Zhi Quan Liu v. Holder , 341 F. App'x 44 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 10, 2009
No. 08-60365 Charles R. Fulbruge III
Clerk
ZHI QUAN LIU
Petitioner - Appellant
v.
ERIC HOLDER
Respondent - Appellee
Petition for Review of an Order
of the Board of Immigration Appeals
Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
Zhi Quan Liu petitions for review of an order of the Board of Immigration
Appeals denying his application for asylum, withholding of removal, and
protection under the Convention Against Torture. After a hearing, the
immigration judge issued an order denying Liu’s asylum and withholding
applications. The BIA affirmed but remanded for the IJ to consider whether Liu
was entitled to relief under the Convention Against Torture. On remand, a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60365
different IJ conducted another hearing and denied Liu’s application for CAT.
The BIA affirmed without opinion and Liu was ordered removed.
Liu filed a petition for review of the BIA’s order. His pro se brief asserts
that he seeks review of only the denial of his CAT claim; however, his arguments
include references to the standards applicable in asylum and withholding cases.
We read Liu’s brief as challenging the denial of all three claims. And because
the first BIA decision denying Liu’s asylum and withholding applications and
remanding for consideration of his CAT claim did not include a final order of
removal, Liu could not have petitioned for review of any of the claims until after
the BIA issued a final order.1 In denying Liu’s CAT claim, the BIA issued a
final agency determination ordering removal and we now review the denial of
Liu’s asylum, withholding, and CAT petitions.
I
Liu, a citizen of the People’s Republic of China, entered the United States
in 1993 without inspection. Shortly thereafter, Liu filed an asylum application,
but used the name Zhong Xian Guo and a fictitious birth date, both allegedly
given to him by those who smuggled him into the United States. Liu never
received notification from the government regarding this application, possibly
because he moved apartments or because of the name discrepancy. In 2002, the
former Immigration and Naturalization Service issued a notice to appear to Liu,
charging him with removability. Liu then filed another application for asylum
and withholding of removal, this time in his own name.
According to his 2002 application and his testimony at the hearing before
the IJ, Liu was part of a Christian church in his village in Fujian Province,
China. He asserted that church meetings were held at his parents’ house, where
he lived, and that on July 15, 1992, during one of these meetings, police arrived
1
8 U.S.C. § 1252(a)(5).
2
No. 08-60365
at the house and arrested him. He was detained for fifteen days. During the
detention he claims to have been interrogated for periods of hours while being
forced to kneel. He was asked the names of church leaders and to confess to
illegally gathering and harming government security. When he refused to
answer he was beaten. Eventually he confessed to harming government security
and was released on July 30 with the warning to stop the religious gatherings.
The gatherings continued, though, and Liu testified that on November 11, 1992
local police again stormed his house during a church gathering. Liu escaped out
the back door, fled to his uncle’s house, and stayed there and with various
friends until he paid a smuggler $30,000 to take him to the United States. He
has remained in contact with his parents who have since told him that the
Chinese government sentenced him to three years imprisonment based on his
confession.
After considering this evidence, the IJ denied Liu’s application for asylum
and withholding because Liu was not credible. The judge found Liu’s credibility
impugned by the 1994 asylum application that contained a false name, birth
date, and information. The judge also found it implausible that, if Liu’s story
were true, his mother would be able to continue her active participation in the
church without any government interference. The order noted minor
inconsistencies in the testimony of Liu and his common-law wife as to where his
wife’s children live and whether he lives and works more often in Houston or
Corpus Christi. And, finally, the IJ questioned why Liu was living with his
common-law wife without a ceremonial marriage if Liu was in fact an ardent
Christian. On these grounds, the IJ found that Liu failed to establish credible
support for asylum or withholding. In the alternative, the judge found Liu did
not demonstrate a clear probability of persecution because his mother continues
to practice the same religion without persecution.
3
No. 08-60365
At his CAT hearing, Liu offered similar testimony. Liu also offered
additional evidence not offered in his asylum and withholding hearing including
medical records of treatment following his detention, photographs of the injuries
he allegedly obtained from the beatings, and an affidavit from his uncle whose
house he fled to after the second police raid of his home. The IJ again found that
Liu was not credible, reasoning that he did not adequately explain the false
information in the 1994 application and that he spoke without emotion,
constantly blinked his eyes, and appeared nervous and evasive. The judge also
questioned why Liu never mentioned his hospital treatment and medical records
at his first hearing in 2004. For these reasons, the IJ found no credible evidence
supporting the likelihood that Liu would be tortured on return to China.
II
Because the BIA affirmed the first IJ’s decision on asylum and withholding
based on the reasons set forth in that decision, and affirmed the second IJ’s
decision on CAT without opinion, the IJ decisions become the final agency
determination we review on appeal.2 Agency decisions on credibility are fact
determinations: “[I]t is the factfinder’s duty to make determinations based on
the credibility of the witnesses.” 3 Findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.4 Under
this standard, reversal is improper unless we decide “not only that the evidence
supports a contrary conclusion, but also that the evidence compels it.” 5
2
Zhang v. Gonzales, 432 F.3d 339, 343 (5th Cir. 2005); Mikhael v. INS, 115 F.3d 299,
302 (5th Cir. 1997).
3
Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005) (quoting Chun v. INS, 40 F.3d 76,
78 (5th Cir. 1994)).
4
8 U.S.C. § 1252(b)(4)(B).
5
Zhao, 404 F.3d at 306 (quoting Chun, 40 F.3d at 78 (internal quotations marks
removed)). The new standards for evaluating witness credibility contained in the Real ID Act
do not apply to the IJ’s review of Liu’s 2004 application because those provisions of the Real
4
No. 08-60365
A
Regarding Liu’s asylum application, we do not have jurisdiction to review
the factual finding regarding the timeliness of the application made by the IJ.
Under 8 U.S.C. § 1158(a)(2)(B), an alien seeking asylum typically must
demonstrate by clear and convincing evidence that he filed an application within
one year of his or her arrival in the United States. Liu arrived in the United
States in 1993 and his instant application was filed in 2002. However, Liu
attempted to meet the time-limit requirement by relying on an application he
allegedly filed in 1994 under a false name and birth date. The IJ could not
determine whether the 1994 application was Liu’s.
The jurisdiction-stripping provision in 8 U.S.C. § 1158 precludes our
review of determinations of timeliness based on an IJ’s assessment of facts and
circumstances that affected the applicant’s filing.6 In the past, the provision
precluded all review of an IJ’s timeliness determination; however, the Real ID
Act of 2005 restored this Court’s jurisdiction to review constitutional claims or
questions of law.7 Although the IJ addressed the legal issue of whether Liu had
any claim to an application not in his own name, its initial finding was that it
could not determine whether the application was filled out, signed, and
submitted by Liu. This is a factual determination on which the IJ rested and
which we have no jurisdiction to review.
ID Act are effective only for applications filed after May 11, 2005. See 8 U.S.C. §
1158(b)(1)(B)(ii–iii); 8 U.S.C. § 1231(b)(3)(C) (stating that a trier of fact may determine
credibility on the “totality of the circumstances” and “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim”).
6
See Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007).
7
8 U.S.C. § 1252(a)(2)(D).
5
No. 08-60365
B
Unlike asylum, there is no time bar for seeking withholding of removal.8
An applicant for withholding of removal must show that “it is more likely than
not” that his life or freedom would be threatened by persecution on account of
one of the five categories mentioned under asylum: race, religion, nationality,
membership in a particular social group, or political opinion.9 The IJ found that
Liu’s testimony was not credible and could not support a withholding claim.
Although the IJ decision does not state it directly, we assume that this means
the IJ did not believe Liu’s testimony about his church group and related arrest,
detainment, and interrogation.
The primary reason for the IJ’s adverse credibility finding was that Liu
had filed a previous asylum application containing a false name and birth date
and stating that he was persecuted for his involvement in a student movement,
not for the religious reasons given in his later application. In his hearing, Liu
explained that he had gone to a “travel agency” to obtain the first application,
that he told them he wanted to apply for asylum based on religious reasons, that
they filled out the application, and that “[t]hey asked me to sign and I just
signed.” He admitted that the information in the first application was false, but
stated that he did not know its contents at the time. Despite this explanation,
the IJ found that the false information in his first application harmed his
credibility.
The IJ also found it implausible that his mother actively practices the
same religion from the same house as Liu but, according to Liu, has never been
arrested by the Chinese government. There are, of course, many possible
reasons that Liu may have been singled out or that his mother may have
8
Zhu v. Ashcroft, 382 F.3d 521, 528 (5th Cir. 2004).
9
8 C.F.R. § 208.16(b)(1).
6
No. 08-60365
escaped persecution. Chinese officials may have perceived Liu as the leader of
the organization, or merely as someone who was likely to divulge the names of
his compatriots. His mother may have held a respected position in their small
community or may not have been privy to the information the government
sought. These possibilities are mere conjecture on the record before this Court,
but the record begs an explanation. The IJ, without seeking an explanation,
concluded that it was “totally inconsistent” that Liu was arrested while his
mother was not.
The remaining inconsistencies perceived by the IJ did not go to the heart
of Liu’s claim.10 The IJ noticed contradiction between Liu’s testimony and his
common-law wife’s testimony as to where his wife’s two children live; whether
they both live with her or whether one lives in China. It was also unclear
whether Liu’s permanent residence is in Houston or Corpus Christi. Finally, the
IJ doubted Liu’s Christianity because he lives with his common-law wife without
having had a ceremonial marriage. Many of these discrepancies could easily be
a result of the language barrier, which required an interpreter for both questions
and answers, or Liu’s minimal education, described as being at a third-grade
level. As to Liu’s common-law marriage, the arrangement is legal and the
relationship long-standing; this seems more of a moral judgment based on the
IJ’s own understanding of religion than a legal determination of the credibility
of Liu’s testimony.
Nevertheless, we are constrained by our standard of review to conclude
that the IJ’s adverse credibility determination was supported by reasons derived
from the record and that there is no evidence that compels us to find Liu suffered
persecution on account of his religion. We do note that the substance of Liu’s
10
The new standards for evaluating witness credibility contained in the Real ID Act,
see 8 U.S.C. § 1158(b)(1)(B)(ii–iii); 8 U.S.C. 1231(b)(3)(C), do not apply to this application
which was filed before May 11, 2005.
7
No. 08-60365
testimony about his arrest, imprisonment, and interrogation contained ample
detail and remained consistent from the statement in his 2002 application
through his hearing. But his 1994 application containing a fabricated name,
birth date, and statement interjects enough inconsistency into the paper record
for us to defer to the factfinder that conducted Liu’s hearing in person and found
him not credible.
C
In a second order on remand from the BIA, the IJ addressed Liu’s CAT
claim. To obtain relief under the Convention Against Torture, an applicant must
show that it is more likely than not that he would be tortured if returned to his
home country.11 The IJ denied the CAT application, again based on an adverse
credibility finding.
The judge’s reasons repeated many of those given in the first decision, but
added remarks on Liu’s demeanor and questions on why new evidence was not
presented in the first hearing. We defer to the factfinder’s observations of Liu’s
demeanor during his testimony. But we question the use of newly-admitted
medical documents to characterize his testimony as contradictory with that at
the first hearing. Liu explained that medical records from his treatment
following his 1992 detention were not presented in the first hearing because they
had only recently been located and sent from China. He also explained that he
did not mention his hospital treatment at the first hearing because he was never
asked about it.
We acknowledge that the failure to mention the hospital visit at the first
hearing could raise the question of whether it was subsequently fabricated. But
the medical records themselves corroborate the treatment, putting this concern
to rest. To then use the late arrival of medical records that evidence Liu was in
11
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005); 8 C.F.R. § 208.16(c)(2).
8
No. 08-60365
fact treated for symptoms consistent with his account of his beatings to question
the veracity of his testimony on the subject is nonsensical. The medical records
substantiate the very claim that their late arrival is being used to question. It
would have been better for Liu had they been produced earlier, but they are
better late than never.
Nevertheless, the IJ also based its adverse credibility determination on
Liu’s demeanor and on his 1994 application which contained false information.
Again, as with our holding regarding the IJ’s first order, and based on our
deferential standard of review, the record does not compel a finding that Liu was
credible.
AFFIRMED.
9