In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3357
GUIHU YANG,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A089‐678‐703
____________________
ARGUED JUNE 8, 2016 — DECIDED AUGUST 12, 2016
____________________
Before BAUER, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. Guihu Yang, a 52‐year‐old Chinese
citizen from Shanxi province, petitions for review of the de‐
nial of his application for asylum based on his fears of forced
sterilization under China’s one‐child policy. Because substan‐
tial evidence supports the IJ’s conclusions that Yang was not
credible and that he did not adequately corroborate his ac‐
count, we deny the petition.
2 No. 15‐3357
Background
Yang came to the United States in 2007 on a business‐visi‐
tor visa he obtained by misrepresenting to U.S. officials that
he hoped to attend a university conference. A few months
later, he applied for asylum with U.S. Citizenship and Immi‐
gration Services, asserting that his wife twice had been forced
to undergo abortions and that he had been fired from his job
for refusing to be sterilized. His application was denied, and
he was placed in removal proceedings for having overstayed
his visa.
At his removal hearing, Yang renewed his application for
asylum and testified about his family’s encounters with
China’s family‐planning apparatus. Yang and his wife,
Xiping Yao, had a son born in 1990. The son apparently was
in poor health. When asked to describe his son’s condition,
Yang simply said that the boy was “very weak” and caught
colds easily but doctors’ examinations produced no exact di‐
agnosis. According to Yang, their son’s poor health was the
reason that he and his wife wanted to have a second child. In
2002 Yao became pregnant, and the couple sought permission
to have a second child from the local birth‐control committee.
Their request was denied. Family‐planning officials then be‐
gan threatening them with fines and loss of their jobs unless
Yao underwent an abortion. The couple eventually gave in,
though Yang maintains that they had no real choice. After the
abortion, officials continued to visit their home once or twice
a month to remind them that they were not free to have an‐
other child.
In late 2006, Yao became pregnant again. To avoid atten‐
tion, she moved in with Yang’s parents in a village about an
No. 15‐3357 3
hour’s drive away. But within a month, family‐planning offi‐
cials from her workplace discovered her whereabouts, show‐
ing up at the home one night. Yang, who was not present be‐
cause he had remained in the city to continue working, testi‐
fied that the authorities “intimidated” her over the course of
six hours and then forcibly took her to the hospital to have an
abortion.
Yao also testified at Yang’s asylum hearing and expanded
on this episode. She said that the officials wore her down with
their threats and intimidation, until she agreed to go back to
her workplace and “resolve” the matter. On the ride back she
fell asleep and awakened to find the car parked outside of a
hospital. The officials dragged her out of the car, and at some
point during her struggle with them she fell down a flight of
stairs and was knocked unconscious. She said that the fall
fractured her left arm and caused her to bleed from her lower
body. Upon regaining consciousness, she realized that she
had had an abortion. She remained in the hospital for three
months—a stay necessitated, she said, because of her frac‐
tured arm.
After the episode, family‐planning officials wanted Yang
to be sterilized; his wife’s health, they said, was too compro‐
mised after the abortion to undergo the procedure herself.
Yang refused, and a few months later his employer fired him
for doing so. Family‐planning officials also frequented his
home and demanded that he undergo sterilization. Fearing
these visits, Yang said that he avoided his home and stayed
with friends or relatives. On the few occasions that he did re‐
turn home and encountered officials, he rebuffed them.
In November 2007 Yang left China, alleging that he feared
being forcibly sterilized. Since his departure, his wife and
4 No. 15‐3357
neighbors have told him that officials continue to look for
him. His wife joined him in the United States in October 2012
on a tourist visa that she overstayed.
Yang supplemented his application with corroborative
documents. He submitted a medical record from Yao’s hospi‐
tal stay—saying that she was hospitalized for three months
because of a bone fracture and “broken nerve” on her left arm.
He also included two letters from neighbors in China saying
that family‐planning officials had inquired about his wherea‐
bouts, as well as a letter from his workplace manager stating
that he was fired for refusing to be sterilized, as required by
the company’s family‐planning officials.
The IJ disbelieved the testimony of Yang and his wife, and
denied his applications for asylum, withholding of removal,
and protection under the Convention Against Torture. The IJ
offered six reasons for finding Yang not credible. One reason
had to do with Yang’s testimony that he did not know in 2006
whether he could have a second child legally; the IJ found this
testimony implausible, given Yao’s abortion in 2002 and the
frequent harassment that the couple said they endured from
family‐planning officials. Among other reasons, the IJ also be‐
lieved that Yang had testified inconsistently about the details
surrounding his son’s allegedly poor health, about the visits
that family‐planning officials purportedly made to his home
after his wife’s second abortion, and about the particular cir‐
cumstances in which he was fired from his job. The IJ also
found Yao not credible, primarily because she struggled to
answer questions and had difficulty remembering the details
of the second abortion. Finally, the IJ concluded that, under
the terms of the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii),
Yang had not provided sufficient corroborative evidence to
No. 15‐3357 5
carry his burden of proof because he did not provide medical
records confirming treatments or procedures received by ei‐
ther his wife or son during their hospitalizations.
The Board of Immigration Appeals upheld the IJ’s deci‐
sion, concluding that the IJ had properly supported her find‐
ings concerning credibility and corroboration. The Board
highlighted three of the IJ’s reasons for finding Yang not cred‐
ible. First, Yang’s statement that he did not know whether he
and his wife legally could have a second child in 2006 was
implausible, given the couple’s past run‐ins with family‐plan‐
ning officials and Yao’s forced abortion earlier in 2002. Sec‐
ond, in his written statement accompanying his initial asylum
application, Yang failed to mention any encounters with fam‐
ily‐planning officials after his wife’s second abortion or any
reports that these officials sought him after he left China.
Third, Yang testified inconsistently regarding the extent he
stayed away from his own home after the second abortion
and whether during this time he encountered family‐plan‐
ning officials.
The Board also agreed with the IJ that Yao’s testimony was
“insufficiently reliable and credible” because of her “absent‐
mindedness” and difficulty recalling details. And Yang’s cor‐
roborative evidence was insufficient, the Board added, be‐
cause the hospital record he submitted did not mention the
abortion procedure and the letter from his manager did not
explain why family‐planning officials continued to pursue
him after he was fired.
6 No. 15‐3357
Analysis
On appeal, Yang challenges three of the IJ’s express rea‐
sons (endorsed by the Board) for finding him not credible. If
the IJ had credited his testimony, his fears of forced steriliza‐
tion could form the basis for a well‐founded fear of future per‐
secution. See 8 U.S.C. § 1101(a)(42)(B); Chen v. Holder, 604 F.3d
324, 330–31 (7th Cir. 2010). Regarding the IJ’s first reason—
inconsistencies in his statements about whether he and his
wife lawfully could have a second child—he asserts that fam‐
ily‐planning enforcement is left to local officials’ discretion,
and that he plausibly hoped that his son’s chronic health con‐
dition could justify an exemption to have a second child—as
permitted with other families whose first child had a disabil‐
ity.
But the IJ reasonably could find this explanation uncon‐
vincing. As the Board noted, just four years earlier in 2002,
Yao was forced to have an abortion despite whatever health
problems afflicted their son, and even afterwards the couple
was—in Yang’s words—“frequently harassed” by officials
who told them that they could not have another child. More‐
over, Yang has never specified the nature of the health issues
that affected his son; indeed, the son apparently was healthy
enough to work at a fast‐food restaurant, as Yao testified.
Regarding the second reason that the IJ (and Board) of‐
fered for discrediting him—the omission from his initial writ‐
ten statement that family‐planning officials had visited him
repeatedly in the months following his wife’s 2006 abortion
and searched for him even after he left the country—Yang
contends that any omission is insignificant. But this discrep‐
ancy (as the IJ pointed out) strikes at his central reason for
No. 15‐3357 7
fleeing China and seeking asylum—that he was being pur‐
sued by officials seeking to forcibly sterilize him. We have up‐
held adverse credibility findings based on non‐trivial incon‐
sistencies between an asylum applicant’s testimony and ap‐
plication. See Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015);
Hassan v. Holder, 571 F.3d 631, 637 (7th Cir. 2009). The omis‐
sion from Yang’s original written statement of any mention of
frequent visits by family‐planning officials is a noteworthy in‐
consistency that the IJ was entitled to rely on.
As for the third reason—regarding his testimony about the
degree to which he stayed away from his home to evade fam‐
ily‐planning officials (staying away entirely vs. most of the
time)—he denies that there was any inconsistency. He main‐
tains that he credibly testified about needing to stay away
from home to avoid the officials but encountering them on in‐
termittent occasions when he briefly returned home.
We agree with Yang that this reason is unpersuasive, but
on its own this flaw is insufficient to disturb agency’s the ad‐
verse credibility finding. Viewed in context, Yang’s two state‐
ments were compatible: he did not testify that he never went
home; he consistently alluded to returning for brief visits. The
IJ’s unpersuasive reason notwithstanding, the Board’s first
two reasons are sufficient to support the adverse credibility
finding. An adverse credibility finding can be supported by
any non‐trivial inconsistencies in the applicant’s story, as is
the case here. See Tawuo, 799 F.3d at 727; Hassan, 571 F.3d at
637.1
1 Further, Yang does not articulate—and therefore has waived—any
challenge to several other reasons that the IJ gave for discrediting Yang’s
testimony: his inconsistent testimony about whether he was fired by letter
8 No. 15‐3357
Yang also challenges the IJ’s finding that his wife was not
credible. She had described being forced to undergo two abor‐
tions, the second of which followed a physical struggle with
family‐planning officials that resulted in her falling down a
flight of stairs and being knocked unconscious.
The IJ’s assessment of Yao’s testimony indeed was flawed,
but we accept the Board’s determination that her testimony
could not cure the defects in Yang’s account. Her testimony
does not salvage the omissions and inconsistencies that we’ve
already addressed in Yang’s testimony and written state‐
ments. Nonetheless, two missteps in the IJ’s analysis of Yao’s
credibility need to be pointed out. In discrediting Yao, the IJ
relied on questionable assumptions about her demeanor in re‐
marking that she “became increasingly uncomfortable and
nervous, and her responsiveness diminished” and that she
“struggled to answer questions.” First, we’ve commented on
the unreliability of demeanor evidence generally, see United
States v. Pickering, 794 F.3d 802, 805 (7th Cir. 2015), and the
particular difficulty of using such evidence to evaluate the
credibility of witnesses from other cultures, see Djouma v. Gon‐
zales, 429 F.3d 685, 687 (7th Cir. 2005). And we’ve criticized an
overreliance on findings arising from minor memory lapses
when a witness testifies about events from years earlier.
See Kadia v. Gonzales, 501 F.3d 817, 822 (7th Cir. 2007). Second,
the IJ faulted her for not remembering particular circum‐
stances at the hospital that she could not reasonably have
known if she was knocked unconscious, as she testified—e.g.,
or by phone call, whether he had any savings to draw from when he lost
his job, the precise age at which his son’s health problems became appar‐
ent, and whether the son now holds a job. See Haichun Liu v. Holder,
692 F.3d 848, 851 (7th Cir. 2012).
No. 15‐3357 9
how many stairs she fell down, why she was bleeding from
her lower body, having no recollection of the abortion proce‐
dure.
Yang also challenges the agency’s conclusion that he did
not sufficiently corroborate his account under the REAL ID
Act, and in particular, that he should have been able to obtain
more medical documents about his wife’s and son’s medical
circumstances. Yang asks whether other documentation rea‐
sonably would have been available. Although we agree that
the IJ and the Board inappropriately faulted Yang for not
providing evidence of any forced abortions, see San Kai Kwok
v. Gonzales, 455 F.3d 766, 771 (7th Cir. 2006); Zhang v. Gonzales,
434 F.3d 993, 999–1000 (7th Cir. 2006), the IJ was entitled to
expect corroboration of other medical treatment that his wife
and son received. When asked whether the hospital had rec‐
ords pertaining to his son, Yang replied that it did, and even
acknowledged that he would have been given them had he
asked, but he simply didn’t think to do so. Nor did Yang think
to provide any evidence about the medical condition of his
son, whose poor health was the basis for Yang’s contention
that he might have qualified for an exemption from the one‐
child policy. More puzzlingly, Yang supplied no evidence to
explain why his wife needed to remain in the hospital for as
long as three months to treat a fractured arm. Because this ev‐
idence was reasonably obtainable, the IJ was entitled to re‐
quire Yang to provide it to sustain his burden of proof.
See 8 U.S.C. § 1158(b)(1)(B)(ii).
Finally, Yang contends that the IJ and the Board failed to
address his eligibility for withholding of removal and protec‐
tion under CAT. But as the government correctly points out,
Yang waived these challenges because his appeal to the Board
10 No. 15‐3357
addressed his application for asylum only. See 8 C.F.R.
§ 1003.3(b).
Because substantial evidence supports the IJ’s conclusion
that Yang was not credible and that he had not sufficiently
corroborated his account, we deny the petition for review.