NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3850
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PUCUO DAWA, Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES, Respondent
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On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Henry S. Dogin
(No. A088-533-371)
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Submitted Under Third Circuit LAR 34.1(a)
November 15, 2011
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Before: McKEE, Chief Judge, RENDELL, and AMBRO, Circuit Judges
(Opinion filed: November 30, 2011)
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OPINION
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AMBRO, Circuit Judge
Pucuo Dawa seeks review of a final order of the Board of Immigration Appeals
(“BIA”) denying his request for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”), as affirmed by
the BIA, found that Dawa — a self-identified Tibetan dissident — did not credibly
establish that the Chinese government persecuted him in the past nor did he credibly
establish a well-founded fear that the Chinese government will persecute him in the
future. In addition, the IJ and the BIA found that Dawa failed to establish a clear
probability that his life or freedom would be threatened if he returned to China, that he
was tortured in the past, or that it is more likely than not that he will be tortured in the
future. Because the evidence does not compel a contrary conclusion, we deny the
petition for review.
I.
Because we write solely for the parties, we set forth only those facts necessary for
our decision. Dawa was admitted to the United States in February 2007 on a religious
worker visa. In October 2007, he filed an affirmative application for asylum, withholding
of removal, and relief under the CAT. Dawa’s asylum officer denied his application
because he failed to establish his identity as a Tibetan. In November 2007, the
Department of Homeland Security (“DHS”) served Dawa with a Notice to Appear,
alleging that he did not fulfill the requirements of his religious worker visa and was
therefore out of status and removable. After two preliminary hearings, Dawa testified
before an IJ in November 2008 as the sole witness in support of his applications for relief
from removal. The IJ found Dawa not credible, denied all forms of relief, and ordered
him removed. The BIA dismissed his appeal and this petition for review followed.
At the removal hearing, Dawa testified that he is an ethnic Tibetan who was forced
to flee China because he is an advocate for Tibetan independence. He did not produce
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his birth certificate or his Chinese identification card, which would indicate any Tibetan
ethnicity. His passport makes no mention of Tibetan ethnicity even though, as Dawa
admits, the Chinese government would have relied on the information on his
identification card when creating his passport. Dawa testified that he was born in Khula
Shan Village in Sichuan Province; however, his green book (a document issued by the de
facto Tibetan government in exile) lists his birthplace as Oatqku.
According to his testimony, Dawa was arrested, interrogated, and detained for
over three months in 2001 for distributing pamphlets advocating Tibetan independence in
Lithang, a town located in the Ganzi Tibetan Autonomous Prefecture. During his
detention, Dawa claims he was physically abused and threatened with death. After his
release, he continued his nomadic lifestyle with his wife and children, traveling
throughout Sichuan Province and other parts of China. Dawa returned to Lithang in
August 2006, scattering flyers advocating for a free Tibet. Several months later he met a
Buddhist monk in Beijing who helped him obtain his passport and religious worker visa.
After he arrived in the United States in February 2007, Dawa continued his advocacy by
participating in demonstrations against the Chinese government. He testified that a few
weeks before his hearing a man named Tharchen, a Tibetan living in New York who did
not testify or submit any affidavits, supposedly spoke on the phone with others in Lithang
who informed Dawa that the police were searching for him.
When denying Dawa’s claims for relief, the IJ expressed doubt that he was in fact
Tibetan because he provided no supporting documentation and his testimony about his
birthplace conflicted with his green book. Nevertheless, the IJ assumed Dawa was
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Tibetan and found that he did not meet his burden of establishing asylum eligibility.
With respect to past persecution, the IJ found it implausible that the Chinese government
would have allowed Dawa to continue traveling throughout the country without incident
from 2001 to 2006 if he was in fact arrested and detained in 2001 for dissidence. In
addition, the IJ concluded that Dawa did not meet his burden of showing a well-founded
fear of future persecution because the IJ did not believe that there was credible evidence
that anyone was looking for Dawa in China. The IJ also denied Dawa’s CAT claim
because Dawa did not show that the Chinese government would torture him if he returned
to China.
The BIA dismissed Dawa’s appeal. It found that the IJ properly considered the
totality of the circumstances in finding that Dawa lacked credibility based on problems
with his evidence, portions of his testimony, and inconsistencies in the record. The BIA
noted that Dawa did not present reasonably available corroborating evidence nor did he
claim that such evidence was not reasonably available or offer a sufficient explanation,
when given the opportunity, as to why he did not submit more evidence. The BIA also
agreed with the IJ’s factual findings and legal conclusions regarding Dawa’s CAT claim.
II.
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) to review the IJ’s removal
decision. We have jurisdiction under 8 U.S.C. § 1252 to review the BIA’s final order of
removal.
“[W]hen the BIA both adopts the findings of the IJ and discusses some of the
bases for the IJ’s decision, we have authority to review the decisions of both the IJ and
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the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review legal
conclusions de novo. Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d Cir. 2006). We
review factual findings, including adverse credibility determinations, under the
substantial evidence standard. Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir. 2009).
This is an “extraordinarily deferential standard.” Id. (quoting Chen, 376 F.3d at 226).
We are required to afford the IJ’s adverse credibility determinations such great deference
so long as the IJ provides “specific, cogent reasons” why the applicant is not credible.
Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). If those reasons are provided,
we may not overturn an adverse credibility determination unless we conclude that “any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B) (emphasis added). To reverse an adverse credibility finding, “the
evidence of credibility must be so strong . . . that in a civil trial [the applicant] would be
entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
III.
To establish eligibility for asylum, Dawa must show by a reasonable likelihood
either that he experienced past persecution or that he has a well-founded fear of future
persecution. 8 U.S.C. § 1101(a)(42)(A) & § 1158(b)(1)(A). To establish a well-founded
fear of future persecution, he must first “demonstrate a subjective fear of persecution
through credible testimony that [his] fear is genuine.” Lie v. Ashcroft, 396 F.3d 530, 536
(3d Cir. 2005). Then, he must make the objective showing that “‘a reasonable person in
[his] circumstances would fear persecution if returned to the country in question.’” Id.
(quoting Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003)).
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To establish eligibility for withholding of removal, Dawa must show by a “clear
probability that [his] life or freedom would be threatened” in China. Zubeda v. Ashcroft,
333 F.3d 463, 469 (3d Cir.2003) (internal quotation marks omitted). A “clear
probability” means that it is “more likely than not” that he would be subject to
persecution. Id. Similarly, to establish eligibility for relief under the CAT, Dawa must
“establish that it is more likely than not that he . . . would be tortured if removed to”
China. 8 C.F.R. § 1208.16(c)(2). The “clear probability” standard required for
withholding of removal is a “more rigorous” standard than the “well-founded fear”
standard for asylum. Zubeda, 333 F.3d at 469. Thus, if Dawa fails to meet the latter
standard, he necessarily will fail to meet the clear probability standard required for
withholding of removal. Id. at 469-70.
Under the REAL ID Act of 2005, which applies here, credibility determinations in
relation to applications for asylum must be made “[c]onsidering the totality of the
circumstances,” and may be based on “the inherent plausibility of the applicant’s . . .
account, the consistency between the applicant’s . . . written and oral statements . . ., the
consistency of such statements with other evidence of record . . ., and any inaccuracies or
falsehoods in such statements.” 8 U.S.C. § 1158(b)(1)(B)(iii). The trier of fact may make
the assessment “without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other relevant factor.” Id. Even if the
applicant gives otherwise credible testimony, the trier of fact may require the applicant to
submit corroborating evidence, unless the applicant does not have the evidence or cannot
reasonably obtain the evidence. 8 U.S.C. § 1158(b)(1)(B)(ii).
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The IJ found that Dawa failed to establish past persecution because the IJ
considered implausible Dawa’s testimony that he had been detained and fingerprinted by
Chinese authorities in 2001, but nonetheless was able to continue traveling as a known
dissident throughout China and Tibet for the next five years without incident. After
reviewing the record, we cannot say that no reasonable factfinder would find Dawa’s
testimony to be incredible or (put differently) that a reasonable factfinder would be
compelled to find in Dawa’s favor.
In addition, Dawa failed to meet his burden of proof with respect to future
persecution because he did not present corroborating evidence that appears to have been
reasonably available to him. Dawa could have presented testimony or an affidavit from
Tharchen, who was just across the Hudson River in New York City, but he did not. As
the IJ and the BIA noted, Tharchen could have spoken to whether Chinese authorities
were in fact looking for Dawa and how (and from whom) he obtained that information.
Dawa has not offered a sufficient explanation as to why he did not and could not submit
further evidence from Tharchen.
Neither the IJ nor the BIA committed reversible error in finding that Dawa did not
credibly establish that (1) he suffered past persecution, (2) he has a well-founded fear of
future persecution, (3) there is a clear probability that his life or freedom would be
threatened if he returned to China, (4) he was tortured in the past, or (5) it is more likely
than not that he will be tortured in the future. Accordingly, we deny Dawa’s petition for
review.
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