Zhong Jiang v. U.S. Attorney General , 155 F. App'x 470 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 21, 2005
No. 05-11185
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-112-273
ZHONG JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 21, 2005)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Zhong Jiang, proceeding with counsel, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”)
denial of his application for asylum and withholding of removal. Jiang also
petitions for review of the IJ’s denial of relief under the United Nations
Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”). After review, we deny Jiang’s petition for review.
I. BACKGROUND
Jiang, a native and citizen of China, entered the United States using a
counterfeit Singapore passport. Jiang subsequently submitted an application for
asylum, withholding of removal, and CAT relief alleging persecution on account of
his membership in Falun Gong.1 Falun Gong is a movement in the People’s
Republic of China that blends aspects of Taoism, Buddhism, and the meditation
techniques of Qigong (a traditional martial art) with the teachings of Li Hongzhi.
1
An alien who arrives in or is present in the United States may apply for asylum. See 8
U.S.C. § 1158(a)(1). The Attorney General has discretion to grant asylum if the alien meets the
INA’s definition of a “refugee.” See 8 U.S.C. § 1158(b)(1). A “refugee” is
any person who is outside any country of such person’s nationality or, in the case
of a person having no nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, 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). “The asylum applicant carries the burden of proving statutory
‘refugee’ status.” D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004).
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In 1999, the Chinese government banned Falun Gong as a “threat to social and
political stability” and began a nationwide crackdown against the movement.
The IJ denied Jiang’s claims for asylum, withholding of removal, and relief
under the CAT. Specifically, the IJ concluded that Jiang’s testimony was not
credible because it was “vague, general and for lack of a better term, gossamer.”
The IJ also noted: (1) that Jiang claimed to have joined Falun Gong at about the
same time he acquired a passport to leave China and a visa to go to Malaysia;
(2) Jiang’s recent involvement with Falun Gong and his admission that he did not
consistently practice Falun Gong in the United States; (3) that Jiang, upon arriving
in the United States, did not immediately claim that he feared persecution and
torture based on his Falun Gong membership, “but rather was apparently more than
willing to get back on a plane”; (4) that Jiang’s demeanor “appeared to be greater
than nervousness”; and (5) that Jiang’s testimony appeared to have been “coached”
and “memorized.” Given the above, the IJ stated that he “question[ed] whether or
not [Falun Gong] was practiced [by Jiang] in China.”
Accordingly, the IJ concluded that Jiang had not met his burden of proof to
establish his eligibility for asylum or withholding of removal because he did not
present specific and credible testimony, or produce any corroborative evidence, to
demonstrate that he had suffered past persecution or had a well-founded fear of
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persecution on account of Falun Gong.2 The IJ also denied CAT relief because
Jiang failed to establish that it was more likely than not that he would be tortured if
returned to China.
The BIA summarily affirmed the IJ’s denial of Jiang’s application for
asylum, withholding of removal, and CAT relief. Specifically, the BIA stated that
the IJ’s adverse credibility determination was supported by the evidence given the
“numerous inconsistencies in the evidence,” noting, in particular: (1) the entries on
Jiang’s passport being inconsistent with his testimony; (2) the IJ’s finding that
Jiang’s testimony was “vague, general, and at times unresponsive”; and (3) the lack
of corroborative evidence to support Jiang’s claims.3
Jiang petitions this Court for review.
II. DISCUSSION
A. Standard of Review
Because the BIA summarily affirmed the IJ’s decision, we review the
opinion of the IJ because it is the final determination of the agency. Al Najjar v.
2
The IJ seemed to incorrectly determine that membership in Falun Gong may not fit
within the five protected grounds for asylum and withholding of removal. For immigration
purposes, Falun Gong is viewed as an imputed political opinion and a religion. See Zhang v.
Ashcroft, 388 F.3d 713, 720-21 (9th Cir. 2004). The basis for the IJ’s denial, however, was that
Jiang failed to present credible evidence that he suffered past persecution or has a well-founded
fear of future persecution on account of Falun Gong.
3
The BIA reversed, however, the IJ’s conclusion that Jiang had filed a frivolous asylum
application.
4
Ashcroft, 257 F.3d 1262, 1284 (11 th Cir. 2001). “We review the IJ’s factual
determinations under the substantial evidence test.” Forgue v. United States Att’y
Gen., 401 F.3d 1282, 1286 (11 th Cir. 2005). Furthermore,
[u]nder this highly deferential test, we affirm the IJ’s decision if it is
supported by reasonable, substantial, and probative evidence on the
record considered as a whole. Thus, we do not engage in a de novo
review of factual findings by the IJ. Similarly, we cannot find, or
consider, facts not raised in the administrative forum, nor can we
reweigh the evidence from scratch.
Id. (quotations, citation, and alterations omitted). This Court has also concluded
that “[a]s with other factual findings, credibility determinations likewise are
reviewed under the substantial evidence test. That is, the trier of fact must
determine credibility, and [we] may not substitute [our] judgment for that of the IJ
with respect to credibility findings.” Id. (quotations, citations, and alterations
omitted).
B. The IJ’s Adverse Credibility Determination Regarding Jiang
In this case, the IJ made very specific, cogent findings as to Jiang’s
credibility. Furthermore, the IJ specifically noted and relied upon material
inconsistencies in Jiang’s version of events.
In Forgue, this Court concluded that
the IJ must offer specific, cogent reasons for an adverse credibility
finding. Once an adverse credibility finding is made, the burden is on
the applicant alien to show that the IJ’s credibility decision was not
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supported by specific, cogent reasons or was not based on substantial
evidence. A credibility determination, like any fact finding, may not
be overturned unless the record compels it.
Id. at 1287 (citations and quotations omitted).
The cumulative inconsistencies in Jiang’s version of events and
documentary evidence are such that it was reasonable for the IJ to conclude that
Jiang’s testimony was not credible. See D-Muhumed, 388 F.3d at 819 (“[T]he IJ’s
extremely detailed adverse credibility determination alone may be sufficient to
support the IJ’s denial of [a petitioner’s] petition.”). Furthermore, Jiang has not
carried his burden in rebutting the IJ’s adverse credibility finding.
Because we cannot substitute our judgment for that of the IJ, and because
the IJ considered all the relevant evidence in the record in making its adverse
credibility determination, we conclude that the IJ’s denial of Jiang’s application for
asylum and withholding of removal is supported by substantial evidence.
Furthermore, this Court has concluded that when a petitioner “has failed to
establish a claim of asylum on the merits, he necessarily fails to establish eligibility
for . . . protection under CAT.” Forgue, 401 F.3d at 1288 n.4.
PETITION DENIED.
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