Deng Li v. Eric Holder, Jr. ( 2012 )

REVISED JUNE 28, 2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 26, 2012
No. 11-60656
Summary Calendar Lyle W. Cayce
Clerk
DENG MING LI,
Petitioner,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A 088 623 736
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 11-60656
Deng Ming Li, a native and citizen of the Peoples Republic of China
(“PRC”), petitions for review of an order of the Board of Immigration Appeals
(“BIA”) dismissing his appeal of an order of an Immigration Judge (“IJ”) denying
his applications for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture (“CAT”). Li argues that the IJ’s adverse
credibility finding was clearly erroneous because (1) the IJ determined that a
portion of Li’s testimony was implausible based on the IJ’s personal opinion
rather than the evidence, (2) the IJ reached his decision based on his mistaken
impression that Li modified his original statement supporting his asylum appli-
cation to make himself eligible for relief under an intervening decision in Matter
of J-S-, 24 I.&N. Dec. 520 (A.G. 2008), and (3) the use of the video-conference
format violated his due-process and statutory rights and impeded the IJ’s ability
to observe his demeanor, a factor relevant to the IJ’s credibility determinations.
Li maintains that the IJ clearly erred in determining to be implausible Li’s
testimony that family-planning officials were unaware that his wife was not
using an intrauterine device (“IUD”), in light of her monthly check-ups at the vil-
lage clinic. His challenge to that finding is that the IJ relied on the IJ’s personal
opinion about the type of examination conducted despite Li’s presentation of con-
trary evidence that the checkups were limited to a determination whether his
wife was pregnant.
Credibility determinations that are unsupported by the record and are
based on pure speculation or conjecture will not be upheld. Mwembie v. Gon-
zales, 443 F.3d 405, 410 (5th Cir. 2006). The record reflects that in finding that
Li’s testimony on this point was implausible, the IJ based his decision on his
experience in other cases involving the sterilization issue. The IJ rejected Li’s
explanation that his wife’s check-ups in the village clinic were limited to a deter-
mination whether she was pregnant, although it was a plausible explanation
given that that determination could be made without an examination that would
reveal the absence of an IUD. Further, there was no evidence that Li’s wife was
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No. 11-60656
subject to gynecological or physical examinations during those checkups.
There was not substantial evidence in the record to support the IJ’s deter-
mination that Li’s testimony about the limited nature of the checkups was
incredible. That adverse credibility finding was not supported by cogent reasons
and thus was clearly erroneous. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005).
Li argues that the IJ made his credibility determinations under the mis-
taken impression that Li had amended his asylum application, by the time of the
hearing, to make himself eligible for relief under the intervening decision in
Matter of J-S-, when he actually modified the application at the time of his asy-
lum interview in July 2007. The decision in Matter of J-S declared that the
spouse of a person who has been subjected to a forced abortion or sterilization
procedure is not per se entitled to refugee status; those petitioners may still be
able to show eligibility for relief, however, if they have been personally perse-
cuted on the basis of their resistance to PRC’s family planning policies. 24 I.&N.
Dec. at 534. Li argues that, before the decision in Matter of J-S- on May 15,
2008, the transcript of his statement was changed to correct an erroneous trans-
lation that reflected that he had been advised by family-planning officer that
only he was required to report for sterilization; the corrected statement reflects,
however, that Li was actually told by the family-planning officers that either he
or his wife had to report for sterilization.
During the hearings, the IJ made several references to Matter of J-S- and
commented that the timing of the changes in the statement was significant in
light of that case. But in his oral decision, the IJ made no express reference to
Matter of J-S- in addressing the inconsistencies concerning the application of the
sterilization requirement, and the IJ did not indicate that his findings were
influenced by the timing of Li’s modifications of the statement. Rather, the IJ
discussed the inconsistencies in Li’s statement and testimony about whether on
August 13, 2006, the family planning officers instructed Li or his wife or both to
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No. 11-60656
undergo sterilization by September 15, 2006. The IJ’s determination that Li
contradicted himself several times about who was to report for sterilization was
not clearly erroneous, because the record reflected that Li gave several different
responses to that question despite the IJ’s repeated attempts to clarify Li’s posi-
tion as to what he was told by the officers.
Li did not provide compelling evidence that contradicted the IJ’s findings
of inconsistencies in his testimony concerning whether Li was personally subject
to sterilization, which was a significant issue is determining whether he had a
well-founded fear of future persecution and, thus, was an issue central to the
heart of his claim. 8 U.S.C. § 1101(a)(42); Matter of J-S, 24 I.&N. Dec. at 542.
In light of the deference due to the IJ’s construction of the evidence, the IJ’s
credibility finding with respect to this testimony is supported by substantial
evidence in the record and thus supports the adverse credibility finding. Wang,
569 F.3d at 538.
Other than the IJ’s finding regarding the implausibility of Li’s testimony
that family-planning officers did not detect the absence of his wife’s use of an
IUD, Li has not challenged the other inconsistencies in the evidence relied on by
the IJ. In making the adverse credibility determination, the IJ could consider
those inconsistencies even if they did not go to the heart of his claims. 8 U.S.C.
§ 1158(b)(1)B)(iii). Because the totality of the circumstances does not compel a
finding that Li was credible, this court must accept the adverse credibility
determination of the IJ and BIA. See Wang, 569 F.3d at 538-39.
Li has not challenged the IJ’s determination that his single arrest, over-
night detention, and beating with a stick did not rise to the level of past perse-
cution contemplated under the immigration statutes. In light of the adverse
credibility finding that Li failed to present substantial evidence that he would
be subject to sterilization if he returns to PRC, he failed to make a credible show-
ing that he has a well-founded fear of future persecution based on his political
opinion. Therefore, he did not demonstrate that he was entitled to asylum. See
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No. 11-60656
Zhang, 432 F.3d at 345. Because Li cannot meet the requirements for asylum,
he cannot meet the more stringent requirements for withholding of removal. See
Eduard v. Ashcroft, 39 F.3d 182, 186 n.2 (5th Cir. 2004). Li has not challenged
the IJ’s and BIA’s denial of his request for relief under the CAT, so he has aban-
doned that claim. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
Li argues that in making a credibility determination, the IJ did not con-
sider his demeanor, responsiveness, or the evidence that he presented, because
the hearing was conducted by video conference. Complaining that the hearing
was plagued by communication and technical problems, he asserts that the
video-conferencing format violated his due-process and statutory rights and led
to the IJ’s misinterpretation of the evidence, resulting in erroneous credibility
findings.
Congress specifically authorized conducting removal proceedings by means
of a video conference. See 8 U.S.C. § 1229a(b)(2)(A)(iii). During the proceedings,
the petitioner must be provided with an “opportunity to be heard at a meaning-
ful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319,
333-34 (1976). An IJ must conduct deportation hearings in accord with “due pro-
cess standards of fundamental fairness.” Bouchikhi v. Holder, 676 F.3d 173, 180
(5th Cir. 2012). Review of a claim of a due process violation is de novo, and to
prove a claim, the alien must demonstrate substantial prejudice. Id.Li has failed to show that he was prejudiced by the format because it
affected the IJ’s ability to recognize the date that his statement supporting his
asylum was modified; the IJ did not even rely on the dates of the modification
in reaching his decision to deny relief. Nor did the format affect the IJ’s ability
to observe Li’s demeanor: Li was repositioned after his counsel complained so
that the IJ could observe him during his testimony.
Further, in the absence of the IJ’s making any findings concerning Li’s
demeanor, Li has not shown that he was prejudiced by any visual limitation aris-
ing from the format. Li’s complaints about the communication and technological
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No. 11-60656
problems during the hearing were rebutted by the record, which reflects that
those issues were addressed during the hearing.
Li failed to show that he was prejudiced by the use of the video-conferenc-
ing format, because he did not establish that he was precluded from meaning-
fully presenting his case. Thus, he did not demonstrate a due-process violation.
See Mathews, 424 U.S. at 333-34; Bouchikhi, 676 F.3d at 180.
The petition for review is DENIED.
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