Pan v. Gonzales

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

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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

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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.

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 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,

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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.

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 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.

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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

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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).

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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.

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 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

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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

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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

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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.

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 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).

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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.

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