Chen v. Holder, Jr. , 558 F. App'x 11 ( 2014 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1294
HONG CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Lipez, and Thompson,
Circuit Judges.
Gerald Karikari on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Jennifer L. Lightbody and Stefanie A. Svoren-Jay, Office of
Immigration Litigation, on brief for respondent.
March 14, 2014
LIPEZ, Circuit Judge. Hong Chen, a native and citizen of
the People's Republic of China, entered the United States without
being admitted or paroled. She was placed into removal proceedings
and filed applications for asylum, withholding of removal, and
relief under the Convention Against Torture ("CAT"). An
immigration judge ("IJ") denied Chen's applications for relief; the
Board of Immigration Appeals ("BIA") subsequently dismissed her
appeal. Chen now petitions for review of the BIA's order. Under
the deferential standard of review we accord to the agency's
factfinding, we deny the petition.
I.
We briefly recount the facts as alleged by petitioner.1
Hong Chen began to practice Christianity in 2008 while living in a
small village in China. In the summer of 2008, she regularly
attended underground church meetings at her fellow villager's home.
At least two of the meetings were broken up by the police. When
the police broke up a meeting on May 4, 2008, Chen was arrested and
detained for three days. Shortly thereafter, Chen left China for
the United States.
After a year-long journey, Chen arrived in Hidalgo, Texas
in September 2009. One day after entering the country, she was
detained and questioned by immigration officials. Chen told the
1
Because this appeal concerns the adequacy of an adverse
credibility determination as to petitioner, we cannot simply rely
on the facts as found by the IJ and the BIA.
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border patrol agent -- who was questioning her in Mandarin -- that
she had come to the United States to live and work in New York and
that she feared returning to China because she did not have
permission from the government to leave. She did not mention any
religious persecution. On November 4, 2009, an asylum officer
conducted a credible fear interview with Chen. She then mentioned,
for the first time, practicing Christianity in China and being
subject to police investigation as a result.
On November 10, 2009, removal proceedings were initiated
against Chen pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I).2 In
responding to the charge that she did not possess a valid entry
document, Chen admitted the factual allegations but expressed her
intent to pursue asylum, withholding of removal, and CAT
protection. At a hearing before an IJ, Chen testified about her
involvement with the underground church in China and about her
arrest. While in custody in China, the police demanded that she
reveal the names of other church members. When she refused to do
so, they beat her about the head with binders, causing bruising and
swelling. She was released after three days when her family paid
2
That provision deems ineligible for admission to the United
States "any immigrant at the time of application for admission--
who is not in possession of a valid unexpired immigrant visa,
reentry permit, border crossing identification card, or other valid
entry document required by this chapter, and a valid unexpired
passport, or other suitable travel document, or document of
identity and nationality if such document is required under the
regulations issued by the Attorney General."
8 U.S.C. § 1182(a)(7)(A)(i)(I).
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5,000 yuan. She continued to attend the church after this
incident. Although there was another incident when the police
broke up a meeting of the underground church, she escaped without
being arrested.
For impeachment purposes, the government introduced the
Record of Sworn Statement from the initial interview of Chen by
immigration officials in Texas. When confronted with the fact that
she did not mention her fear of religious persecution, Chen
responded that she was very afraid at the time of the interview and
did not want to say anything.
At the hearing's end, the IJ issued an oral decision
finding Chen removable and denying her application for asylum,
withholding of removal, and CAT protection. The IJ denied her
claims on the ground that Chen did not meet the burden of
demonstrating past persecution or a well-founded fear of
persecution on account of her religion. As the basis for that
determination, the IJ found that Chen's testimony was not credible
because it contradicted the statements she made to immigration
officials upon entry into the United States.
Chen appealed the IJ's decision to the BIA. The BIA
dismissed Chen's appeal. First, the BIA found that the IJ's
credibility determination was not clearly erroneous because it was
based on the discrepancies between Chen's testimony and her past
statements as well as the inadequacy of her proffered excuse for
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the discrepancies. Second, the BIA found that even if Chen was
credible, there was insufficient evidence of past persecution or
fear of future persecution. Specifically, the BIA noted that the
three-day detention and associated physical abuse did not rise to
the level of persecution. Finally, the BIA found that there was
insufficient evidence of a clear probability of torture upon Chen's
return to China. This timely appeal followed.
II.
We review on appeal "the BIA's decision as well as any
portions of the IJ's opinion adopted by the BIA." Peña-Beltre v.
Holder, 622 F.3d 57, 61 (1st Cir. 2010). We examine the BIA's
legal conclusions de novo and its factual findings under the
substantial evidence standard, Soeung v. Holder, 677 F.3d 484, 487
(1st Cir. 2012), accepting the agency's factfinding unless the
evidence "would compel a reasonable factfinder to reach a contrary
conclusion," Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009).
A. Chen's Claims of Persecution
Chen contends that the agency erred in concluding that
she was ineligible for asylum. A noncitizen seeking asylum "must
establish his or her status as a refugee." Soeung, 677 F.3d at
487. A refugee is defined as a noncitizen who is unwilling or
unable to return to her country of origin or seek that country's
protection "because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership
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in a particular social group, or political opinion." 8 U.S.C. §
1101(a)(42)(A). "A showing of past persecution gives rise to a
rebuttable presumption of future persecution." Vanchurina v.
Holder, 619 F.3d 95, 99 (1st Cir. 2010). Absent evidence of past
persecution, a petitioner must provide "'specific proof' that his
[or her] 'fear [of future persecution] is both subjectively genuine
and objectively reasonable.'" Decky v. Holder, 587 F.3d 104, 110
(1st Cir. 2009) (quoting Castillo-Díaz v. Holder, 562 F.3d 23, 26
(1st Cir. 2009)).
1. Credibility Determination
Chen bases her asylum claim on the alleged police
activities directed towards her and her underground church in
China. The IJ heard her testimony recounting these events but
chose to discredit it. The BIA found that the IJ did not clearly
err in making that credibility determination.
In reviewing such a credibility determination, we assess
whether it is "'supported by reasonable, substantial, and probative
evidence on the record considered as a whole.'" Bocova v.
Gonzales, 412 F.3d 257, 262 (1st Cir. 2005) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). We afford deference to
the IJ and BIA and will reverse a credibility determination only
when "any reasonable adjudicator would be compelled to conclude to
the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Simo v.
Gonzales, 445 F.3d 7, 11 (1st Cir. 2006); Chen v. Gonzales, 418
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F.3d 110, 113 (1st Cir. 2005).3 However, the IJ and the BIA "may
not reject a petitioner's testimony as incredible without a
specific, cogent, and supportable explanation." Simo, 445 F.3d at
11.
Here, the BIA found that the inconsistencies between
Chen's testimony at her removal hearing and her initial interview
by immigration officials provided the IJ with a specific and cogent
reason for finding her not credible. The BIA further found that
the IJ was entitled to find unconvincing Chen's brief explanation
attributing her lack of full disclosure to fear.
When, as here, a petitioner proffers an explanation as to
inconsistencies between her testimony before an IJ and earlier
3
As we explained in Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st
Cir. 2009):
Because h[er] application postdates the enactment of the
REAL ID Act, Pub. L. 109-13, 119 Stat. 302 (2005), the
credibility [determination] at issue here is subject to
a provision of that Act, codified at 8 U.S.C.
§ 1158(b)(1)(B)(iii), rather than to the preexisting
"heart of the matter" rule. The earlier rule required
that an adverse credibility finding be based on
inconsistencies that pertain to facts central to the
merits of the alien's claims. The new statute disavows
that test; it provides that a factfinder may base a
credibility determination on inconsistencies,
inaccuracies, or falsehoods "without regard to whether
[any such inconsistency, inaccuracy, or falsehood] goes
to the heart of the applicant's claim." 8 U.S.C. § 1158
(b)(1)(B)(iii). We therefore proceed to evaluate the IJ's
adverse credibility determination under that standard and
in light of the totality of the circumstances.
Id. (citation omitted) (internal quotation marks omitted).
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statements, an adverse credibility determination "must be evaluated
in light of th[at] explanation . . . and of the rest of the
evidence presented." Id. at 12. Chen tried to explain her failure
to mention her religious persecution upon entering the country by
merely stating that she was afraid. However, she also acknowledged
that she believed she was safe from such persecution in the United
States.
Chen further argues that any inconsistencies between her
initial interview with border patrol agents and her testimony at
the formal hearing cannot form the basis for an adverse credibility
determination, primarily because the former were not reliable. She
claims that the Record of Sworn Statement, which memorialized her
initial interview with the border patrol agent, does not enjoy a
"presumption of regularity," while the report of her asylum
interview, which is when she first mentioned her practice of
Christianity, does. We have previously held that the report of an
asylum interview enjoys a "presumption of regularity" and,
therefore, can be relied upon as an accurate account of what was
said. See Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007). To the
extent that petitioner seeks to have us exclude the Record of Sworn
Statement from consideration on the ground that it is somehow less
reliable than the report of an asylum interview, we decline to do
so. Chen neglected to raise this issue on appeal to the BIA. She
cannot raise this issue here for the first time. Silva v.
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Gonzales, 463 F.3d 68, 72 (1st Cir. 2006) ("Under the exhaustion of
remedies doctrine, theories insufficiently developed before the BIA
may not be raised before this court.").
Under the circumstances, we agree with the BIA that the
IJ did not clearly err in finding Chen's brief explanation
inadequate and discrediting her testimony based on the
inconsistencies.4
2. Evidence of Persecution
The BIA found that even if Chen were deemed credible, the
events she testified to did not rise to the level of persecution.
We have held that a noncitizen must have experienced something more
than "ordinary harassment, mistreatment, or suffering" to
demonstrate persecution. Lopez de Hincapie v. Gonzales, 494 F.3d
213, 217 (1st Cir. 2007). "The severity, duration, and frequency
of physical abuse are factors relevant to this determination, as is
whether harm is systematic rather than reflective of a series of
isolated incidents." Barsoum v. Holder, 617 F.3d 73, 79 (1st Cir.
2010) (citation omitted) (internal quotation marks omitted).
4
Chen also argues that the statements at issue were not
actually inconsistent, but rather incomplete. It is technically
true that her failure to disclose her past persecution in response
to questions about her reason for coming to the United States and
her fear of returning to China may be more fairly categorized as a
material omission. However, the IJ was nonetheless permitted to
make reasonable inferences from that omission in determining her
credibility.
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Here, Chen testified to the slapping of her head and face
with binders at two interrogation sessions that took place during
Chen's three-day detention. Her testimony indicated that the
injuries suffered from this incident were minor and did not require
professional medical treatment.5 We have previously held that
although "it would be impermissible to make the presence or absence
of injury requiring medical attention into a sort of 'acid test'
for persecution," the BIA is entitled to rely on the severity of a
petitioner's injuries in deciding whether she was subject to past
persecution. Decky, 587 F.3d at 111 (quoting Topalli v. Gonzales,
417 F.3d 128, 132-33 (1st Cir. 2005)). Here, as in Decky, though
the lack of severe injury is a relevant consideration, the
dispositive factor is the absence of any evidence of systematic
mistreatment of petitioner. See Decky, 587 F.3d at 111. Under the
circumstances, the BIA did not err in concluding that petitioner
did not suffer past persecution.
Without evidence of past persecution, Chen is not
entitled to a presumption that she will face future persecution.
Anacassus v. Holder, 602 F.3d 14, 21 (1st Cir. 2010). She may
nonetheless "prevail on an asylum claim by proving, simpliciter, a
well-founded fear of future persecution independent of any
presumption [, which] . . . requires the alien to demonstrate that
5
She did recount one other incident when the police raided a
church gathering, but she managed to avoid arrest and was not
subsequently pursued by police.
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h[er] fear of future persecution is both subjectively and
objectively reasonable." Orelien v. Gonzales, 467 F.3d 67, 71 (1st
Cir. 2006). We have said that a petitioner can meet this burden
"through an offer of 'specific proof.'" Castillo-Díaz v. Holder,
562 F.3d 23, 26 (1st Cir. 2009) (quoting Romilus v. Ashcroft, 385
F.3d 1, 6 (1st Cir. 2004)). When the possibility of relocation
within a petitioner's home country is at issue, such proof must
demonstrate, among other things, that a petitioner "could not avoid
future persecution by moving to another part of [her home
country]."6 Mejilla-Romero v. Holder, 600 F.3d 63, 75 (1st Cir.
2010), vacated on reh'g on other grounds, 614 F.3d 572 (2010).
As to likely future persecution, Chen put forth evidence
both of general trends of persecution of Christians in China and of
the situation in her own village. Chen also put forth evidence, in
the form of a letter from her mother in China, that the police were
specifically searching for her and threatened to arrest her upon
her return.
6
When a petitioner has successfully established past
persecution, the government has the burden to show either "a
fundamental change in circumstances in the country or the
opportunity to relocate safely within it." Precetaj v. Holder, 649
F.3d 72, 75 (1st Cir. 2011) (citing 8 C.F.R. § 1208.13(b)(1)(i)).
Here, without the benefit of the presumption created by evidence of
past persecution, the petitioner has the burden on the issue of
whether she would be able to safely relocate within her home
country.
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In response, the BIA relied upon the 2010 Department of
State International Religious Freedom Report in concluding that
there are areas of China where Chen could practice her religion
openly without fear of persecution. In affirming previous BIA
decisions finding a lack of sufficient evidence as to persecution
of Christians in China, we have approved reliance on similar
reports from the Department of State. See, e.g., Dong v. Holder,
696 F.3d 121, 127 (1st Cir. 2012) (quoting the 2008 Department of
State Human Rights Report, which stated that "in some regions
unregistered groups or house churches with hundreds of members
[met] openly, with full knowledge of [the] authorities" (second
alteration in original)); Zhang v. Holder, 330 Fed. App'x 201, 203
(1st Cir. 2009) (relying on 2005 Department of State Report on
China for the proposition that the government's religious tolerance
"varie[d] greatly," but that Protestantism was one of the five
officially recognized religions and was rapidly growing).
The record as just described does not compel the
conclusion that Chen could not practice her Christianity elsewhere
in China; in fact, the BIA indicated that she could likely do just
that. As we have repeatedly held, "[m]erely identifying
alternative findings that could be supported by substantial
evidence is insufficient to supplant the [IJ's] findings."
Guaman-Loja v. Holder, 707 F.3d 119, 123 (1st Cir. 2013)
(alteration in original)(quoting Albathani v. INS, 318 F.3d 365,
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372 (1st Cir. 2003). Accordingly, we discern no error in the BIA's
conclusion as to future persecution.
B. Chen's Remaining Claims
Because Chen has failed to demonstrate that she is
eligible for asylum, her claims for withholding of removal and
relief under CAT also fail. See Singh v. Mukasey, 543 F.3d 1, 7
(1st Cir. 2008) (observing that claims for withholding and CAT
protection "place a higher burden of proof on the petitioner than
a counterpart claim for asylum" and stating that petitioner's
failure to establish eligibility for asylum similarly doomed those
claims); Barsoum, 617 F.3d at 80-81 (same).
The petition is denied. So ordered.
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