United States Court of Appeals
For the First Circuit
No. 06-2166
JIAN PAN,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Selya and Cyr, Senior Circuit Judges.
Sara Sailan Yang and Yang & Sacchetti on brief for petitioner.
Peter D. Kessler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Genevieve Holm, Attorney, Office of Immigration
Litigation, on brief for respondent.
June 7, 2007
SELYA, Senior Circuit Judge. Claiming to be a religious
refugee from his native China, the petitioner, Jian Pan, sought
asylum, withholding of removal, or protection under the Convention
Against Torture (CAT). An Immigration Judge (IJ), finding that the
petitioner's religious persecution claim lacked both credibility
and substance, ordered his removal. The Board of Immigration
Appeals (BIA) summarily affirmed this ukase. The petitioner now
seeks judicial review. We deny the petition.
When and how the petitioner arrived in the United States
are hotly contested issues. It is clear, however, that he was here
on May 28, 2002, when he initially applied for asylum. He alleged
the following facts.
On July 20, 2001, four policemen forcibly entered a
private residence in Changle, China, where the petitioner, his
father, and other persons were participating in a peaceful
Christian "home church" gathering. The officers questioned the
petitioner with respect to his membership in the home church and
its connection to a "Taiwan anti[-]government group." Fourteen
people, including the petitioner and his father, were detained at
the local police station. There, the police interrogated the
petitioner; angered by his responses one officer slapped his face,
kicked him from his stool, and beat him with a baton. On the third
of his eleven days in detention, the police handcuffed him to a
-2-
pole behind the station house and forced him to stand overnight in
the rain. His mother eventually posted bail to secure his release.
The petitioner claims to have fled from China on August
26, 2001, with the assistance of a snakehead (a professional
smuggler). He says that he left in the nick of time; shortly after
his departure, Chinese authorities consigned both his father and
the host of the home church to a labor camp. According to his
account, he arrived in the United States on August 28, 2001, and
entered illegally.
The next material development occurred nine months later,
when the petitioner self-reported to immigration authorities and
sought asylum. On August 1, 2002, the former Immigration and
Naturalization Service conducted an asylum interview. The
interviewer (whom we shall refer to as the asylum officer) found
that the petitioner was not credible, that both his chronology of
events and his account of what had transpired were flawed, and that
he had failed to show that his application for asylum was filed
within one year of his arrival in the United States (as required by
law). The asylum officer then referred the matter to the
Immigration Court for the institution of removal proceedings.
The petitioner, who had traveled to the United States on
a fraudulent passport, conceded removability. At the same time, he
cross-applied for asylum, withholding of removal, or relief under
the CAT. Following a series of evidentiary hearings, the IJ
-3-
concluded that the petitioner had failed to carry the devoir of
persuasion on any of his three claims for relief. The IJ's
conclusion flowed in large measure from an adverse credibility
determination. In that regard, the IJ zeroed in on a number of
discrepancies in the petitioner's tale.
First, she noted that the petitioner had given
conflicting accounts anent a taxi receipt introduced in the hope of
showing his presence in China on August 26, 2001 (a date within the
one-year eligibility period). Specifically, the petitioner
testified before the IJ that he had carried the receipt out of
China himself, whereas he had told the asylum officer that his
mother had mailed the receipt to him from China some time after his
arrival in the United States.
Second, the IJ found that the petitioner's testimony
regarding the manner of his entry into and travel about the United
States was wildly inconsistent. Before the IJ, the petitioner
testified that he flew from Shanghai to Vancouver to Toronto; from
there, he took a boat to the New York border. When asked for
particulars, he replied that he had traveled by speedboat for five
or ten minutes and then by car for approximately six hours to reach
New York City's Chinatown district. In his asylum interview,
however, the petitioner recounted that he had traveled six hours by
boat from Toronto to an island in the middle of a lake and, from
there, had traveled six more hours by boat to New York City.
-4-
Third, the IJ faulted the petitioner's testimony
regarding the medium of travel on the next leg of his sojourn. The
petitioner testified before the IJ that he had been driven in a
small passenger car by a friend of his snakehead from New York to
Los Angeles. This was at odds with what he had told the asylum
officer: that he had traveled by truck between those two points.
Fourth, the IJ found that the petitioner's testimony as
to how he had come into possession of various documents lacked
coherence (and, thus, lacked reliability). The IJ specifically
mentioned the petitioner's bank book, his outpatient medical
records, and a police summons. The petitioner explained before the
IJ that a mysterious individual named "May" — a California resident
whose gender is obscure and whom the petitioner could not identify
further — had gone to China and brought back the bank book, medical
records, and summons at his request. He had told the asylum
officer, however, that his mother had mailed those documents to
him.
Finally, the IJ found inherently inconsistent the
petitioner's accounts of his alleged arrest in China. Relatedly,
she noted that the petitioner had failed to offer any corroboration
of the claim that he had been arrested.1 Although careful to note
1
The petitioner did submit two purported bail receipts in an
effort to show that his mother had paid to get him and his father
released from detention. But these documents were not properly
authenticated, see 8 C.F.R. § 287.6(b), and the IJ expressed grave
doubt about their provenance. In the circumstances of this case,
-5-
that corroborative evidence is not essential to the successful
prosecution of an application for asylum, the IJ found this lack of
corroboration particularly detrimental to the petitioner's
credibility and claim.
Having made an adverse credibility determination, the IJ
proceeded to find that the petitioner had not established that his
application for asylum was timely. She rejected the asylum claim
on that basis. As alternative grounds for her decision, the IJ
found that, even assuming the truth of the petitioner's testimony,
(i) there was insufficient evidence demonstrating that any
persecution on account of a protected ground had occurred and (ii)
that the petitioner had failed to show that he had an objectively
reasonable fear of future persecution should he be returned to
China. In reaching these conclusions, the IJ relied heavily on the
State Department's Country Report on Human Rights Practices in
China for 2003 (the 2003 Country Report). Pertinently, the IJ
noted that, while the petitioner had stated that he did not want to
register as a Christian with the Chinese government because of
likely repercussions, the 2003 Country Report indicated that
Christians returning to China should not be adversely affected by
their religious preference.2
the IJ was entitled to give them little weight.
2
Indeed, the 2003 Country Report explained that, in many areas
of China, home or family churches were tolerated as long as their
membership remained small and their activities discrete.
-6-
Consistent with these determinations, the IJ ordered
removal and denied the petitioner's cross-application for asylum,
withholding of removal, or relief under the CAT. The BIA summarily
affirmed. This timely petition for judicial review followed.
Where, as here, the BIA has summarily affirmed an IJ's
decision, we review the IJ's decision "as if it were the decision
of the BIA." Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005).
In this instance, the IJ found that the petitioner had not made an
adequate showing of timeliness and, thus, was not eligible for
asylum. The petitioner seeks to revisit that determination here.
This effort is unavailing. To qualify for asylum, an
alien ordinarily must "demonstrate[] by clear and convincing
evidence" that his asylum application was filed within one year of
his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).3 In
this case, the petitioner first filed for asylum on May 28, 2002.
Thus, he had to prove by clear and convincing evidence that he had
first arrived in the United States no earlier than May 29, 2001.
The IJ held that the petitioner had failed in this endeavor.
We are bound by that holding. Congress carefully
circumscribed the scope of judicial review with respect to
3
An asylum application filed beyond this one-year window may
nonetheless be considered if the alien can show changed or
extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(D). Because
the petitioner has not asserted the existence of changed or
extraordinary circumstances sufficient to justify an untimely
asylum application, we need not sculpt the contours of this
exception.
-7-
timeliness determinations in asylum cases. The relevant statute
provides that "[n]o court shall have jurisdiction to review any
determination of the Attorney General" concerning, inter alia,
whether an asylum applicant has complied with the one-year filing
deadline. Id. § 1158(a)(3).
This jurisdiction-stripping provision applies foursquare
in the case at hand. Citing a dearth of credible evidence, the IJ
found that it was at best "unclear" whether the petitioner had
filed a timely asylum application. This was merely another way of
saying that the petitioner had not clearly and convincingly
demonstrated timeliness. Because the IJ found as a matter of fact
that the petitioner had failed to prove timeliness and the BIA
upheld that finding, we lack jurisdiction to review the
petitioner's eligibility for asylum. See id.; see also Sharari v.
Gonzales, 407 F.3d 467, 473 (1st Cir. 2005); Njenga v. Ashcroft,
386 F.3d 335, 339 (1st Cir. 2004).
The petitioner strives to avoid this jurisdictional bar
by relying on another statute, which provides that "[n]othing in .
. . this chapter . . . which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this section." 8
U.S.C. § 1252(a)(2)(D). That reliance is misplaced. To trigger
our jurisdiction, the putative constitutional or legal challenge
-8-
must be more than a disguised challenge to factual findings. The
underlying constitutional or legal question must be colorable; that
is, the argument advanced must, at the very least, have some
potential validity. See Mehilli v. Gonzales, 433 F.3d 86, 93-94
(1st Cir. 2005); Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th
Cir. 2001). Here, the petitioner's claim of legal error is nothing
more than a thinly-veiled challenge to the IJ's factfinding and,
thus, impuissant as a means of restoring our jurisdiction. We
explain briefly.
The petitioner's "legal error" claim is that the IJ
applied an unduly high or strict standard of proof to the
timeliness determination. See Petitioner's Br. at 6. That claim
is entirely conclusory; there is no sign that the IJ applied the
wrong standard.
We add, moreover, that section 1158(a)(2)(B) requires
that an alien demonstrate "by clear and convincing evidence" that
his application for asylum was filed within the one-year window.
It follows that the burden of proof for satisfying the temporal
element of an asylum application is considerably "higher" or
"stricter" than that required for satisfying the substantive
elements of an asylum application.4 Thus, to say without
4
To make out the substantive elements of such a claim, an
alien need only show a reasonable possibility that, if removed to
his homeland, he will be persecuted on account of a protected
ground. See INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987);
Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999).
-9-
elaboration (as does the petitioner) that the IJ applied an
unusually high or strict standard of proof on timeliness amounts to
nothing more than saying that the IJ honored the command of the
controlling statute. Seen in this light, the petitioner's claim of
legal error is obviously incorrect and, thus, not colorable.
Of course, there is another way to look at the
petitioner's claim; he may be saying, on the bottom line, that the
IJ simply got the facts wrong. If this is so, the claim is no more
than a factual claim masquerading as a legal challenge. If the
cynical use of that sort of costumery could defeat the operation of
the jurisdiction-stripping provision, then the provision would be
rendered meaningless. We refuse to go down so wayward a path.5
Accord Arias v. U.S. Att'y Gen., 482 F.3d 1281, 1284 (11th Cir.
2007); De Araujo v. Gonzales, 457 F.3d 146, 154 (1st Cir. 2006);
Mehilli, 433 F.3d at 94.
The short of it is that the petitioner has put forth no
colorable legal claim vis-à-vis the IJ's timeliness determination.
Consequently, we lack jurisdiction to review the denial of the
petitioner's asylum claim. See 8 U.S.C. § 1158(a)(3).
5
To the extent that the petitioner asserts that the record
shows clearly and convincingly that he timely filed his asylum
application, that assertion is subject to the same infirmity. The
assertion is a factual one: refined to bare essence, it asks us to
consider whether the IJ's contrary determination is supported by
the evidence.
-10-
This is not the end of the matter because there are no
similar temporal or jurisdictional barriers to judicial review of
the denial of the petitioner's other claims for relief. We turn,
then, to his withholding of removal claim.
The IJ did not deal specifically with this claim.
Withal, the asylum and withholding of removal analyses are
sufficiently analogous that we may treat the IJ's findings of raw
fact on the asylum claim as transferable in large part to the
withholding of removal claim. Cf. Wine & Spirits Retailers, Inc.
v. Rhode Island, 481 F.3d 1, 7 (1st Cir. 2007) (acknowledging that
"a trial court's findings of fact, made in connection with one
legal theory, may often be treated as fungible in connection with
another").
We review findings of fact in immigration proceedings
only to determine whether those findings are supported by
substantial evidence in the record. Bocova v. Gonzales, 412 F.3d
257, 262 (1st Cir. 2005). In other words, we accept an IJ's
findings of fact, including credibility determinations, as long as
they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Id. (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). We will embrace a
finding unless the evidence "points unerringly in the opposite
direction." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004).
Rulings of law engender de novo review, but with some deference to
-11-
the agency's reasonable interpretation of statutes and regulations
that fall within its purview. See Bocova, 412 F.3d at 262; see
also Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467
U.S. 837, 843-44 (1984).
To qualify for withholding of removal, an alien must show
that, more likely than not, he faces persecution on account of one
of five protected grounds, namely, race, religion, nationality,
membership in a particular social group, or political opinion,
should he return to his homeland. See 8 U.S.C. § 1101(a)(42); 8
C.F.R. § 208.16(b)(2); see also Da Silva v. Ashcroft, 394 F.3d 1,
4 (1st Cir. 2005). This "more likely than not" standard is harder
for an alien to satisfy than the "reasonable possibility" standard
for showing a well-founded fear of future persecution in asylum
cases. See INS v. Stevic, 467 U.S. 407, 429-30 (1984); Makhoul v.
Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004).
An alien's credible testimony, standing alone, may
sustain his burden of proving eligibility for withholding of
removal. See Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.
2004). But evidence that the factfinder supportably characterizes
as incredible may be either disregarded or discounted. See
Laurent, 359 F.3d at 64. Accordingly, an adverse credibility
determination can prove fatal to a claim for either asylum or
withholding of removal. See, e.g., Stroni v. Gonzales, 454 F.3d
-12-
82, 89 (1st Cir. 2006); Nikilujuw v. Gonzales, 427 F.3d 115, 121
(1st Cir. 2005).
This is such a case. In itself, the IJ's adverse
credibility determination suffices to defeat the withholding of
removal claim.
Faced with that reality, the petitioner exhorts us to set
aside that determination. He argues that an adverse credibility
determination cannot rest on trivia but, rather, must rest on
discrepancies that involve matters of consequence. See Mewengkang
v. Gonzales, ___ F.3d ___, ___ (1st Cir. 2007) [No. 06-1976, slip
op. at 4-5]; Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.
1999). The petitioner's premise is sound but the conclusion that
he seeks to have us draw from it does not follow.
We have outlined the anatomy of the IJ's adverse
credibility determination earlier in this opinion. The IJ did not
deal in broad generalizations but relied on a specific and well-
articulated litany of identified inconsistencies in the
petitioner's story. Those inconsistencies involve matters
important to the petitioner's claims for relief, such as the
circumstances of his alleged detention, when he was last in China,
and the date and manner of his arrival in the United States. The
petitioner provided conflicting accounts of his journey to the
United States; he failed to describe consistently the mode and
manner of his cross-country trip from New York to Los Angeles; and
-13-
he told different stories at different times about the origins of
the various documents that he introduced during the hearings. What
is more, a letter from the petitioner's father undermined the
petitioner's claim that his father had been hauled away to a labor
camp.
Some of these inconsistencies, in isolation, may seem
like small potatoes. What counts, however, is that their
cumulative effect is great. Cf. Bourjaily v. United States, 483
U.S. 171, 179-80 (1987) (acknowledging that the "sum of an
evidentiary presentation may well be greater than its constituent
parts").
The petitioner also notes that several of the
inconsistencies mentioned by the IJ arise by comparison of the
petitioner's statements at the hearings to his (quite different)
statements to the asylum officer. Before the IJ, the petitioner
sought to minimize these discrepancies by claiming, in effect, that
the asylum officer got it wrong. Any argument that the IJ erred in
rejecting that claim is hopeless; the report of the asylum
interview enjoys a presumption of regularity, and the IJ was
entitled to treat that report as accurate. See Abdulai v.
Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001).
To continue in this vein would serve no useful purpose.
We conclude, without serious question, that the adverse credibility
determination is supported by substantial evidence in the record.
-14-
The petitioner next suggests that other evidence in the
record, not affected by the adverse credibility determination,
compels a conclusion that his fear of religious persecution is
well-founded. That suggestion lacks merit. The record, shorn of
the petitioner's testimony, cannot carry the weight that the
petitioner seeks to load upon it.
The petitioner's main argument in this regard is that the
IJ erred in failing to consider some documents and in misreading
others. This argument is jejune. Although an IJ may not simply
ignore substantial testimonial and documentary proof, she need not
discuss ad nauseum every piece of evidence. See Mihaylov v.
Ashcroft, 379 F.3d 15, 22 (1st Cir. 2004). So long as the IJ has
given reasoned consideration to the evidence as a whole, made
supportable findings, and adequately explained her reasoning, no
more is exigible. See Martinez v. INS, 970 F.2d 973, 975 (1st Cir.
1992).6
The petitioner also asseverates that the 2003 Country
Report describes his native province as particularly intolerant of
home churches. To the extent that it is true, this asseveration
6
The petitioner complains with especial acrimony about the
IJ's reliance on an unfavorable passage contained in the 2003
Country Report. In the petitioner's view, the IJ should have
emphasized instead a more favorable passage. In such matters,
however, we defer to the factfinder's reasonable choices from
conflicting evidence. See Martinez, 970 F.2d at 975; cf. United
States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990) (stating that the
factfinder's choice among plausible but conflicting inferences
cannot be clearly erroneous).
-15-
misses the mark. Withholding of removal is not in order when a
refugee may safely relocate within his native land. See, e.g., Da
Silva, 394 F.3d at 7; see also 8 C.F.R. § 208.16(b)(2). There is
no requirement that he be able to relocate to a particular province
or village.
This leaves only the petitioner's claim under the CAT.
That claim need not detain us because the petitioner has made no
reasoned argument to support it. We long have held that legal
theories advanced in skeletal form, unaccompanied by some developed
argumentation, are deemed abandoned. See, e.g., Jiang v. Gonzales,
474 F.3d 25, 32 (1st Cir. 2007); United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990). So it is here.
We summarize succinctly. In the circumstances of this
case, we lack jurisdiction to review the rejection of the
petitioner's asylum claim. The denial of the petitioner's claim
for withholding of removal is supported by substantial evidence in
the record. Last — and in this instance least — the petitioner's
CAT claim has been abandoned. We need go no further.
The petition for judicial review is denied.
-16-
Pan v. Gonzales
Court: Court of Appeals for the First Circuit
Date filed: 2007-06-07
Citations: 489 F.3d 80
Copy Citations