Case: 10-60889 Document: 00511585922 Page: 1 Date Filed: 08/29/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 29, 2011
No. 10-60889
Summary Calendar Lyle W. Cayce
Clerk
MIN YE,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088-367-201
Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner Min Ye, a citizen of the People’s Republic of China, petitions for
review of a decision by the Board of Immigration Appeals (BIA) dismissing his
appeal of the immigration judge’s (IJ) decision to deny his application for
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). Ye has abandoned any challenge to the denial of relief under the
CAT by failing to adequately argue the issue in his petition for review. See
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Ye sought immigration relief based on his alleged persecution or fear of
persecution on account of his violation of China’s family planning policy and his
support of Falun Gong. The IJ denied relief after finding that Ye was not a
credible witness, and the BIA upheld the IJ’s adverse credibility determination,
holding that Ye had failed to meet his burden of proving eligibility for any relief
sought. Ye challenges those negative credibility determinations.
This court reviews an immigration court’s findings of fact for substantial
evidence. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). “‘[A]n IJ may rely
on any inconsistency or omission in making an adverse credibility determination
as long as the ‘totality of the circumstances’ establishes that an asylum applicant
is not credible.’” Id. at 538 (quoting Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008)). This court will “defer therefore to an IJ’s credibility determination
unless, from the totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.” Id. (internal
quotation marks and citation omitted).
The record supports the IJ’s determination that Ye’s testimony was in
some respects internally inconsistent, that the testimony conflicted in some
respects with Ye’s prior statements, and that Ye had failed to mention in prior
statements his 12-hour detention and beating as a result of his support of Falun
Gong. To the extent that Ye argues that his corroborating evidence was not
properly considered, the BIA observed that the IJ properly considered the
corroborating documents Ye submitted but observed that his submissions did
not ameliorate Ye’s failure to present “‘otherwise credible testimony.’” 8 U.S.C.
§ 1158(b)(i)(B)(ii). The IJ found the corroborating evidence insufficient to meet
Ye’s burden given that his testimony was “incredible, unreliable, and he rapidly
changes it from one question and answer to the next.”
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We will not substitute our judgment for that of the BIA or IJ with respect
to factual findings based on credibility determinations. See Wang, 569 F.3d at
537. Substantial evidence supports the determination of the IJ and BIA denying
Ye’s application for asylum and withholding of removal. See id. at 536-37. In
light of the inconsistencies and omissions in Ye’s testimony and statements, the
evidence is not “so compelling that no reasonable factfinder could conclude
against it.” Id. at 537.
Ye argues that the IJ was hostile and failed to act as a neutral and
impartial adjudicator. The Due Process Clause entitles aliens to due process in
immigration proceedings. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 302 (5th
Cir. 2002). Although the absence of a neutral arbiter can be the basis for a due
process claim, Wang, 569 F.3d at 540, Ye has not demonstrated such a violation.
The IJ’s adverse credibility determination “cannot be disturbed simply because
[Ye] believes the IJ was unfriendly or even hostile.” Id. at 540-41.
PETITION DENIED.
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