Wei Chen v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10745 SEPTEMBER 8, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________

BIA No. A98-940-171

WEI CHEN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(September 8, 2006)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
Wei Chen, a native and citizen of China, petitions for review of the Board of

Immigration Appeals’ (BIA) order affirming an Immigration Judge’s (IJ) decision

denying his application for asylum and withholding of removal under the

Immigration and Nationality Act (INA), 8 U.S.C. §§ 1158, 1231(b)(3), as amended

by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996) (amended by the REAL ID

Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (2005)).1 After review, we deny

Chen’s petition.

I. BACKGROUND

Chen, a native and citizen of China, entered the United States on June 4,

2005, without a valid entry document. The Department of Homeland Security

(DHS) issued Chen a Notice to Appear on June 8, 2005, charging him as an alien

removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for failure to possess a valid entry

document at the time he applied for admission. Chen conceded his removability,

but, on July 12, 2005, he applied for asylum and withholding of removal, alleging

1
Because Chen’s removal and asylum proceedings commenced after April 1, 1997, the
permanent provisions of IIRIRA govern his petition for review. The IJ also denied Chen’s
application for relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). On appeal,
Chen does not raise any challenge to the denial of relief under the CAT. Consequently, he has
abandoned that claim. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005).
2
past persecution and a well-founded fear of future persecution on account of his

involvement with the religious practice of Falun Gong.

Chen’s testimony at his removal hearing can be briefly summarized as

follows. Chen testified that he owned an internet bar and video rental store in

China. As he was familiar with computers, Chen said he began downloading

information on Falun Gong to CDs, which he then distributed to members of his

community. Chen testified that in January 2005, police officers came to his video

rental store and arrested him. The officers took him to a small place, where he was

detained and beaten for four days. Chen claimed he was released only when his

parents paid the police to free him. Following his release, Chen went into hiding in

the mountains, surviving on food and water from his parents. He testified that

during this time, he approached several timber workers and asked them to inform

his family of his whereabouts. Eventually, Chen was smuggled out of China to

Holland, Peru, and then the United States. When he entered this country in Miami,

Florida, Chen provided no identification to DHS officials. Chen testified that he

has not practiced Falun Gong since his arrival in the United States.

After summarizing Chen’s testimony at length, as well as the five exhibits he

proffered,2 the IJ denied all relief, concluding “[Chen] is not a credible witness.”

2
Chen offered his Notice to Appear, his asylum application, the 2004 U.S. Department of
State Country Report for China, notes from his credible fear interview, and identification
documents as exhibits.
3
The IJ referred to a number of inconsistencies and discrepancies between Chen’s

asylum application, his credible fear interview, and his testimony at the removal

hearing. In addition, the IJ recounted a number of implausibilities in Chen’s

narrative. The IJ also noted Chen’s evasiveness and lack of candor when

confronted with these inconsistencies, discrepancies, and implausibilities.

Chen appealed the IJ’s decision to the BIA. The BIA, however, dismissed

Chen’s appeal, holding “[t]he [IJ] provided a reasoned basis for finding [Chen] was

incredible” and emphasizing the implausible aspects of Chen’s story. Chen then

petitioned this Court for review of the IJ’s and BIA’s decisions.

II. DISCUSSION

Where the BIA issues a decision, we review that decision, except to the

extent that it expressly adopts the IJ’s opinion. See Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). Insofar as the BIA adopts the IJ’s reasoning, we

review the IJ’s decision as well. See Prado-Gonzalez v. INS, 75 F.3d 631, 632

(11th Cir. 1996). In this case, the BIA issued a decision in which it adopted the

IJ’s reasoning regarding Chen’s credibility without making additional findings.

We therefore review the IJ’s decision as if it were the BIA’s. See Al Najjar, 257

F.3d at 1284.

The IJ’s factual determinations, including credibility determinations, are

reviewed under a substantial evidence standard, which provides that “the IJ’s
4
decision can be reversed only if the evidence ‘compels’ a reasonable fact finder to

find otherwise.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir.

2005) (citations omitted); see also D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814,

818 (11th Cir. 2004) (noting “[c]redibility determinations are likewise reviewed

under the substantial evidence test”).

To be eligible for asylum, the applicant bears the burden of proving statutory

“refugee” status. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a). That is, the

alien must, with specific and credible evidence, establish (1) past persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion; or (2) a well-founded fear of future persecution on account of a

statutorily-protected ground. See 8 C.F.R. § 208.13(b).

If an alien’s testimony is credible, it may be sufficient, without

corroboration, to satisfy his burden of proof in establishing his eligibility for relief

from removal. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.

2005); 8 C.F.R. §§ 208.13(a), 208.16(b). An IJ’s denial of asylum relief, however,

can be supported solely by an adverse credibility determination, especially if the

alien fails to produce corroborating evidence. See Forgue, 401 F.3d at 1287. If the

IJ explicitly determines that the alien lacks credibility, the IJ must offer specific,

cogent reasons for the finding. Id. The burden then shifts to the alien to show that

5
the IJ’s credibility decision was not supported by “specific, cogent reasons” or was

not based on substantial evidence. Id.

In the REAL ID Act of 2005, Congress amended the law regarding

credibility determinations for applications for asylum and withholding of removal

filed after May 11, 2005.3 See Pub. L. No. 109-13, 119 Stat. 302, § 101(h)(2). As

8 U.S.C. § 1158(b)(1)(B)(iii) now reads:

Considering the totality of the circumstances, and all relevant factors,
a trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal
inconsistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the
Department of State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor. There is no
presumption of credibility, however, if no adverse credibility
determination is explicitly made, the applicant or witness shall have a
rebuttal presumption of credibility on appeal.

In this case, the IJ denied relief based on an express finding that “[Chen] is

not a credible witness, and he has failed to provide any evidence to support his

3
Because Chen’s application for asylum and withholding of removal was filed on July
12, 2005, the amendment effected by the REAL ID Act of 2005 applies in this case.
6
claim.”4 The IJ provided specific, cogent reasons for the adverse credibility

determination, citing a number of inconsistencies and discrepancies between

Chen’s asylum application, his credible fear interview, and his testimony at the

removal hearing. The IJ specifically referred to (1) a discrepancy between Chen’s

testimony at his removal hearing and credible fear interview about the number of

people with whom he practiced Falun Gong; (2) an inconsistency between Chen’s

asylum application and his testimony at the removal hearing as to whether he

practiced Falun Gong with family members; (3) a discrepancy between Chen’s

asylum application and his testimony at the removal hearing as to the date he

opened his internet bar; (4) a discrepancy between Chen’s asylum application and

his testimony at the removal hearing as to the length of time he owned the video

rental store; (5) an inconsistency between Chen’s testimony at the removal hearing

and his credible fear interview about where he downloaded Falun Gong materials,

namely whether it was at his store or at various homes; (6) a discrepancy of one

day between Chen’s asylum application, his credible fear interview, and his

testimony at the removal hearing as to the date he was arrested; (7) an

4
In his brief, Chen argues the merits of his claims for asylum and withholding of
removal. The IJ, however, did not reach the merits of Chen’s application, instead limiting his
discussion to Chen’s credibility. As a result, we are confined to reviewing the IJ’s adverse
credibility determination. See Gonzales v. Thomas, ___ U.S. ___, ___, 126 S. Ct. 1613, 1615
(2006) (holding federal courts are not entitled to pass judgment on issues the agency did not
address).
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inconsistency between Chen’s asylum application, his credible fear interview, and

his testimony at the removal hearing as to whether the authorities seized Falun

Gong CDs from his store at the time of the arrest; (8) an inconsistency between

Chen’s asylum application and his testimony at the removal hearing as to whether

his parents bribed authorities or paid bail for Chen’s release from prison; (9) an

inconsistency between Chen’s asylum application, his credible fear interview, and

his testimony at the removal hearing about whether Chen confessed, while he was

in custody, to practicing Falun Gong or distributing Falun Gong CDs; and (10) an

inconsistency in Chen’s testimony at the removal hearing as to whether he lacked

identification documents at the time of his entry into the United States, or whether

he had such documentation, refused to give it to the DHS, and mailed it to his

uncle. The IJ also noted Chen has not practiced Falun Gong after he arrived in the

United States.

The IJ found that when confronted with these inconsistencies, “[Chen] was

very evasive. He lacked candor in that even on direct examination he was vague.”

The IJ also referred to several implausibilities in Chen’s narrative. First, Chen

could not explain why his mother was not arrested, if, as Chen testified, his mother

was involved in Falun Gong, he used his parents’ computer to download Falun

Gong materials, and Falun Gong CDs were seized at his parents’ house. Second,

the IJ found implausible Chen’s fear of another arrest because (1) the authorities
8
released him; and (2) despite a purported fear of being caught, Chen approached

several strangers in the mountains and told them where he was hiding. “[Chen’s]

testimony simply is inherently implausible,” the IJ found, “and can not absent a

great deal of evidence support a claim to asylum.”

Because the IJ made an explicit adverse credibility determination, the burden

shifts to Chen to show the credibility finding is not supported by “specific, cogent

reasons” or was not based on substantial evidence. See Forgue, 401 F.3d at 1287.

To reiterate, “[a] credibility determination, like any fact finding, may not be

overturned unless the record compels it.” Id. (quotation omitted). Chen does not

argue the IJ’s finding was not supported by “specific, cogent reasons”; rather, he

asserts the finding is not supported by substantial evidence and, therefore, the

record compels a reversal of the IJ’s credibility determination. More specifically,

Chen characterizes the aforementioned inconsistencies and discrepancies as

“trivial” and “irrelevant to the dispositive issues,” and provides explanations for

the implausible aspects of his claim.

We hold the IJ’s specific, cogent reasons for making the adverse credibility

determination are supported by substantial evidence, and nothing in the record

would compel a reasonable fact finder to reverse the IJ’s finding. First, to the

extent Chen argues the inconsistencies and discrepancies are “trivial” and

“irrelevant to the dispositive issues,” he ignores the amendment to 8 U.S.C.
9
§ 1158(b)(1)(B)(iii), applicable in this case, which provides that in considering the

totality of the circumstances, the “trier of fact may base a credibility determination

on . . . any inaccuracies or falsehoods in [the applicant’s] statements, without

regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of

the applicant’s claim, or any other relevant factor” (emphasis added). Second,

while Chen’s explanations of the implausible aspects of his claim are tenable, we

cannot say, especially given the relative lack of corroborating evidence, that these

explanations would compel a reasonable fact finder to reverse the IJ’s credibility

determination. On this record, therefore, substantial evidence supports the IJ’s

conclusion that Chen was not credible. Accordingly, we deny Chen’s petition for

review.

PETITION DENIED.