Xue Deng Jiang v. Gonzales

United States Court of Appeals
For the First Circuit

No. 06-1649

XUE DENG JIANG,

Petitioner,

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Torruella, Selya, and Howard,
Circuit Judges.

Gary J. Yerman on brief for petitioner.
Peter Keisler, Assistant Attorney General, Civil Division,
Greg D. Mack, Senior Litigation Counsel, and Robbin K. Blaya,
Attorney, Office of Immigration Litigation, on brief for
respondent.

January 23, 2007
 SELYA, Circuit Judge. The petitioner, Xue Deng Jiang,

seeks judicial review of a decision of the Board of Immigration

Appeals (BIA), which affirmed an order denying his application for

asylum, withholding of removal, or relief under the Convention

Against Torture (CAT). The petitioner claims that an adverse

credibility determination is not supported by substantial evidence

in the record and that the BIA erred in holding that he was not

entitled to relief. Concluding, as we do, that the BIA's decision

is sustainable without regard to the disputed credibility

determination, we deny the petition for review.

The facts are relatively uncomplicated. The petitioner,

a 25-year-old native and citizen of the People's Republic of China,

arrived in the United States on November 4, 2003, without valid

entry documentation. The authorities immediately detained him.

Because he claimed to have been a victim of religious persecution

in China, an immigration officer conducted an interview to assess

his eligibility for asylum.

The petitioner told the interviewer that he had lived in

Yutou Village with his parents who, like the petitioner, are

practicing Catholics. He explained, albeit without specifying a

date, that he had attended a gathering of Catholic youths; that the

local police had interrupted the gathering and attempted to arrest

a Catholic priest who was in attendance; and that the petitioner

helped the priest escape.

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 Fearing the consequences, the petitioner left the village

and traveled approximately an hour to his aunt's residence in

Fuzhou City. When he arrived, he heard that the police had visited

his parents' abode in an effort to locate him. The petitioner

never returned home and eventually made his way to the United

States.

The petitioner told the immigration officer of his fear

that, should he return to China, the police would arrest him, beat

him, and make him reveal the priest's hiding place. He said that

the police had told his mother (falsely) that he had assaulted a

police officer, and that they threatened to shoot him if they were

able to run him to ground.

The interviewer referred the petitioner to the

Immigration Court, and he entered removal proceedings on November

12, 2003. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). He conceded

removability and cross-petitioned for asylum, withholding of

removal, or protection under the CAT.

On his asylum application, filed May 11, 2004, the

petitioner again described the events leading up to his departure

from China. He added that these events occurred in July of 2001,

and that the police had disrupted the gathering because it was an

outgrowth of an "illegal church." He made no mention of any threat

to shoot him but instead claimed that the police told his mother

that if he did not "hand over the priest," he would be imprisoned.

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 An immigration judge (IJ) convened a hearing on May 12,

2005. During the hearing, the petitioner largely recapitulated the

substance of his original asylum interview. He also claimed, for

the first time, that the police arrested and interrogated his

parents in an endeavor to learn his whereabouts. When asked why he

had not mentioned his parents' arrest at any earlier time, he

explained that he had not given "a lot of detailed information" in

either the asylum interview or the asylum application.

On cross-examination, the petitioner reiterated that the

police had threatened to shoot him if he did not betray the priest.

When asked why he had omitted any mention of this threat from his

asylum application, he explained that he had not learned about it

until August of 2004. The cross-examiner quickly defenestrated

this explanation, pointing out that the petitioner had first

alluded to the threat of shooting in November of 2003. The

petitioner thereupon reversed his field and admitted that he knew

of the threat earlier; he asserted, however, that he was unsure

whether the threat actually had been made until an August 2004

conversation with his parents.

In addition to his own testimony, the petitioner

presented an affidavit signed by his father and a declaration

signed by his parish priest in China.1 These documents

1
This declaration has some of the characteristics of an
affidavit. It also contains sacramental history, apparently drawn
from the parish's records. Nothing turns on how we label the

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corroborated bits and pieces of the petitioner's story,

particularly his status as a practicing Catholic and the happenings

leading up to his abrupt departure from Yutou Village. However,

neither document clarified the inconsistencies in the petitioner's

account, such as whether the police had threatened his life or

whether they had arrested his parents.

The proffer proved to be an exercise in futility. The IJ

excluded the two documents on the ground that neither was properly

authenticated in accordance with 8 C.F.R. § 287.6(b).

After hearing the evidence, the IJ noted that the

petitioner had embellished his trial testimony by adding important

information that was inexplicably omitted from his earlier

statements. The IJ also noted the absence of any corroboration

that any of this had ever happened. He proceeded to find the

petitioner's testimony incredible. Having made this adverse

credibility determination, the IJ concluded that the petitioner had

failed to carry his burden of establishing a well-founded fear of

persecution and, thus, had failed to show an entitlement to the

requested relief.

On appeal, the BIA affirmed the IJ's ukase. It did not

mention the IJ's exclusion of the affidavit and the declaration.

Rather, in apparent disregard of that ruling, the BIA scrutinized

the affidavit of the petitioner's father and concluded that it

document.

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offered no corroboration of either the parents' alleged arrest or

the supposed threat that the petitioner would be shot. Emphasizing

these shortcomings, the BIA upheld the IJ's adverse credibility

determination and, thus, the IJ's rejection of the petitioner's

application for relief. The BIA held, in the alternative, that

even if the petitioner's testimony was deemed credible, he had not

made out a case for asylum or other redress. That decision

precipitated the filing of this timely petition for judicial

review.

The petitioner's argument is two-tiered: he maintains

that the adverse credibility determination is not supported by

substantial evidence and that, once his testimony is deemed

credible, the record compels a finding of a well-founded fear of

persecution (and, therefore, an entitlement to relief). We address

the two halves of this argument separately.

We begin with the adverse credibility determination.

This court reviews findings of fact in immigration proceedings,

including findings with respect to credibility, to determine

whether those findings are supported by substantial evidence in the

record. Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005).

Under that standard, an adverse credibility determination may stand

if it is "supported by reasonable, substantial, and probative

evidence on the record considered as a whole." 8 U.S.C. §

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1252(b)(7)(B)(i); see Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st

Cir. 1999).

Here, the petitioner argues that there is insufficient

grounding for an adverse credibility determination. The record,

however, reveals three separate articulated justifications for that

determination. Taken as a whole, they comprise the platform on

which the BIA's determination rests.2

First, the BIA observed that the petitioner's claim

concerning his parents' arrest was of recent vintage and appeared

to have been manufactured. That claim was not made either in the

petitioner's asylum interview or his asylum application but

surfaced only during his trial testimony.3 The petitioner's

counter is not convincing; he glosses over the interview, says that

there was limited space available on the asylum application, and

argues that the BIA should have excused this discrepancy on that

basis.

2
The IJ based the adverse credibility determination partially
on a finding that the petitioner had not disclosed "any of the
information that he testified to concerning his encounter with the
police" either on his asylum application or during his initial
asylum interview. From a literal standpoint, this finding was
inaccurate; both the asylum application and transcript of the
interview discussed the incident that allegedly occurred in July of
2001.
3
Both the petitioner and the BIA characterized this
discrepancy as an omission. It could equally well be characterized
as an inconsistent statement inasmuch as the petitioner denied on
his application that he or any family member had ever been arrested
outside the United States.

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 This argument trenches on the frivolous. For one thing,

the petitioner attached a two-page letter to his asylum

application, thus exhibiting that he knew how to create space to

include additional information. For another thing, even if the BIA

could have reasoned as the petitioner advocates, it was not

compelled to do so. See Tai v. Gonzales, 423 F.3d 1, 5 (1st Cir.

2005). Where there are two plausible but conflicting views of the

evidence, the BIA's choice between them cannot be found to be

unsupported by substantial evidence.

The second pillar that the BIA used to undergird the

adverse credibility determination relates to the petitioner's

testimony that the police threatened to shoot him if he did not

surrender the priest. The BIA stressed that the petitioner had

neglected to mention this threat on his asylum application. The

petitioner initially attempted to explain the omission by claiming

that he did not learn of this incident until August of 2004. When

adroit cross-examination cut the ground from under that canard, he

then switched gears and averred that he was unsure of the accuracy

of what he had heard until August of 2004. Obviously, the BIA was

under no obligation to credit a self-serving and wholly

uncorroborated explanation that followed hard on the heels of an

earlier lie.

In a related vein, the petitioner suggests that these and

other inconsistencies identified by the BIA are trifling. He

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reminds us that an adverse credibility determination "cannot rest

on trivia but must be based on discrepancies that involved the

heart of the asylum claim." Bojorques-Villanueva v. INS, 194 F.3d

14, 16 (1st Cir. 1999) (citation and internal quotation marks

omitted). The problem here is that the petitioner's conclusion

does not follow from his premise: the critical inconsistencies in

this case (e.g., what, if any, threats were made) are central to

the petitioner's claims.

Third, the BIA concluded that the absence of

corroboration undermined the petitioner's credibility. The

petitioner's rejoinder is that the IJ erroneously excluded

corroborating material, such as the affidavit from his father and

the declaration from his parish priest. We examine this rejoinder.

The IJ predicated the exclusionary ruling on 8 C.F.R. §

287.6(b), which provides a detailed procedure for the

authentication of foreign official records for use in immigration

proceedings.4 The petitioner argues that the documents at issue in

this case are not official records and, thus, do not fall within

the ambit of the regulation. By its plain terms, the regulation

applies only to foreign official records and not to all documents

4
The regulation contains separate procedural requirements for
records emanating from countries that are signatory to the Hague
Convention and those emanating from non-signatory nations. Compare
8 C.F.R. § 287.6(c) with id. § 287.6(b). China is a non-signatory
nation. See Fed. R. Civ. P. 44, app. (2005). Thus, subsection (b)
pertains.

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emanating from foreign sources. Courts have interpreted the

regulation accordingly. See Cao He Ling v. U.S. Dep't of Justice,

428 F.3d 391, 405-06 (2d Cir. 2005). Because the father's

affidavit is not by any stretch of the imagination an official

record, the IJ erred in excluding it on this basis.

Less clear is whether the priest's declaration may come

within the compass of the regulation. The term "official record"

would most naturally appear to mean a government record — and there

is nothing to indicate that the declaration satisfies that

criterion. Some courts, however, have read 8 C.F.R. § 287.6 to

include records kept in the ordinary course of business, over and

beyond governmental records. See, e.g., Shah v. Attorney General,

446 F.3d 429, 433 (3d Cir. 2006) (employment identification card);

Sviridov v. Ashcroft, 358 F.3d 722, 728 (10th Cir. 2004) (medical

record). The priest's declaration appears to be, in part, such a

record; it carries an ecclesiastical seal and chronicles the

petitioner's religious history. But the document also contains a

narrative statement, which appears to be the parish priest's

account of the circumstances surrounding the petitioner's encounter

with the authorities in July of 2001. Even those courts that have

extended the reach of the regulation have not suggested that

something like the declaration, which seems to be a mish-mash of

information kept in the church's records and the parish priest's

own version of the July 2001 incident, would qualify. Cf. Shah,

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449 F.3d at 433 (indicating newspaper article is not an official

record). We hold, therefore, that this document was also

improperly excluded under 8 C.F.R. § 287.6.

We add, moreover, that even if either or both of these

documents were "official records" within the meaning of 8 C.F.R. §

287.6, the regulation offers only a method — not the exclusive

method — for authenticating a record in an asylum case. Circuit

courts, including this one, have stated that noncompliance with the

punctilio of 8 C.F.R. § 287.6 is not an absolute bar to the

admissibility of a foreign document in an asylum hearing. See,

e.g., Cao He Ling, 428 F.3d at 404; Gui Cun Liu v. Ashcroft, 372

F.3d 529, 532 (3d Cir. 2004); Yongo v. INS, 355 F.3d 27, 31 (1st

Cir. 2003). While an IJ certainly can take into account the method

of authentication in assessing a document's admissibility,

reliability, and weight, the IJ in this case rejected the documents

solely because they were not authenticated in strict conformity

with the regulation. That was error.

As matters turn out, we need not determine the effect of

this error.5 The BIA offered an alternative ground of decision: it

held that, even were the petitioner's testimony credible, he

5
It may well be that the error was harmless. Notwithstanding
the IJ's ruling, the BIA considered the documents (or, at least,
the father's affidavit) in passing upon the case. Moreover, the
documents, fairly read, fail to corroborate the claims that are of
paramount concern here (for example, there is no mention in the
father's affidavit of his or his wife's arrest).

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nonetheless failed to prove an entitlement to any relief. As we

explain below, that alternative ground — which is unaffected by the

erroneous evidentiary ruling — merits our approbation.

An asylum-seeker bears the burden of proving that he is

a refugee within the meaning of the immigration laws. See Olujoke,

411 F.3d at 21. A "refugee" is a person who cannot or will not

return to his country of nationality "because of persecution or

well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion." 8 U.S.C. § 1101(a)(42)(A). Fear of future persecution

must be both objectively and subjectively reasonable. See Ang v.

Gonzales, 430 F.3d 50, 57 (1st Cir. 2005). "That is to say, the

asylum applicant's fear must be both genuine and objectively

reasonable." Aguilar-Solis, 168 F.3d at 572. A court can set

aside the BIA's resolution of such an issue only if the record

indicates that "any reasonable adjudicator would be compelled to

conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

Here, the petitioner contends that a series of

occurrences — most conspicuously, the false accusation against him,

the need to flee, the officers' threats, and his parents' arrest —

lends credence to his fear of future persecution should he return

to China.6 The BIA found, however, that even if the petitioner

6
The petitioner could have argued that these events
constituted past persecution, proof of which would entitle him to
a rebuttable presumption of future persecution. See, e.g., Orelien

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testified truthfully, the evidence (including the documentary

evidence) did not rise to the level needed to show a well-founded

fear of future persecution on account of a protected ground.

What constitutes "persecution" is not statutorily defined

in the asylum context. We have recognized that "it is in the first

instance the prerogative of the Attorney General, acting through

the BIA, to give content to [that term]." Topalli v. Gonzales, 417

F.3d 128, 132 (1st Cir. 2005). The BIA has eschewed generic rules

for determining the incidence vel non of persecution, preferring

instead to proceed on a case-by-case basis. See Orelien v.

Gonzales, 467 F.3d 67, 71 (1st Cir. 2006). Courts typically defer

to the BIA's view as to the existence or nonexistence of

persecution in a given situation "unless that view amounts to an

unreasonable reading of the statute or inexplicably departs from

the BIA's earlier pronouncements." Id.

Despite the case-specific nature of the BIA's approach,

decisional law has yielded a number of principles that have

relatively broad applicability. We have acknowledged, for example,

that persecution "requires that the totality of the petitioner's

experiences add up to more than mere discomfiture, unpleasantness,

harassment, or unfair treatment." Nikijuluw v. Gonzales, 427 F.3d

v. Gonzales, 467 F.3d 67, 71 (1st Cir. 2006). Withal, he has
abjured any such claim. He argues only that these incidents
demonstrate a well-founded fear of future persecution. While this
strategic choice dictates our mode of analysis, it does not affect
the result that we reach.

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115, 120 (1st Cir. 2005). We also have acknowledged that,

typically, persecution will manifest itself through a series of

events rather than being confined to an isolated incident. See

Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005).

In this instance, the BIA noted the vagueness of the

petitioner's claim that Chinese authorities continued to hunt for

him. It also noted that the petitioner had proffered no

corroboration of this claim. Those observations are trenchant.

Although the petitioner claimed (without any first-hand knowledge)

that the police were still looking for him and that he would be

arrested if he returned to China, those suppositions are totally

unsupported; the record (including the disputed affidavit and

declaration) contains no hard evidence that the police inquired as

to the petitioner's whereabouts at any time after 2001. Then, too,

the petitioner's claim was undermined by the fact that his parents,

themselves practicing Catholics, continue to live in Yutou Village

without discernible harassment of any kind. See Zheng v. Gonzales,

416 F.3d 97, 101 (1st Cir. 2005) (explaining that evidence of other

members of the persecuted group living peacefully in their home

country may undermine an alien's claim of persecution); Aguilar-

Solis, 168 F.3d at 573 (similar). Finally, what evidence there is

suggests that the petitioner's troubles in 2001 may have been

related more to his own conduct in helping a wanted man to escape

from the law and less to his religion as such. Cf. Silva v.

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Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005) (holding that an asylum-

seeker must establish a causal link between one of the five

protected categories and the alleged acts of persecution). Given

the nature and extent of the evidence, we find fully supportable

the BIA's conclusion that the petitioner did not carry his burden

of proving a well-founded fear of future persecution.

Let us be perfectly clear. By any standard, the

petitioner's account presents an unfortunate and doubtless

unpleasant picture. At bottom, however, his claim of future

persecution boils down to the sequela of a single incident that

took place five years ago. Even if we credit his statements

describing ongoing police interest in that incident, those

statements are for the most part predicated upon second-hand

information. Assuming an alien's credibility does not mean blindly

assuming the credibility of his sources of information. See

Nyonzele v. INS, 83 F.3d 975, 983 (8th Cir. 1998) (stating that

even after assuming an alien's testimony is credible, "skeletal

secondhand information [contained therein] will not satisfy the

burden to demonstrate a well-founded fear [of persecution]").

In short, even if the petitioner testified truthfully,

the BIA, on this chiaroscuro record, was amply justified in

concluding both that the incident which took place in July of 2001

was an isolated event and that no reasonable prospect of future

persecution remained. Thus, the record did not compel the BIA to

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find that the petitioner had carried his burden of persuasion.

See, e.g., Topalli, 417 F.3d at 132 (upholding a finding that

multiple arrests, detentions, and beatings were isolated incidents

and "not part of systematic maltreatment rising to the level of

persecution"); Bocova v. Gonzales, 412 F.3d 257, 264 (1st Cir.

2005) (upholding a finding of no persecution where petitioner was

arrested, beaten, and threatened with death); Nelson v. INS, 232

F.3d 258, 264 (1st Cir. 2000) (upholding a finding of no

persecution where petitioner, on three occasions, was placed in

solitary confinement and beaten, and received threatening telephone

calls). For this reason, the petitioner's asylum claim fails.

The petitioner's remaining initiatives need not occupy us

for long. A claim for withholding of removal imposes "a more

stringent burden of proof on an alien than does a counterpart claim

for asylum." Rodriguez-Ramirez, 398 F.3d at 123. Thus, the

failure of the petitioner's quest for asylum dooms his quest for

withholding of removal.

That leaves the petitioner's claim for protection under

the CAT. To succeed on such a claim, an alien must show that it is

more likely than not that he will be tortured if returned to his

homeland. See Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.

2004). "Torture is defined as any act by which severe pain and

suffering, whether physical or mental, is intentionally inflicted

on a person . . . when such pain or suffering is inflicted by or at

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the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity." 8 C.F.R.

§ 208.18(a)(1).

In this case, the petitioner delineates the CAT standard

but makes no reasoned argument to support a claim that the BIA

erred in denying him protection. It is settled beyond peradventure

that theories advanced in skeletal form, unaccompanied by developed

argumentation, are deemed abandoned. See, e.g., Mazariegos v.

Gonzales, 428 F.3d 30, 37 n.3 (1st Cir. 2005); United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). That tenet applies here.

We need go no further. For the reasons elucidated above,

we uphold the BIA's decision and deny the petition for judicial

review.

So Ordered.

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