Yanyun Ni v. Eric Holder, Jr. ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0154n.06
Case No. 13-3444 FILED
Feb 25, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
YANYUN NI, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
)
)
BEFORE: BATCHELDER, Chief Judge; SILER and CLAY, Circuit Judges.
SILER, Circuit Judge. Yanyun Ni, a native and citizen of China, petitions this court to
review the decision of the Board of Immigration Appeals (“BIA”) affirming the denial of her
application for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). For the following reasons, we DENY review of the BIA’s decision.
I.
Ni testified that she was born in Fuzhou City, China and that her husband, children and
parents continue to reside there. In 2002, Ni married Tianpeng Wang, and together the couple
have four children. After her first child was born, Ni claims she was forced by Chinese family
planning officials to have an intrauterine device inserted and was later fined for having it
removed by a private doctor. She also asserts that she became a Christian in 2009 and was later
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Ni v. Holder
arrested and detained for twelve days by Chinese authorities for attending an underground
church. In October 2009, Ni says she became pregnant for a fifth time, but was forcibly aborted
by Chinese population control authorities.
In April 2010, Ni traveled to the United States on a B-1 nonimmigrant visa, with
authorization to remain for a temporary period. Within a few weeks of arriving, she filed with
the Department of Homeland Security (“DHS”) an application for asylum, withholding of
removal and protection under CAT. In her application, she sought protection from alleged
persecution by Chinese population control officials and the ability to practice her Christian faith
freely. The asylum officer found Ni’s testimony contained multiple inconsistencies and was not
credible: “[a]pplicant’s inability to talk about certain events out of order suggests that she was
reciting language from memory rather than testifying about events that actually happened to
her.” DHS denied the application and referred it to the Immigration Judge (“IJ”) while placing
Ni into removal proceedings.
During the immigration court hearing, the IJ also noted multiple inconsistencies in Ni’s
testimony and ultimately found she lacked credibility. The IJ specifically found it troubling that
Ni reported to be hiding from government officials at times, yet at the same time paid fines
assessed by family planning officials. Indeed, the amount of the fines and her family’s ability to
pay varied throughout Ni’s testimony. Additionally, the IJ noted that Ni offered evasive and
nonresponsive answers when asked about her travel documents and visits to the U.S. consulate in
Guangzhou. Finally, the IJ found it difficult to believe that Ni could have left China twice1
while, by her own testimony, she was evading family planning officials and being watched by
1
Ni traveled to the U.S. in March 2010, but returned to China after a few days without
filing for asylum. A few weeks later, in April 2010, she traveled to the U.S. for the final time
before filing for asylum.
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police following her arrest at an underground church. In addition to finding her not credible, the
IJ indicated that Ni failed to provide corroborating evidence that he would have expected, e.g.,
statements from her husband and mother-in-law, who had first-hand knowledge about many of
Ni’s claims.
The BIA found the IJ’s credibility determination of Ni was not clearly erroneous because,
in accordance with 8 U.S.C. § 1158(b)(1)(B)(iii), it was based on Ni’s inconsistent and
nonresponsive answers in the context of the totality of the circumstances. Furthermore, the BIA
upheld the IJ’s determination that Ni had not sufficiently corroborated her testimony. Finally,
the BIA agreed with the IJ that Ni’s claims regarding potential future persecution due to her
practice of Christianity were too speculative to satisfy the objective component required for a
well-founded fear determination.
II.
“Where, as here, the BIA reviewed the IJ’s decision de novo and issued its own separate
opinion, we review the BIA’s opinion as the final agency determination.” Morgan v. Keisler,
507 F.3d 1053, 1057 (6th Cir. 2007). Moreover, to the extent the BIA adopts the IJ’s reasoning
in its opinion, we review that analysis. See Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).
Legal conclusions are reviewed de novo, while factual findings and credibility
determinations are reviewable under the substantial-evidence standard. Khozhaynova v. Holder,
641 F.3d 187, 191 (6th Cir. 2011). Under the substantial-evidence standard, factual findings and
credibility determinations “are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Id. (emphasis added).
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III.
A. Credibility
An applicant for asylum has met her burden, “if the applicant satisfies the trier of fact that
the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to
demonstrate that the applicant is a refugee.”2 U.S.C. § 1158(b)(1)(B)(ii). Substantial evidence
in the record, though, supports the BIA’s affirmance of the IJ’s finding that Ni’s testimony
lacked credibility.
In responding to questions involving several material issues, Ni repeatedly provided
inconsistent answers. For example, she gave substantially different answers about the total
amount of the fines that had been assessed by Chinese population control officials. She also
gave varying responses as to whether she and her family were able to pay those fines and
whether the fines, in fact, had been paid.
Beyond just these inconsistent answers, the IJ found that Ni’s demeanor and
responsiveness damaged her credibility. On multiple occasions, the IJ had to warn her to answer
the question she was asked, even when it was her own attorney conducting the examination.
Indeed, the IJ went the extra mile in repeatedly asking Ni if she understood the translation in
order to confirm that was not the cause of the difficulty.
Finally, the IJ noted that his adverse credibility determination with respect to Ni was
partially based on her having traveled to the United States twice under her own passport in the
2
The Immigration and Nationality Act defines a “refugee” as “a person who is unable or
unwilling to return to her home country because of past persecution or a ‘well-founded fear’ of
future persecution ‘on account of race, religion, nationality, membership in a particular social
group, or political opinion.’” Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010)
(quoting 8 U.S.C. § 1101(a)(42)).
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spring of 2010. The IJ found this travel implausible if, as Ni claims, she was arrested and
detained a mere nine months before for attending a house church and was still purportedly being
pursued by family planning officials. The BIA affirmed this finding, noting that DHS had
provided evidence indicating that the name of an individual detained at an underground church
meeting in China would likely be entered into a government security database.
The BIA reviewed the IJ’s decision that Ni lacked credibility for error and found none. A
reasonable adjudicator would not be compelled to conclude differently.
B. Corroboration
Even if an asylum applicant’s testimony has been found credible, an IJ may still require
corroborative evidence from the applicant unless he or she cannot reasonably obtain it. See
Urbina-Mejia v. Holder, 597 F.3d 360, 367 (6th Cir. 2010); see also 8 U.S.C. §
1158(b)(1)(B)(ii). In this case, the IJ indicated he would have expected a statement from Ni’s
husband, who allegedly was forced to undergo a vasectomy and who is in regular contact with Ni
by telephone. Also, the IJ would have expected a statement from Ni’s mother-in-law, who
interacted with the family planning officials looking for Ni and allegedly paid some of the
various fines that had been assessed against the family.
The BIA affirmed the lack of corroboration finding, citing Lin v. Holder, to support its
conclusion that the IJ’s expectation of statements from Ni’s husband and mother-in-law was
reasonable. 565 F.3d 971, 977–78 (6th Cir. 2009).
In her brief to this court, Ni does not address the substance of the BIA’s findings with
respect to corroboration. Instead, she simply argues that since the IJ should have found her
credible, there is no need for corroboration. The government argues this response waives Ni’s
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argument about corroboration and, furthermore, that her failure to address the substance is fatal
to her petition since corroboration can be required even when an applicant is deemed credible.
Even if we assume Ni’s argument is not waived, the IJ’s expectation about the
availability of corroboration in this case is reasonable. In her testimony, Ni said she speaks often
with her husband in China and also remains in contact with her mother-in-law, with whom her
husband and children live. Statements from either or both of these individuals could have
substantiated many of Ni’s claims, yet no explanation was offered as to why they were
unavailable to provide evidence.
C. Future Persecution
Ni asserts that it is more likely than not that she will be persecuted if she returns to China.
Her basis for this claim stems primarily from her continued desire to practice Christianity.
Although the BIA assumed for the sake of argument that Ni had established herself as a
practicing Christian, it nevertheless found her claims too speculative to prevail since objective
evidence indicates that the Chinese government’s tolerance of unsanctioned Christian groups
varies. In particular, the BIA cited the U.S. State Department’s profile on conditions in China
which noted that “[u]nregistered or unsanctioned religious and spiritual groups – including
Protestant groups, [and] the ‘underground’ Catholic church … – experience differing degrees
[of] official interference and harassment, with the degree of restriction varying significantly from
region to region.” Moreover, as recently as 2009, the State Department found that despite
continued efforts by the Chinese government to regulate religious groups, the “freedom to
participate in religious activities continued to increase in many areas.” U.S. State Dept. Human
Rights Report: China (2009). Finally, the BIA noted there was no evidence in the record that
Chinese authorities were aware of Ni’s practice of Christianity in the United States.
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The law requires more than mere assertions about potential future dangers; “the fear of
future persecution must be based on reasonably specific information showing a real threat to
individual persecution.” Dieng v. Holder, 698 F.3d 866, 872 (6th Cir. 2012) (emphasis added).
The BIA’s conclusion that Ni has not carried her burden to establish a well-founded fear of
future persecution is supported by substantial evidence.
D. Withholding of Removal & Protection under CAT
Ni’s petition for withholding of removal fails for the same reasons as her asylum claim.
“[A]n applicant seeking withholding of removal faces a more stringent burden than what is
required on a claim for asylum.” Urbina-Mejir, 597 F.3d at 365 (internal quotation marks
omitted). To qualify for withholding of removal, an applicant must demonstrate it is more likely
than not that, if removed to a designated country, her “life or freedom would be threatened” on
account of a protected ground. 8 U.S.C. § 1231(b)(3)(A). Thus, an applicant who fails to
establish her eligibility for asylum necessarily fails to establish her eligibility for withholding of
removal. Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006) (citing Allabani v. Gonzales, 402
F.3d 668, 675 (6th Cir. 2005)). Here, since Ni has not established she is eligible for asylum, she
likewise cannot show eligibility for withholding of removal.
Ni’s claim for protection under CAT also fails. The BIA affirmed the IJ’s adverse
credibility determination and Ni’s claims are based on the same circumstances alleged in her
asylum application. Thus, for the reasons given above, there is substantial evidence supporting
the BIA’s determination that Ni has not shown it is more likely than not that she will be tortured
upon returning to China. See Ben Hamida v. Gonzales, 478 F.3d 734, 741–42 (6th Cir. 2007).
IV.
Petition for review of the BIA’s decision is DENIED.
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