Feng Zhu Liu v. U.S. Attorney General , 156 F. App'x 270 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 1, 2005
No. 05-11163 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Agency Nos.
A95-895-534
A95-895-535
FENG ZHU LUI,
CHANG RONG LUI,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 1, 2005)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Feng Zhu Lui (“Feng”), and her husband, Chang Rong Lui (“Chang”)
(collectively referred to as “Petitioners”), proceeding pro se, seek review of the
Board of Immigration Appeals’ (“BIA’s”) decision affirming the immigration
judge’s (“IJ’s”) order denying their application for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”) and the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (“CAT relief”). On appeal, the Petitioners argue that if
they are returned to China they will be forcibly sterilized under the Chinese family
planning policy because they have three children. They contend that they will be
subjected to high fines, detention, torture, forced hard labor, and imprisonment.
They assert that they will be tortured upon return to China because they left
illegally. They claim past persecution and a well-founded fear of future
persecution based on Feng’s forced abortion in China. In response, the Attorney
General argues that we lack jurisdiction to review the BIA’s decision finding the
asylum application untimely.
I.
We are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.
2004) (citations and quotation marks omitted). An asylum application must be
“filed within 1 year after the date of the alien’s arrival in the United States.” INA
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§ 208(a)(2)(B); 8 U.S.C. § 1158(a)(2)(B). An untimely application “may be
considered . . . if the alien demonstrates . . . either the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing an application . . . .” 8
U.S.C. § 1158(a)(2)(D). The determination of whether an alien can apply for
asylum, however, is left exclusively to the Attorney General, and “[n]o court shall
have jurisdiction to review any determination of the Attorney General” regarding
the timeliness of the asylum application. 8 U.S.C. § 1158(a)(3). Section
106(a)(1)(A)(iii) of the REAL ID Act amends 8 U.S.C. § 1252 by adding a new
provision, § 1252(a)(2)(D), which provides in pertinent part:
(D) JUDICIAL REVIEW OF CERTAIN LEGAL CLAIMS.--Nothing
in subparagraph (B) or (C), or in any other provision of this Act (other
than this section) 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.
REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a), 119 Stat. 231, 310.
We have recently held that “[t]he timeliness of an asylum application is not a
constitutional claim or question of law covered by the Real ID Act’s changes.”
Chacon-Botero v. U.S. Att’y Gen., No. 04-16422, manuscript op. at 8 (11th Cir.
Oct. 6, 2005). Section 1158(a)(3) still “divests our Court of jurisdiction to review
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a decision regarding whether an alien complied with the one-year time limit or
established extraordinary circumstances that would excuse his untimely filing.” Id.After reviewing the record, we conclude that we do not have jurisdiction to
review the BIA’s decision regarding whether the Petitioners complied with the
one-year time limit or established extraordinary circumstances that would excuse
their untimely filing. Accordingly, we dismiss the petition as to any asylum claim.
II.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Because the BIA issued its own decision in this
case, we review the BIA’s decision. To the extent that the BIA’s decision was
based on a legal determination, review is de novo. Mohammed v. Ashcroft, 261
F.3d 1244, 1247-48 (11th Cir. 2001). The BIA’s factual determinations are
reviewed under the substantial-evidence test, and we “must affirm the BIA’s
decision if it is ‘supported by reasonable, substantial, and probative evidence on
the record considered as a whole.’” Al Najjar, 257 F.3d at 1283-84 (citation
omitted). The substantial evidence test is “deferential” and does not allow “re-
weigh[ing] the evidence from scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d
1320, 1323 (11th Cir. 2001). “To reverse the IJ’s fact findings, we must find that
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the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003) (considering withholding of removal claim).
To qualify for withholding of removal under the INA, an alien must show
that it is more likely than not that if returned to his or her country, the alien’s life or
freedom would be threatened on account of race, religion, nationality, membership
in a particular social group, or political opinion. INA § 241(b)(3); 8 U.S.C.
§ 1231(b)(3). “An alien bears the burden of demonstrating that he more-likely-
than-not would be persecuted or tortured upon his return to the country in
question.” Mendoza, 327 F.3d at 1287. An alien must demonstrate some nexus
between the alleged persecution or fear of persecution and one of the five protected
grounds. See Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292,
1297 (11th Cir. 1990) (“Even a clear probability that an alien’s life is threatened
without any indication that the basis of the threat is related to a statutorily
enumerated ground is insufficient to establish eligibility for relief.”).
An alien who has not shown past persecution may still be entitled to
withholding of removal if he can demonstrate a future threat to his life or freedom
on a protected ground in his country. 8 C.F.R. § 208.16(b)(2). To establish a
“well-founded fear,” “an applicant must demonstrate that his or her fear of
persecution is subjectively genuine and objectively reasonable.” Al Najjar, 257
F.3d at 1289 (discussing well-founded fear as it applies to asylum).
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To obtain withholding of removal under the CAT’s implementing
regulations, an alien must establish that he “more likely than not” will be tortured
upon his return to his home country. 8 C.F.R. § 208.16(c)(2). “Torture” is defined
as
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
Id. § 208.18(a)(1).
Uncorroborated but credible testimony from the applicant may be sufficient
alone to sustain the burden of proof for withholding of removal. 8 C.F.R.
§ 208.16(b). The weaker the applicant’s testimony, however, the greater the need
for corroborative evidence. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th
Cir. 2005). The BIA’s credibility determinations are also reviewed under the
substantial evidence test. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th
Cir. 2004). The BIA must provide “specific, cogent reasons” for its adverse
credibility finding, and those reasons must be supported by substantial evidence.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). Although “an
adverse credibility determination does not alleviate the IJ’s duty to consider other
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evidence produced by an asylum applicant[,] . . . [i]f the applicant produces no
evidence other than his testimony, an adverse credibility determination is alone
sufficient to support the denial of an asylum application.” Id. “If, however, the
applicant produces other evidence of persecution, whatever form it may take, the IJ
must consider that evidence, and it is not sufficient for the IJ to rely solely on an
adverse credibility determination in those instances.” Id. “Once an adverse
credibility finding is made, the burden is on the applicant alien to show that the IJ’s
credibility decision was not supported by ‘specific, cogent reasons’ or was not
based on substantial evidence.” Id. However, an adverse credibility finding must
go to the heart of the claim, and not be based on minor discrepancies,
inconsistencies, and omissions. See Gao v. Ashcroft, 299 F.3d 266, 272 (3rd Cir.
2002); Akinmade v. INS, 196 F.3d 951, 954 (9th Cir. 1999). A single inconsistency
may be sufficient to sustain an adverse credibility finding if the inconsistency is
related to the alien’s basis for her fear and goes to the heart of her asylum claim.
See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001).
Our review of the record persuades us that substantial evidence supports the
BIA’s determination that the Petitioners were not credible. The BIA provided
“specific, cogent reasons” for its credibility findings, notably, the inconsistencies
between the application and testimony regarding why the application was not
timely filed and who was detained following Feng’s abortion. The conflict
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regarding who was detained goes to the heart of the claim, as it undermines the
sole incident of past persecution.
The scant documentary evidence submitted by the Petitioners does not
compel the conclusion that Feng was forced to have an abortion or that they would
be persecuted if returned to China. Therefore, the Petitioners have failed to
establish past persecution or that it is more likely than not that they would face
persecution or torture in China. Accordingly, we deny the petition on these
grounds.
PETITION DISMISSED IN PART; DENIED IN PART.
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