In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1526
NING WANG,
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. A201‐003‐028
____________________
ARGUED NOVEMBER 15, 2016 — DECIDED JANUARY 3, 2017
____________________
Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
PER CURIAM. Ning Wang, a 25‐year‐old Chinese citizen
(from Shenyang, the capital of the northeastern province of
Liaoning), petitions for review of the denial of his applica‐
tions for asylum and withholding of removal based on his fear
of religious persecution for attending unsanctioned Christian
gatherings. Wang also challenges the Immigration Judge’s
2 No. 16‐1526
finding that his application was frivolous—a consequential
finding that bars him from obtaining any future immigration
benefits. We deny the petition with regard to the denial of his
applications for immigration relief, but grant the petition with
regard to the finding of frivolousness.
Wang came to the United States in December 2010 on a
student visa he obtained to attend Benedictine University at
Springfield College in Springfield, Illinois. Wang never at‐
tended the school, however, and instead worked part‐time at
various restaurants in Chicago.
In October 2011, Wang applied for asylum with the De‐
partment of Homeland Security, but the asylum officer denied
his application, and DHS initiated removal proceedings
against him. Wang was charged with removability based on
his failure to comply with the conditions of the nonimmigrant
status under which he was admitted. At a hearing before the
IJ, Wang conceded his removability and renewed his applica‐
tion for asylum.
At a later hearing, Wang testified that he sought asylum
based on his fear of persecution for being a practicing Chris‐
tian. Wang said that he started practicing Christianity after re‐
covering from a month‐long illness at age 17 thanks, in his
eyes, to the daily prayers of his Christian grandmother. He
then began accompanying his grandmother to Christian gath‐
erings at a local pastor’s home. He preferred attending these
gatherings to those at the government‐sanctioned church,
which he said was “controlled by the Communists.”
Wang testified that he was injured in late 2009 during a
police raid on one of the pastor’s gatherings. He said that he
was hit three times with a police baton, necessitating medical
No. 16‐1526 3
treatment—first at the small clinic near his home, and then a
few days later at a larger hospital.
A couple months later, in March 2010, Wang again got
caught up in a police raid during a Christian gathering, and
this time he was arrested and detained for a week. During this
detention, he said, he was interrogated, kicked, punched,
struck with a “leather whip,” and beaten with a baton. His
parents paid a fine to get him released, and he sought treat‐
ment at the hospital for “bruises” and a skin “rash.” Later, the
police continued to “beat [him] up” every time they spotted
him on the street.
The IJ wholly disbelieved Wang’s testimony, and denied
his applications for asylum, withholding of removal, and pro‐
tection under the Convention Against Torture. The IJ found
Wang’s testimony “riddled” with discrepancies, “extremely
implausible, incredible, and inconsistent,” and the judge did
not believe that Wang “even attended an underground gath‐
ering or was a practicing Christian in China.” The IJ went so
far as to impose a frivolous filing bar against Wang, conclud‐
ing that Wang’s documentation was “fabricated to support his
already‐filed request for asylum.” A frivolous finding bar has
the effect of permanently disqualifying an alien from any
“benefits” under the immigration laws. See 8 U.S.C.A.
§ 1158(d)(6).
The IJ based his adverse credibility finding in large part on
inconsistencies between Wang’s in‐court testimony and his
submitted documents. These inconsistencies included the fol‐
lowing: (1) The medical record Wang submitted to the court
was from the village health department and not from the hos‐
pital, as Wang testified; (2) Wang’s application for asylum
stated that 10 police officers showed up at the 2009 raid, but
4 No. 16‐1526
he testified at his hearing that there were 17; (3) Wang stated
in his asylum application that he suffered a concussion as a
result of the 2010 beatings, but at his hearing he testified that
the concussion occurred during the 2009 incident; (4) A letter
Wang submitted from his father stated that Wang suffered a
bone fracture as a result of the police beatings, but Wang tes‐
tified at the hearing that his father’s reference to the bone frac‐
ture may have been “exaggerate[d] a little bit”; and (5) Wang’s
father wrote in his letter that he, too, was a pious Christian,
but Wang denied at the hearing that his father attended ser‐
vices with him.
The IJ also partially based his adverse credibility finding
on Wang’s lack of evidence that he was a practicing Christian.
The IJ acknowledged a letter from one of Wang’s friends re‐
counting their meeting at a Chicago church, but the IJ noted
that Wang did not claim that he had been baptized or other‐
wise confirm that he was a practicing Christian.
The IJ also took a step further and ruled that Wang had
filed a frivolous asylum application. The IJ based this finding
on the same inconsistencies upon which he found Wang not
credible, as well as Wang’s failure to supplement his initial
asylum application in 2011 with medical evidence, a deten‐
tion warrant, or other documents to corroborate his mistreat‐
ment in 2009 and 2010. The IJ concluded that Wang’s docu‐
mentation “was fabricated to support his already‐filed re‐
quest for asylum.”
The Board of Immigration Appeals upheld both the IJ’s ad‐
verse credibility finding as well as his conclusion that Wang’s
asylum application was frivolous. According to the Board, the
IJ had identified significant inconsistencies in his testimony,
and Wang did not provide “persuasive, reliable corroborating
No. 16‐1526 5
evidence” that could have “rehabilitate[d] his incredible testi‐
mony.” Regarding the IJ’s decision to impose a frivolous filing
bar, the Board accepted the IJ’s finding that Wang “knowingly
misrepresented that he was a practicing Christian in China,
that he attended an underground religious gathering, and
that he was detained and mistreated by authorities in China.”
In his petition for review, Wang argues that the IJ erred in
his adverse credibility finding because all of the identified in‐
consistencies were either minor or sufficiently explained. For
example, to the extent there were minor discrepancies be‐
tween his testimony and his written statement over the harm
he suffered while in detention, Wang asserts that his testi‐
mony “did not simply parrot” his written statement and in‐
stead provided “a more detailed description of his abuse.”
Wang also discounts the “mistake” in his father’s letter about
his injuries as “minor,” and points out that the IJ failed to
acknowledge that Wang corroborated his testimony by sub‐
mitting a Warrant of Detention.
But the Board’s reasons for upholding the IJ’s adverse
credibility finding are sufficient to support its conclusion that
Wang’s application for relief should be denied. An adverse
credibility finding can be supported by any non‐trivial incon‐
sistencies in the applicant’s story. See Tawuo v. Lynch, 799 F.3d
725, 727 (7th Cir. 2015). Wang’s testimony regarding his inju‐
ries, medical records, and police encounters was inconsistent.
While too much should not be made of either minor memory
lapses, see Kadia v. Gonzales, 501 F.3d 817, 822 (7th Cir. 2007),
or trivial discrepancies (such as whether the home of Wang’s
pastor was raided by 10 or by 17 police officers, or whether he
suffered his concussion in 2009 or 2010), Wang’s inconsistent
6 No. 16‐1526
testimony about the source of his medical records and the in‐
formation in his father’s letters supports the IJ’s conclusion
that he was not credible.
Wang also challenges the determination that the frivolous‐
application bar applied. See 8 U.S.C. § 1158(d)(6). According
to Department of Justice regulations, an application is frivo‐
lous if “any of its material elements is deliberately fabricated.”
8 C.F.R. § 1208.20; Albu v. Holder, 761 F.3d 817, 821 (7th Cir.
2014). Wang argues that the IJ made the “astounding” logical
leap that his submission of additional supporting documents
after applying for asylum meant that his submitted documen‐
tation was deliberately fabricated.
The IJ’s frivolous‐application finding is unsupported by
the record. The IJ addressed his finding in only conclusory
terms and nowhere explained how he determined that Wang
had deliberately fabricated material elements of his claim:
This Court believes that the respondent’s al‐
leged torture and mistreatment was deliberately
fabricated to enhance his asylum filing. When
respondent was given opportunity to explain
this, he simply could not change his story and
suggested more harm in 2009. When asked
about the discrepancies in the medical evidence
that he allegedly had at the time he was treated
in China, he could not even answer the ques‐
tions concerning where the medical evidence
came from and the nature of his treatment. In
short, I find the respondent’s request for asylum
is frivolous. This Court does not believe that he
was mistreated by the authorities in China be‐
cause of attending an underground gathering.
No. 16‐1526 7
We, as well as our sister circuits, generally have required
much more indisputable evidence of deliberate fabrication to
uphold findings of frivolousness. See, e.g., Siddique v. Mukasey,
547 F.3d 814, 815 (7th Cir. 2008) (petitioner confessed that he
had lied about police murdering his family by forging police
and autopsy reports); Ignatova v. Gonzales, 430 F.3d 1209, 1214
(8th Cir. 2005) (medical records submitted by the alien were
identified by the hospital as fraudulent); Selami v. Gonzales,
423 F.3d 621, 626–27 (6th Cir. 2005) (documents provided by
the alien were clear forgeries when compared to true copies
of the originals); Barreto‐Claro v. U.S. Att’y Gen., 275 F.3d 1334,
1339 (11th Cir. 2001) (alien admittedly lied in his prior asylum
application). In contrast, the IJ here seemed to base his frivo‐
lousness finding on a lack of credible evidence rather than any
evidence that Wang had made deliberate falsehoods. To the
extent the IJ based his finding on discrepancies between
Wang’s account and documentary evidence, an adverse cred‐
ibility determination alone is insufficient to support a frivo‐
lousness finding. See Yuanliang Liu v. U.S. Dep’t of Justice, 455
F.3d 106, 115 (2d Cir. 2006) (error for IJ to “parlay an ordinary
adverse credibility decision into a finding of frivolousness”);
Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1318 (11th Cir. 2006).
Given “the severity of the consequences” that result from a
frivolousness finding, an IJ must provide “cogent and con‐
vincing reasons” for finding that an asylum applicant know‐
ingly and deliberately fabricated material elements of the
claim. Matter of Y‐L‐, 24 I. & N. Dec. 151, 158 (BIA 2007). The
IJ’s reasons here do not satisfy that standard.
Because substantial evidence supports the IJ’s conclusions
that Wang was not credible and did not adequately corrobo‐
rate his account, we deny the petition with respect to the de‐
8 No. 16‐1526
nial of his applications for immigration relief. Substantial ev‐
idence, however, does not support the IJ’s finding that Wang
deliberately fabricated material elements of his application, so
we grant Wang’s petition with regard to the finding of frivo‐
lousness.