Jiang Jing Jiang v. Gonzáles , 156 F. App'x 336 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2684
JING JING JIANG,
Petitioner,
v.
ALBERTO R. GONZÁLES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Wei Jia, for petitioner.
Lisa Wilson Edwards, with whom Anthony W. Norwood, Mark L.
Gross, Attorneys, United States Department of Justice, and Peter D.
Keisler, Assistant Attorney General, Civil Division, were on brief,
for respondent.
December 21, 2005
TORRUELLA, Circuit Judge. Petitioner Jing Jing Jiang
petitions us to review a decision of the Board of Immigration
Appeals ("BIA") affirming an Immigration Judge's ("IJ's") denial of
her asylum application.1 We deny the petition for review and
affirm the decision of the BIA.
I. Background
Jiang is a native and citizen of China who entered the
United States at the Los Angeles International Airport on July 19,
2001, without a valid entry document. She was sixteen years old at
the time. On July 30, 2001, the Immigration and Naturalization
Service ("INS")2 issued a Notice to Appear charging that Jiang was
removable under § 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an
alien not in possession of a valid immigration document. On
July 9, 2002,3 Jiang admitted the allegations against her, conceded
1
The BIA also denied Jiang's application for withholding of
removal. While Jiang states in the concluding paragraph of her
brief that she is eligible for withholding of removal, she has not
addressed the issue in any other part of her brief. We therefore
deem the issue waived. See Qin v. Ashcroft, 360 F.3d 302, 305 n.5
(1st Cir. 2004).
2
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
3
Jiang was originally ordered to appear before an IJ in San
Pedro, California. However, she filed two motions for a change of
venue, both of which were granted. In the first, she requested
that her removal proceeding be moved to New York, New York, where
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removability, and filed applications for asylum and withholding of
removal. Jiang testified at a hearing before an IJ on February 4,
2003. We draw the following facts from this testimony and the
documents Jiang presented in support of her applications.
Jiang's father owned a bookstore that he opened in 1997
in Wuhan Changle Township in China. Jiang worked in the bookstore
soon after graduating from middle school in July 2000. In October
2000, Jiang's father began practicing Falun Gong,4 which the
Chinese government has classified as a cult and banned. Jiang's
father also sold Falun Gong books in his bookstore. Jiang, her
mother, and her sister do not practice Falun Gong.
In May 2001, Jiang's father went into hiding.5 He was
gone for four or five days before Jiang noticed his absence.
she was living with her uncle. In the second, she requested a
change of venue to Boston, Massachusetts, which is where her
hearing eventually took place.
4
According to the U.S. Department of State, Falun Gong
blends aspects of Taoism, Buddhism, and the meditation
techniques and physical exercises of qigong (a
traditional Chinese exercise discipline) with the
teachings of Falun Gong leader Li Hongzhi . . . .
Despite the spiritual content of some of Li's teachings,
Falun Gong does not consider itself a religion and has no
clergy or places of worship.
2002 International Religious Freedom Report: China (U.S. Dep't of
State, 2002).
5
There is no indication in the record of what exactly prompted
Jiang's father to go into hiding, although Jiang stated he went
into hiding from the government because he practiced Falun Gong.
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According to Jiang, her father was often gone from their home for
days at a time while visiting friends or relatives, and she thus
did not think it strange when she did not see him for a few days.
Around the same time, government officials came to the
family bookstore while Jiang was working there. The officials were
looking for Jiang's father and told Jiang that they knew her father
practiced Falun Gong. Jiang told the officials that she did not
know where her father was. After the officials repeated their
questions a few times, they took Jiang with them. Jiang was taken
to a very small room in a building that looked like a local police
station. The room had a small window just above the bed. The next
day, the officials came to the room and told Jiang to give them
"the real answers."
The officials detained Jiang for around a week, during
which time they gave her one meal per day. They never physically
harmed her. On the last evening of her captivity there was a
typhoon, during which the window above her bed shattered. Jiang
was able to climb out the window and jump to the ground below.
Although she did not know exactly where she was, Jiang walked until
she found a telephone, which she used to call her mother. Jiang's
mother sent a car to pick her up, and Jiang went into hiding. She
stayed at an aunt's house for one evening, then stayed in a hotel
for a week or two. Jiang's mother arranged her departure from
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China to the United States. Jiang's mother and sister still live
in China and have not reported any problems to Jiang.
The IJ denied Jiang's applications, finding that Jiang's
testimony was not credible. First, the IJ found it odd that
Jiang's father was missing for four or five days before Jiang
noticed and wondered how Jiang was able to operate the bookstore
without her father. Second, the IJ stated that "[i]t simply is not
reasonable . . . that the police officers would question a then 16-
year-old girl as to the whereabouts of her father when, if they
truly wanted to know where her father was, they would have
questioned [Jiang's] mother." Third, the IJ disbelieved Jiang's
testimony that she was held in a small room for a week by the
police because it did not make sense that the police would hold
Jiang and not Jiang's mother. Fourth, the IJ disbelieved Jiang's
testimony regarding her escape, stating that "[i]t would certainly
seem to me that if she was being held somewhere in detention . . .
that she would have been held in a cell in the police station and
not just a small room with a window." Fifth, the IJ disbelieved
Jiang's testimony regarding how she was able to contact her mother
and how her mother was able to have a car pick her up. The IJ
stated that "[o]ne would wonder where the respondent would have
called from, and how her mother would have known where to send a
taxi to." Finally, the IJ stated that, if Jiang had really
escaped, then the police would have sent officers after her, and
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"certainly . . . would have gone to the mother's home, and . . .
very likely would have held the mother in detention. All of these
things did not happen." The IJ also stated that Jiang was not a
practitioner of Falun Gong and concluded that, at best, "she was
not being persecuted because she was a Falun Gong practitioner, but
rather abused by the police, who wanted to find her father."
Jiang appealed to the BIA, which adopted and affirmed the
IJ's decision on November 16, 2004. Jiang now contests the BIA's
decision.
II. Discussion
In order to establish eligibility for asylum, an asylum
applicant has the burden of establishing that she is a "refugee."
8 U.S.C. § 1158(b)(1)(B); 8 C.F.R. § 208.13(a). "Refugee" means
any person who is outside of her home country and "is unable or
unwilling to return to . . . that country because of persecution or
a 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). An applicant may meet
this burden by showing past persecution -- which creates a
rebuttable presumption of a well-founded fear of future
persecution, Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003)
-- or a well-founded fear of future persecution on account of one
of the five statutory grounds. 8 C.F.R. § 208.13(b)(1).
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To establish past persecution, an applicant must provide
"conclusive evidence" that she was targeted on any of the five
grounds. Fesseha, 333 F.3d at 18. To show a well-founded fear of
future persecution, "the asylum applicant's fear must be both
genuine and objectively reasonable." Aguilar-Solís v. INS, 168
F.3d 565, 572 (1st Cir. 1999).
We review decisions of the BIA under the substantial
evidence standard, Mihaylov v. Ashcroft, 379 F.3d 15, 17 (1st Cir.
2004), and will uphold the BIA's decision if it is "'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.'" INS v. Elías-Zacarías, 502 U.S. 478, 481
(1992)(quoting 8 U.S.C. § 1105a(a)(4)). Under this standard, "[t]o
reverse the BIA finding, we must find that the evidence not only
supports that conclusion, but compels it." Id. at 481 n.1
(emphasis in original).
A. Credibility
In order to establish eligibility for asylum, "an alien
must support [her] claim of persecution through credible testimony.
Credible testimony, standing alone, may be adequate to sustain the
alien's burden of proof. But if the proffered testimony is not
credible, it may be either disregarded or sharply discounted
. . . ." Nikijuluw v. Gonzáles, 427 F.3d 115, 121 (1st Cir. 2005)
(internal citation omitted).
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Both Jiang and the government took the position in their
briefs that the BIA did not address the IJ's adverse credibility
determination and, in effect, assumed that Jiang presented credible
testimony. However, having carefully reviewed the BIA's decision,
we believe that the parties have erroneously interpreted that
decision.
The BIA stated that it agreed with the IJ's decision
to the extent that the [IJ] determined that
[Jiang] failed to carry her burden of proof
with respect to her claim for asylum . . . In
this regard, the [IJ] identified a number of
assertions by [Jiang] which are of such a
nature that they would reasonably require
corroboration in order to merit the assignment
of full probative value. However, the record
is devoid of such objective evidence.
(emphasis added). It is true that the BIA agreed with the IJ's
decision because it found that Jiang had failed to carry her burden
of proof. However, it appears to us that the reason the BIA found
Jiang had failed to carry her burden of proof was that portions of
her testimony were not entirely credible and therefore required
corroborative evidence, which Jiang did not provide.
This conclusion is bolstered by two other portions of the
BIA's decision. First, in support of its statement that Jiang
should have provided certain corroborative evidence, the BIA cited
Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000). Sidhu involved a
situation where the BIA made an adverse credibility finding and
denied the petitioner's asylum application because the petitioner
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failed to present certain corroborating evidence. As in Sidhu, id.
at 1092, it appears that the BIA in the instant case was affirming
the IJ's adverse credibility determination and requiring
corroborative evidence. Second, the BIA stated near the end of its
decision that "[i]nasmuch as we are in agreement with the decision
of the [IJ] as noted above, we adopt and affirm his decision." The
IJ's decision focused almost exclusively on Jiang's credibility.
It would not make sense for the BIA to state that it adopted the
IJ's decision if it in fact did not even purport to address the
majority of that decision. For all these reasons, we believe that
the BIA affirmed the IJ's credibility determination.6
When "the BIA adopt[s] the IJ's credibility determination
and decision, we review the IJ's decision as the adopted final
agency determination." Chen v. Gonzáles, 418 F.3d 110, 113 (1st
Cir. 2005). We review the credibility determinations of the IJ or
BIA under the substantial evidence standard and will uphold the
credibility determination "'unless any reasonable adjudicator would
be compelled to conclude to the contrary.'" Kheireddine v.
Gonzáles, 427 F.3d 80, 88 (1st Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)). Often adverse credibility determinations are made as
a result of inconsistencies in a petitioner's testimony or the
6
Jiang cites to several cases in her brief wherein the BIA did
not address the petitioner's credibility yet required certain
corroborative evidence. However, in those cases the BIA explicitly
stated that it was either not addressing credibility or was
assuming credibility. That is not the situation in Jiang's case.
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demeanor of the petitioner while testifying. See, e.g., Long v.
Gonzáles, 422 F.3d 37, 39-41 (1st Cir. 2005) (inconsistencies);
Falae v. Gonzáles, 411 F.3d 11, 15 (1st Cir. 2005) (demeanor). In
the instant case, however, the IJ focused on aspects of Jiang's
testimony that he found inherently implausible. We have stated
that where adverse credibility findings are based on "analysis of
testimony rather than on demeanor [such findings] deserve less than
usual deference." Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir.
1994) (internal quotation marks and citation omitted).
We believe that some of the "implausibilities" identified
by the IJ were adequately explained by Jiang in her testimony. For
example, the IJ found it "curious" that Jiang's family did not
discuss the fact that Jiang's father was going into hiding, and
that Jiang's father was gone for four or five days before she
noticed his absence. Jiang explained this by stating that her
father was often away for days at a time visiting friends and
relatives, so she thought nothing of his absence at first. Jiang
further explained that her mother did not immediately tell her that
her father had gone into hiding because she was still a child at
the time and her mother did not want her to worry. This
explanation is plausible, in that parents often keep problems from
their children.
However, other implausibilities were not so easily
explained. For example, Jiang stated that she escaped from
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captivity when a typhoon broke a small window in her cell, so that
she was then able to climb through and jump to the ground below.
As the IJ noted, if Jiang were being held as she claimed, it is
unlikely that she was being held in a room with a window which she
could access and escape through. Further, if officers had taken
Jiang and she had escaped, it is highly likely that the officers
would have at the least questioned her mother about Jiang's
whereabouts, put Jiang's mother under surveillance, or even put
Jiang's mother in detention. After all, the authorities would have
still been looking for Jiang's father, and would also want to find
Jiang, who had escaped. It does not appear from the record that
any of this ever occurred. In fact, Jiang testified that her
mother and sister still live in the same location in China, and
neither has reported any problems to Jiang since she came to the
United States.
Reviewing for substantial evidence, we are not compelled
to conclude that the BIA and IJ erred in the adverse credibility
determination. While we think that certain aspects of Jiang's
testimony which the IJ found problematic were adequately explained
by Jiang, other portions were not. On the whole, Jiang's story
simply was not entirely credible and would have been greatly helped
by corroborative evidence such as an affidavit from Jiang's mother
(who was able to send a copy of the bookstore's business license to
Jiang). We therefore affirm the adverse credibility determination.
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B. Past Persecution
The adverse credibility determination disposes of Jiang's
claim of past persecution. However, we wish to note that, even
assuming Jiang's testimony was credible, her experiences do not
rise to the level of past persecution.7 "To qualify as
persecution, a person's experience must rise above unpleasantness,
harassment, and even basic suffering." Nelson v. INS, 232 F.3d
258, 263 (1st Cir. 2000) (no persecution where petitioner was
briefly detained on three separate occasions, physically abused,
and occasionally under surveillance). In the instant case,
although Jiang was allegedly detained for a week, she was fed every
day and was never physically harmed in any way. We are not
compelled to find that her alleged experiences constituted past
persecution.
C. Well-Founded Fear of Future Persecution
Since Jiang has not proven past persecution, she is not
entitled to a presumption of a well-founded fear of future
persecution. However, she can still demonstrate a well-founded
fear if she shows that her fear is "both genuine and objectively
reasonable." Aguilar-Solís, 168 F.3d at 572. Both the objective
and subjective prongs of this test depend on an applicant's
credibility. To satisfy the subjective prong, the applicant must
7
We believe this to be true even considering Jiang's age
(sixteen) at the time of the events that allegedly occurred in
China.
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show her fear is genuine. Palma-Mazariegos v. Gonzáles, 428 F.3d
30, 35 (1st Cir. 2005). To satisfy the objective prong, the
applicant "must show by credible evidence that her fear of future
persecution is reasonable." Laurent v. Ashcroft, 359 F.3d 59, 65
(1st Cir. 2004).
Jiang claims that the BIA failed to consider whether
Jiang had a well-founded fear of future persecution. Jiang is
correct that the BIA never explicitly stated that Jiang did not
have a well-founded fear. However, the BIA did state that Jiang
had failed to carry her burden of proof for her asylum claim, and
it gave as its main reason her lack of credibility and the need for
certain corroborative evidence. The BIA's opinion certainly was
not a model of clarity, and, in a different situation, we might be
compelled to vacate its order. See, e.g., Halo v. Gonzáles, 419
F.3d 15, 19 (1st Cir. 2005) (vacating BIA's order where the BIA
gave only a conclusory explanation for finding the petitioner did
not make sufficient showing of persecution to meet burden of
proof). In the instant case, however, we believe it is clear that
the BIA and IJ based their decisions on the adverse credibility
determination. Consequently, Jiang cannot meet either prong of the
well-founded fear test. We therefore find substantial evidence to
support the BIA's denial of Jiang's asylum claim.8
8
We also note that the fact that Jiang's mother and sister
continue to live in China and have not reported any problems to
Jiang undercuts Jiang's claim of having a well-founded fear. See
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III. Conclusion
For the foregoing reasons, the BIA's denial of Jiang's
asylum claims is supported by substantial evidence. We deny the
petition for review and affirm the decision of the BIA.
Affirmed.
Ali v. Gonzáles, 401 F.3d 11, 16 (1st Cir. 2005) (citing the fact
that the petitioner's family still lived safely in Ethiopia as one
of the reasons that petitioner had failed to prove a well-founded
fear).
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