[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 8, 2009
No. 08-15797 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A098-564-340
MU SHUI LI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 8, 2009)
Before BIRCH, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Mu Shui Li, a native and citizen of China, seeks review of the Board of
Immigration Appeals’ (“BIA”) order denying asylum and withholding of removal
under the Immigration and Nationality Act (“INA”) and relief under the United
Nations Convention Against Torture (“CAT”). In his petition, Li challenges the
adverse credibility finding of the Immigration Judge (“IJ”) and the BIA. Based on
our review of the record, we AFFIRM the BIA’s decision and DENY the petition
for review.
I. BACKGROUND
Li was served with a notice to appear charging him with removability after
he attempted to enter the United States on 7 April 2005 without a valid entry
document. Li conceded removability and applied for asylum, withholding of
removal, and CAT relief. At the administrative hearing, Li claimed he was
persecuted by the Chinese government because he sold Falun Gong books.
Specifically, Li testified that the police had tried to arrest him for selling the illegal
materials. According to Li, the police arrested his partner, destroyed his store
furnishings, and closed down his bookstore. The IJ denied his application for lack
of credibility and failure of proof.
The BIA adopted and affirmed the IJ’s opinion with some additions. In
upholding the IJ’s adverse credibility finding, the BIA emphasized the following:
(1) the discrepancies between Li’s testimony, airport interview, and credible fear
interview; (2) his failure to provide corroborating evidence; (3) his conflicting
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statements on why he sold Falun Gong materials; (4) his conflicting statements that
he supported Falun Gong but had no idea what its followers believed in; and (5) his
failure to submit letters, affidavits, or other documentation regarding his ownership
of the bookstore and involvement in Falun Gong. The BIA concluded, “Without
credible testimony the respondent did not meet his burden of proof . . . for asylum,
withholding of removal or protection under the CAT.” Administrative Record
(“AR”) at 2.
In his petition for review, Li argues that the BIA erred in affirming the IJ’s
adverse credibility finding because it was not based on specific, cogent reasons or
supported by substantial evidence. Li asserts that he gave consistent answers, the
IJ failed to consider all the evidence, and the IJ should not have relied on the
defective airport interview. Li also contends that his testimony established that he
had a well-founded fear of future persecution based on his imputed political
opinion.
II. DISCUSSION
We review the decisions of both the IJ and the BIA because the BIA
expressly adopted and affirmed the IJ’s decision with a few additions. See
Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1312 (11th Cir. 2006). We review the
administrative agency’s factual determinations under the substantial evidence test,
and must affirm if the decisions are “supported by reasonable, substantial, and
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probative evidence on the record considered as a whole.” Zheng v. U.S. Att’y
Gen., 451 F.3d 1287, 1289 (11th Cir. 2006) (per curiam). Under the substantial
evidence test, we view the evidence and make all reasonable inferences in favor of
the agency’s decision. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir.
2006) (per curiam). We cannot reverse factual findings unless the record compels
it; “the mere fact that the record may support a contrary conclusion is not enough
to justify a reversal of the administrative findings.” Id. (quotation marks and
citation omitted).
A credibility determination is a factual finding reviewed under the
substantial evidence test. See id. In making a credibility finding, the trier of fact
should consider all the circumstances, including the “demeanor, candor, or
responsiveness of the applicant,” and the consistency between the applicant’s
written and oral statements. 8 U.S.C. § 1158(b)(1)(B)(iii). An alien’s testimony
need not be corroborated if credible. See Ruiz, 440 F.3d at 1255. “Conversely, an
adverse credibility determination alone may be sufficient to support the denial of
an asylum application” where the applicant does not produce evidence other than
his own testimony. Id. (quotation marks and citation omitted). The applicant
bears the burden of showing that an adverse credibility finding is not supported by
“specific, cogent reasons, or was not based on substantial evidence.” Id. (quotation
marks, alterations, and citation omitted).
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The evidence substantially supports the adverse credibility determination in
this case. The IJ and BIA enumerated several inconsistencies and omissions
concerning Li’s present claim for asylum. For example, Li testified at the asylum
hearing that the Chinese government persecuted him by trying to arrest him for
selling Falun Gong literature in a bookstore he owned. During his airport
interview on the day of arrival, however, Li never mentioned owning a bookstore
or selling Falun Gong materials. When asked what his occupation was, Li stated
only that he worked in a restaurant. Furthermore, in his asylum application, Li
stated that he was the owner/manager of a bookstore beginning in August 2004.
Yet Li testified at the hearing that he opened the bookstore in December 2004, and
then illogically stated that he helped sell books at the same store beginning in July
2004.
Another glaring inconsistency was Li’s espoused belief in Falun Gong and
his reason for selling the books. At the asylum hearing, Li testified that he
believed in Falun Gong because he accepted Falun Gong’s theory that people
should be “good” and “nice.” AR at 89. Li also claimed that he primarily sold the
books to support his friends who were Falun Gong followers. This testimony
directly conflicted with Li’s statements at his credible fear interview. Li admitted
at that time that “I don’t know what Falun Gong is. I don’t know what Falun Gong
followers believe in.” Id. at 110-111. Li also stated at his credible fear interview
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that he agreed to sell the Falun Gong books and fliers provided by his store partner
because he wanted to “make money.” Id. at 110.
The IJ also based his credibility determination on Li’s hesitation and
incomplete answers when asked to explain his conflicting statements. An
applicant’s demeanor and responsiveness are valid considerations in assessing
credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii). Given the numerous problems with
Li’s testimony, his failure to provide any corroborating evidence that he owned a
bookstore or sold Falun Gong fliers further undermined his claim of asylum. Li
testified that the police had confiscated all his personal documents. As the IJ
noted, however, there was no evidence that Li could not have obtained other forms
of documentation from his parents or wife, who still live in China. With no
evidence besides his discredited testimony, the IJ and BIA correctly concluded that
Li failed to show that he was entitled to asylum. See Ruiz, 440 F.3d at 1255.
None of Li’s arguments challenging the IJ’s credibility determination have
merit. Li contends that his asylum application’s statement that he owned/managed
a bookstore beginning in August 2004 was consistent with his hearing testimony
that he was initially the manager of the store in August 2004 and later became the
partner and owner in December 2004. Our review of the hearing transcript reveals
no such testimony, however. Li also misstates the record by asserting that the IJ
erred in using Li’s airport interview as the sole indicator of Li’s credibility. The
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IJ’s order expressly based the decision on consideration of all the exhibits entered
into evidence, which included Li’s asylum application, the credible fear interview,
the airport interview, and the 2005 country report for China. The BIA likewise
found that the IJ’s credibility determination was supported by the IJ’s finding of
discrepancies between Li’s testimony at the asylum hearing, his airport statement,
and his credible fear interview.
Equally baseless is Li’s contention that the airport customs officer was
vague and imprecise when questioning Li about his occupation. The officer simply
asked Li, “What is your occupation?” to which Li answered, “I worked in the
restaurant.” AR 114. Li never mentioned anything about working in a bookstore
even though that purportedly was his most recent occupation for the past several
months. In any event, Li had the opportunity to clarify his answer at the asylum
hearing. He testified at the hearing that he was referring to his job as a cook before
he opened the bookstore. When pressed as to why he never mentioned the
bookstore, however, Li responded evasively and ultimately failed to give any
explanation other than, “I don’t remember.” Id. at 95. The IJ’s rejection of this
explanation is supported by Li’s inconsistent answers.
Li also faults the IJ for considering his family’s continued residence in
China. Contrary to Li’s interpretation, the IJ did not assume that Li’s family had to
be persecuted in order for Li to establish a well-founded fear of future persecution.
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The fact that an applicant’s family remains unharmed in the country where the
applicant allegedly was persecuted may support an IJ’s credibility finding as to
whether an alien could avoid future persecution through relocation. See Ruiz, 440
F.3d at 1259 (affirming IJ’s adverse credibility finding where alien’s son and
parents lived unharmed in same Colombian region).
Finally, Li asserts that the IJ erroneously focused on whether Li sold the
books to make money or to support his Falun Gong beliefs. According to Li, his
motive for selling the books was irrelevant because the Chinese government treats
distributors of Falun Gong materials the same as practitioners. The IJ and BIA
considered Li’s inconsistent statements on this issue as indicative of his lack of
credibility, however. Thus, discussion of Li’s motive was relevant to the
credibility analysis.
III. CONCLUSION
In sum, the IJ and BIA provided specific, cogent reasons for discrediting
Li’s testimony. The record substantially supports these reasons and thus does not
compel reversal of the adverse credibility finding. Accordingly, we AFFIRM the
BIA’s judgment denying Li asylum. Because Li has not satisfied the less stringent
standard for asylum, he cannot demonstrate eligibility for withholding of removal
under the INA or CAT relief. See Zheng, 451 F.3d at 1292. We therefore
AFFIRM the BIA’s judgment as to those claims as well and DENY Li’s petition in
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full.
PETITION DENIED.
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