in Burma on three separate occasions after taking
part in political demonstrations and distributing pro-democracy literature.
The first arrest was on August 11, 1988. Win contends that he was detained for five days by
the Military Intelligence (MI) people. During that detention, he was harshly interrogated under
inhumane treatment. He was taken out of detention after his father bribed an MI officer. After being
released, Win had to report to the MI office bi-weekly to confirm that he had not traveled to other
parts of Burma.
Win was arrested again the following year, on August 8, 1989, when the MI rounded up and
arrested those demonstrating on the first 8-8-88 anniversary. During his one-week detention, Win
2
claims that he was subjected to harsh interrogation and inhumane treatment. Once again, he was
released after his father bribed an MI officer. After this, Win asserts that he was free to be involved
in politics again. He was openly involved with the National League for Democracy (NLD), the
political party he believed and still believes is the most qualified to restore democracy and human
rights to Burma. Burma’s military government allowed political parties to compete in the upcoming
national elections to be held on May 27, 1990.
Although he remained politically active, and despite the arrest of NLD leaders, Win was not
arrested again until almost seven years later on May 26, 1996. Win claims that his father was not
so fortunate. Win’s father joined a political demonstration, was subsequently arrested by the MI
people, and tortured to death for endangering the state on April 30, 1995. In 1996, after his father’s
death, Win became more heavily involved in political activities, distributing leaflets and pamphlets
to celebrate the sixth anniversary of the pro-democracy NLD national election victory.
On May 26, 1996, MI people caught Win distributing political materials, and he was arrested
for destabilizing the country. Win was sent to Toungoo Prison. During his hard labor sentence at
Bassein-Mandalay Construction Camp, Win claims that he was deprived of food, sleep, and hygiene
supplies.
Win was released in 1997, after being in prison for one year. Before being released, Win
claims that he was forced to sign a promissory note, agreeing not to be involved in politics anymore.
Despite his forced signature, Win continued to be involved with the pro-democracy and
human rights movements in Burma. Because he was not highly educated, his activities involved
distributing pamphlets and leaflets about convening a pro-democracy parliament. Many NLD
3
members were arrested in August 1998. Because Win feared arrest and jail, he fled Burma for a
refugee camp in Thailand in September 1998.
Win remained in Thailand until August 2000; a period of almost two years. While in the
Thailand refugee camp, Win contacted a broker who arranged to have him taken by ship to Seoul,
South Korea. From September 2000 to March 2001, Win stayed at the Burmese Community Center
for Burmese refugees located in Seoul, South Korea. He left Korea for the United States when
someone there arranged for him to board a ship for America. Win claims that he arrived in Seattle,
Washington on May 11, 2001, and continued on to Grand Rapids, Michigan. At the time he filed
his asylum application, Win resided in Wyoming, Michigan.
Win fears that, if returned to Burma, he will be detained, tortured to death, cremated, and
dumped without anyone in his family knowing why he has disappeared. Win bases his fears of
future persecution on the facts that (1) his father was tortured to death for his political involvement
in 1995; (2) on three separate occasions, Win himself had been accused, charged, arrested,
interrogated, and severely mistreated in Burma; and (3) since his arrests, he has been on the MI’s
black list and closely watched.
Win believes that the MI acquired all his personal information when he was arrested in 1988,
1989, and 1996, and placed him on a black list and have earmarked him for arrest when and if
something happens to destabilize the iron rule of the military.
B. Removal Proceedings and IJ Decision
On June 13, 2002, the former Immigration and Naturalization Service (now the Department
of Homeland Security), initiated removal proceedings against Win by issuing a Notice to Appear and
4
charging Win under Section 212(a)(6)(A)(i) of the INA, as amended, 8 U.S.C. § 1182(a)(6)(A)(i),
as an alien present in the United States without being admitted or paroled, or an alien who has
arrived in the United States at a time or place other than designated by the Attorney General.
Removal proceedings were held on several dates in 2002, 2005, and 2006. At the 2002 and
2005 proceedings, Win, who was represented by counsel, admitted the allegations of facts alleged
against him, except for his date of entry into the United States, and conceded the charge of
removability. The IJ informed Win that it would be his burden to establish the date of his entry into
the United States, that the one-year bar was at issue, and that it was Win’s burden to show
exceptional circumstances so as to establish an exception to that one-year bar. Despite Win’s
counsel’s request and the IJ’s grant of permission to supplement Win’s application for asylum, no
supplement or amended application was filed.1
The IJ issued an oral decision and written order on March 28, 2006, denying Win’s
application for asylum, withholding of removal, and protection under the CAT, and ordered Win
removed to Burma.
1. Asylum Claim
Win’s asylum claim was denied on three alternative grounds. First, the IJ found that Win had
not shown, by clear and convincing evidence, that he had first arrived in the United States on May
11, 2001 and thus had not shown that his application for asylum had been filed within one year of
1
Two minor changes were made to the Win’s application. First, the date political parties
were allowed to compete in the upcoming Burma national election was changed from 1989 to 1988.
Second, a correction was made to reflect Win was severely mistreated during his three arrests; not
two.
5
the date he first arrived in the United States. Win had not argued or presented evidence that either
changed or extraordinary circumstances caused him to miss the one-year deadline. Accordingly, the
IJ concluded that Win was statutorily barred from obtaining the asylum relief he sought. 8 U.S.C.
§ 1158(a)(2)(B).
Second, the IJ concluded that, even if Win’s asylum claim were not statutorily barred, it
would be denied on the merits. Observing that an applicant for asylum must demonstrate that he is
a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A), the IJ found that Win’s claims of past
persecution and fear of future persecution lacked credibility. Because he was found not to be a
credible witness, the IJ concluded that Win had not shown that he was a “refugee” as defined by §
1101(a)(42)(A).
The IJ stated specific reasons in support of her adverse credibility finding, relying on (1)
inconsistencies between Win’s testimony and written application that were created by omissions in
one or the other, (2) inconsistencies between Win’s testimony and affirmative statements in his
written application, (3) the lack of reasonable or plausible explanations for those inconsistencies and
omissions, (4) the lack of corroborating evidence that was reasonably available to Win, and (5)
corroborating evidence presented by Win that failed to support his claims of past persecution.
Lastly, the IJ concluded that, even if Win’s asylum claim were not statutorily barred and he
was found to be credible, his asylum claim would be denied on the merits for another reason. The
relief of asylum is discretionary, and the IJ concluded that Win was not entitled to a favorable
exercise of discretion because, among other reasons, Win had spent approximately two years in a
6
refugee camp in Thailand and six months in South Korea, both safe havens, but never requested
asylum.
After providing reasons for denying Win’s asylum claim, the IJ addressed Win’s claims for
withholding of removal under the INA and protection under the CAT.
2. Withholding of Removal Under INA
The IJ first observed that, unlike asylum, the grant of withholding of removal under Section
241(b)(3) of the INA is not discretionary. To obtain this relief, however, Win must show that it is
“more likely than not” that he would be persecuted on one or more of the statutorily protected
grounds. The IJ concluded that Win failed to meet that burden and denied his request for a grant of
withholding of removal under the INA because Win was found not to be a credible witness.
The IJ also concluded that, even if Win was found to be credible, his claim for withholding
of removal would be denied because Win had not shown “a clear probability” that he would be
persecuted if he was removed to Burma. The IJ based this conclusion on the fact that (1) Win
remained unharmed in Burma from August 1989 until May 26, 1996, a period of almost seven years,
even though he admitted that he was politically active, and (2) Win remained unharmed in Burma
from May 1997 until September 1998, even though Win continued his political activity in pro-
democracy efforts in Burma, albeit more secretly than in the past.
3. Protection Under the CAT
Win’s request for withholding of removal under the CAT was also denied based on the IJ’s
adverse credibility finding. The IJ also concluded that, even if found to be credible, Win’s claim for
protection under the CAT would be denied because Win had not shown that it was “more likely than
7
not” that he would suffer the torture he fears if removed to Burma. Citing Castellano-Chacon v.
INS, 341 F.3d 533 (6th Cir. 2003), the IJ concluded that generalized descriptions of human rights
violations in Country Condition Reports prepared by the State Department were insufficient to show
that it is more likely than not that Win would be tortured for his political opinions if returned to
Burma.
C. Appeal and BIA Decision
Win filed a timely appeal with the BIA. In a January 7, 2008 decision, the BIA found that
the factual findings of the IJ were not clearly erroneous. It adopted and affirmed the IJ’s decision
denying Win’s application for asylum, withholding of removal under the INA, and for protection
under the CAT, and dismissed Win’s appeal. Specifically, the BIA concluded that the IJ had
correctly found that Win had not demonstrated by clear and convincing evidence that his asylum
application was timely. The BIA next concluded that the IJ had adequately cited a basis for the
adverse credibility finding, noting the major discrepancies between Win’s testimony, his written
application, and his corroborating evidence. As for Win’s requests for withholding of removal under
the INA and for protection under the CAT, the BIA affirmed the IJ’s analysis and conclusion that
Win had not demonstrated past persecution or a clear probability that he would be persecuted or that
it was more likely than not that he would be tortured if removed to Burma. Finally, the BIA rejected
Win’s argument on appeal that he should have been in “Asylum Only” proceedings because Win
conceded removability and the charge or nature of proceedings was not an issue in his removal
hearings before the IJ. The BIA also concluded that Win failed to show that he was prejudiced under
these circumstances.
8
II.
Win’s claims for asylum and withholding of removal are based on his alleged past
persecution and fear of future persecution or torture in Burma for holding pro-democracy political
opinions. His petition argues that (1) the BIA erred when it upheld the IJ’s finding that Win was
statutorily ineligible for asylum because he failed to timely file his application; (2) the BIA erred
when it upheld the IJ’s finding that he lacked credibility and thus denied his application for a grant
of withholding of removal under the INA and for relief under the CAT; (3) as to Win’s withholding
of removal claim under the INA, the BIA erred when it upheld the IJ’s alternative conclusion that
Win had not met his burden of showing either past persecution or a clear probability that he would
be persecuted if removed to Burma; (4) as to Win’s request for relief under the CAT, the BIA erred
when it upheld the IJ’s alternative conclusion that Win had not met his burden of showing that it was
more likely than not that he would be tortured if he was removed to Burma; and (5) the BIA erred
when it determined that Win’s argument -- that the proceedings below should have been “Asylum
Only” proceedings because he entered the United States as a stowaway -- was waived when he
conceded removability, did not challenge that charge or the nature of the proceedings below, and
failed to show prejudice.
We begin with the government’s argument that this Court lacks jurisdiction to review Win’s
asylum claim.
A. Jurisdiction to Review the Asylum Claim
The BIA upheld the IJ’s finding that Win had not shown that his application for asylum was
timely. The IJ found that Win had failed to provide clear and convincing evidence that his asylum
9
application was filed within one year of his arrival in the United States as required by 8 U.S.C. §
1158(a)(2)(B). The IJ also observed that Win did not argue or present evidence that there were
changed or extraordinary circumstances that would have justified the IJ’s consideration of his
untimely application. See 8 U.S.C. § 1158(a)(2)(D). Likewise, Win did not raise any constitutional
claims or matters of statutory construction, a factor that would have allowed this Court to exercise
jurisdiction over his asylum claim. See Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006).
Appellate review of asylum claims is statutorily limited. 8 U.S.C. § 1158(a)(3).2 This Court
recently observed that “§ 1158(a)(3) ‘bar[s] our review of asylum applications denied for
untimeliness . . . when the appeal seeks review of discretionary or factual questions, but not when
the appeal seeks review of constitutional claims or matters of statutory construction.’” Huang v.
Mukasey, 523 F.3d 640, 650 (6th Cir. 2008) (quoting Almuhtaseb, 453 F.3d at 748). Because Win’s
appeal does not seek review of constitutional claims or matters of statutory construction, this Court
lacks jurisdiction to review the IJ’s factual finding that Win’s application was untimely.
B. Claim for Withholding of Removal Under the INA and the CAT
Although this Court lacks jurisdiction to review Win’s asylum claim, it does have jurisdiction
over Win’s appeal of the BIA’s denial of his requests for withholding of removal under the INA and
for protection under the CAT. See Sall v. Gonzales, 251 F. App’x 337, 339 (6th Cir. 2007) (citing
Castellano-Chacon, 341 F.3d at 544-52). “Because the BIA adopted the IJ’s decision, we review
2
The statute provides that:
No court shall have jurisdiction to review any determination of the Attorney General
under paragraph (2).
8 U.S.C. § 1158(a)(3). Paragraph (2)(B) addresses the one-year time bar for asylum applications.
10
the IJ’s decision directly.” Sall, 251 F. App’x at 339 (citing Yu v. Ashcroft, 364 F.3d 700, 702 (6th
Cir. 2004)).
1. Alien’s Burden of Proof
An alien can request the relief of a withholding of removal under both the INA, 8 U.S.C. §
1231(b)(3), and the CAT. Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006). The alien’s
burden of proof under the INA and the CAT is different. “To qualify for withholding of removal
under the INA, an applicant must establish that there is a ‘clear probability’ that if [he] were
removed, [his] life or freedom would be threatened on account of political opinion or the other
protected grounds listed in 8 U.S.C. § 1231(b)(3)(A).” Xiao Ji Chen v. United States DOJ, 434 F.3d
144, 155-56 (2d Cir. 2006). To show that there is a “clear probability,” the applicant must show that
“‘it is more likely than not,’ that [he] would be subject to persecution” on account of a statutorily
protected ground if he was removed. Almuhtaseb, 453 F.3d at 749 (quoting Liti v. Gonzales, 411
F.3d 631, 640-41 (6th Cir. 2005)). “Evidence of past persecution creates ‘a rebuttable presumption
. . . that there is a clear probability of a future threat should the applicant be returned.” Xiao Ji Chen,
434 F.3d at 156 (citing Secaida-Rosales v. INS, 331 F.3d 297, 306 (2d Cir. 2003) and 8 C.F.R. §
208.16(b)(1)). “By contrast, to be eligible for withholding of removal under the CAT,” the applicant
must show that “it is more likely than not that he or she would be tortured if removed to the proposed
country of removal.” Almuhtaseb, 453 F.3d at 749 (internal quotation marks and citation omitted).
2. Standard of Review
“We review the BIA’s decision on a request for withholding of removal under the same
standard regardless of whether the request was made pursuant to the INA or the CAT. . . . We will
11
reverse the BIA’s determination against withholding of removal if it is ‘manifestly contrary to law.’”
Id. at 749 (quoting 8 U.S.C. § 1252(b)(4)(C)). “To reverse the BIA’s determination, we must find
that the evidence not only supports a contrary conclusion, but indeed compels it.” Id. (internal
quotation marks and citation omitted). As to factual findings, “[w]e defer to the administrative
findings of fact except when ‘any reasonable adjudicator would be compelled to conclude to the
contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
3. Adverse Credibility Determination
The IJ denied Win’s claims for withholding of removal under the INA and the CAT based
on a finding that his testimony about past persecution and fear of future persecution lacked
credibility, thus precluding him from satisfying his burden of proof. This is the same reason the IJ
determined that Win’s claim for asylum would be denied even if it had been timely. The BIA held
that the IJ’s adverse credibility finding was not clearly erroneous because of the major discrepancies
between Win’s testimony, his written application, and his corroborating evidence. Win argues that
the BIA erred when it affirmed the IJ’s adverse credibility finding.
Credibility determinations are findings of fact reviewed under the substantial evidence
standard. Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004). This is a highly deferential standard of
review, requiring that “findings of fact are ‘conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.’” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (quoting
8 U.S.C. § 1252(b)(4)(B)). Although highly deferential, “the determination must be supported by
specific reasons, must not be based on irrelevant inconsistencies, and must be based on issues that
‘go to the heart of’ the applicant’s claim.” Xhamxhi v. Gonzales, 188 F. App’x 472, 475 (6th Cir.
12
2006) (quoting Sylla, 388 F.3d at 926). “If discrepancies ‘cannot be viewed as attempts by the
applicant to enhance his claims of persecution, they have no bearing on credibility.’” Daneshvar v.
Ashcroft, 355 F.3d 615, 623 (6th Cir. 2004) (quoting Shah v. INS, 220 F.3d 1062, 1068 (9th Cir.
2000)).3 Because the BIA adopted and affirmed the IJ’s adverse credibility finding, we review the
IJ’s finding directly. Yu, 364 F.3d at 702.
Despite Win’s arguments to the contrary, substantial evidence supports the IJ’s finding that
Win was not credible about his past persecution or his fear of future persecution. In this case,
although a few of the inconsistencies identified by the IJ were irrelevant,4 we conclude that a review
of the record as a whole would not compel a reasonable adjudicator to conclude that Win was
credible. See Yu, 364 F.3d at 702. Other inconsistencies that the IJ relied upon for her adverse
credibility finding go to the heart of Win’s claims of past persecution and fear of future persecution
in Burma and can be viewed as attempts by him to enhance his claims of persecution.
First, Win testified that, after his August 1989 arrest, he was placed on a watch list, was
required to report to the government authorities bi-weekly, and noticed military intelligence people
3
“The REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231, changed the standard governing
credibility determinations, stating that those determinations may be made without regard to whether
an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim. This provision,
however, applies only to those aliens who applied for asylum, withholding of removal, or other relief
on or after May 11, 2005, the effective date of this provision of the Act. Sall, 251 F. App’x at 340,
n.1 (internal quotation marks and citations omitted). Because Win applied for relief earlier than May
11, 2005, this provision of the REAL ID Act does not apply to this Court’s review of his claims. Id.
4
For example, the inconsistency between Win’s testimony that he had no brothers and the
statement about his “brothers” in his application for asylum does not go to the heart of Win’s claims
and thus cannot form a basis for the IJ’s adverse credibility finding. “[M]inor and irrelevant
inconsistencies cannot constitute the basis of an adverse credibility determination.” Sylla, 388 F.3d
at 926.
13
coming around his home. As the IJ noted, Win’s application for asylum states otherwise, i.e., that
after this August 1989 arrest, he was free to be involved in politics again. Additional record facts
corroborate Win’s written admission and undermine the credibility of his testimony about past
persecution and fears of future persecution or torture in Burma. Despite his continued political
activity, Win remained unharmed in Burma for almost seven years, the period between his alleged
August 1989 and May 6, 1996 arrests. Win also testified that, although he continued his political
activity in pro-democracy efforts in Burma, albeit more secretly than in the past, he remained
unharmed in Burma from May 1997 until September 1998, when he left for Thailand. We have
observed that this type of evidence indicates that the applicant’s situation “was not sufficiently grave
to constitute persecution.” Almuhtaseb, 453 F.3d at 750 (citing cases).
The IJ’s adverse credibility finding is further supported by omissions in the corroborating
evidence Win presented and the lack of corroborating evidence reasonably available to Win.
Although Win testified that NLD representative Aung Soe Myint was aware of his past three arrests,
the letter from Myint that Win presented as corroborating evidence failed to mention any of those
arrests. Similarly, although Win testified that his mother was aware of his three arrests and
mistreatment and had let him know that the Burmese government authorities were still asking about
his whereabouts, Win failed to obtain either an affidavit or statement from his mother acknowledging
any of these facts despite her ability to provide him with other documents like his birth certificate
and family certificates. His mother could have also corroborated Win’s testimony about the
circumstances of his father’s death in 1995. IJ determinations regarding the availability of
corroborating evidence are not to be reversed “unless the court finds . . . that a reasonable trier of fact
14
is compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).5
There is nothing in the record that would compel a reasonable trier of fact to conclude that this
corroborating evidence was unavailable. Accordingly, the IJ’s determination cannot be reversed.
The above inconsistencies go to the heart of Win’s claims for withholding of removal and
are sufficient to support the IJ’s adverse credibility determination. Thus, there is no need to address
Win’s additional arguments about other inconsistencies. See Xhamxhi, 188 F. App’x at 476
(observing that “[o]ther circuits hold that a single inconsistency may support an adverse credibility
finding.”).
Here, the IJ determined that, even if Win’s asylum application had been timely, his request
for asylum would be denied on the merits because he was found not to be credible and thus could
not establish past persecution or a well-founded fear of future persecution. Because we conclude that
the IJ’s adverse credibility findings were sufficient “under the less stringent standards for petition
of asylum, the IJ’s findings were also sufficient to reject [Win]’s petition based on the more exacting
standards used for withholding of removal and CAT.” Sall, 251 F. App’x at 341 (citing Hamida v.
Gonzales, 478 F.3d 734, 741-42 (6th Cir. 2007) and Mikhailevitch v. INS, 146 F.3d 384, 391 (6th
Cir. 1998)).
C. “Asylum only” claim.
5
The REAL ID Act of 2005 amended 8 U.S.C. § 1252(b)(4). This amended provision took
effect on May 11, 2005, and, pursuant to § 101(h)(3) of the REAL ID Act, Pub. L. 109-13, Div. B,
Title I, 119 Stat. at 305, applies to all cases where the final administrative order of removal is issued
before, on, or after May 11, 2005. Accordingly, Win’s appeal is governed by this standard.
15
The BIA determined that Win had waived the argument that he should have been in “Asylum
Only” proceedings. Despite Win’s arguments to the contrary, the BIA did not err. Win was charged,
under Section 212(a)(6)(A)(i) of the INA, as amended, 8 U.S.C. § 1182(a)(6)(A)(i), as an alien
present in the United States without being admitted or paroled, or as an alien who has arrived in the
United States at a time or place other than designated by the Attorney General. The record reflects
that Win conceded this charge of removability. Moreover, Win never complained to the IJ about this
charge or the nature of his removal proceedings. Rather, he raised this challenge for the first time
in his administrative appeal. Because Win failed to raise this argument before the IJ, the BIA
correctly concluded that the argument was waived. See Shehu v. Gonzales, 151 F. App’x 437, 441-
42 (6th Cir. 2005) (holding that, because the petitioner failed to complain about a translator’s
deficiencies during his removal proceedings, “the BIA properly held that he waived any objection
to the quality of the translation.”).
III.
For the foregoing reasons, we DENY the petition for review.
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