Xuejiao Deng v. Eric Holder, Jr. , 508 F. App'x 524 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1299n.06
No. 12-3496
FILED
Dec 18, 2012
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
XUEJIAO DENG, )
)
Petitioner, )
) ON PETITION FOR REVIEW OF
v. ) A FINAL DECISION OF THE
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
)
BEFORE: CLAY, GILMAN, and McKEAGUE, Circuit Judges.
PER CURIAM. Xuejiao Deng, a Chinese citizen, petitions through counsel for review of
an order of the Board of Immigration Appeals (BIA) dismissing her appeal from an immigration
judge’s (IJ) decision denying her applications for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT).
Deng was born in China in 1989. She bases her claims for relief on her allegation that she
was raped by two policemen in May 2006, when she went to the police station to inquire about her
mother, who had been arrested for attending an underground church. She became pregnant and
determined to keep the baby to prove that she had been raped. She reported the incident, but no
action was taken against the policemen. In November 2006, she was forced by government agents
to have an abortion, allegedly to cover up the fact that she had been raped, but the hospital gave her
a certificate documenting the abortion, which she kept as proof of her rape. She was dismissed from
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Deng v. Holder
her school, but she was able to obtain a valid student visa with which she entered this country in
March 2007 with her own passport, and attended the University of Oklahoma. In October of that
year she returned to China. She explained alternately that she missed her mother or that her mother
had an undisclosed illness. About a month after her return, she allegedly was called to the police
station and interrogated, but was allowed to leave because she had a cold and fever and the police
believed she was contagious. She was told not to leave her neighborhood without reporting to the
police. However, in December, she returned again to the United States, either due to her health or
because she feared further harassment by the police. She again used her own passport and student
visa, but when questioned as to how this was possible, she hinted that a friend of the family may
have helped her bypass customs. In her brief before this court, she alleges that she may have been
permitted to leave because she was a troublemaker. She did not continue her studies in the United
States, but applied for the above relief.
At the conclusion of Deng’s hearing, the IJ denied her requests for relief. The IJ found that
Deng’s rape was not persecution based on a protected ground, but instead a criminal act. The IJ
found Deng’s claim that she had undergone a forced abortion not credible. Furthermore, her claim
of fear of persecution if she returned to China was found not credible because she had previously
returned without incident other than a brief interrogation. On appeal, the BIA rejected Deng’s
argument that the IJ erred in finding her claim to have undergone a forced abortion not credible. It
also upheld the IJ’s finding that Deng’s return to China without significant problems undercut any
claim to a fear of persecution if she returns. One member of the BIA dissented without opinion.
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In her brief before this court, Deng reasserts her argument that the IJ erred in finding that her
claim of having undergone a forced abortion was not credible. She claims that she is eligible for
asylum and withholding of removal based on an imputed political opinion. She has abandoned her
claim for protection under the CAT. Additionally, she argues that she was denied due process at her
hearing due to problems with the interpreter.
Although Deng argues that the IJ never addressed the issue of whether she suffered past
persecution based on her imputed support of her mother’s participation in underground religious
services, the IJ did specifically address this issue and found that Deng never stated that her rape was
based on her mother’s religious activities, but rather that her mother’s arrest and Deng’s mission to
the police station merely provided the opportunity for the policemen to commit a criminal act. The
IJ specifically found that Deng had not established that a protected ground was the reason for her
rape. Criminal acts not based on a protected ground are not persecution. See Bonilla-Morales v.
Holder, 607 F.3d 1132, 1137 (6th Cir. 2010); Lumaj v. Gonzales, 462 F.3d 574, 577-78 (6th Cir.
2006).
Deng argues that interpreter problems denied her due process, citing Amadou v. INS, 226
F.3d 724, 726 (6th Cir. 2000). The transcript indicates that the interpreter in this case was at a
remote location, participating by video. Counsel for the government complained that the interpreter
was speaking too loudly, causing feedback. It appears that this counsel and interpreter had had
problems before, where government counsel complained that the interpreter was too quiet, and that
the interpreter was overcompensating on this occasion. The IJ was frustrated by the situation, and
discussed at length the budget problems involved in having the interpreters physically present.
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However, absent from any of this discussion or the transcript as a whole is any indication that Deng
and the interpreter were having trouble understanding each other. See Gishta v. Gonzales, 404 F.3d
972, 979 (6th Cir. 2005) (affirming an adverse credibility determination where interpreter problems
did not play “a significant part in the judge’s credibility determination”). We therefore conclude that
Deng has not established a denial of due process due to interpreter problems.
Deng’s principal argument is that the IJ erred in finding her claim of having undergone a
forced abortion not credible. We review the IJ’s credibility findings to determine whether they are
supported by substantial evidence. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004). Deng makes
two arguments regarding the credibility finding at issue here. First, she points out that the IJ relied
on her answers to two poorly worded questions by government counsel during cross-examination
in finding a contradiction in her story. First, counsel stated that Deng had requested the abortion
because she was an unmarried minor, and ended his statement with “is that not true?”, to which Deng
answered “Right.” Especially given that this question had to be translated into Mandarin, it is
difficult to know whether Deng was agreeing that counsel’s statement was true or not true. Later,
government counsel asked a compound question, whether Deng had requested an abortion and
whether the hospital gave her an abortion certificate, which she answered affirmatively. It is not
possible to be certain that Deng was agreeing with both parts of this question. Otherwise, in her
application, direct, and re-direct testimony, she consistently claimed that she had been forced to have
the abortion. Deng also points out that the BIA relied on Xiao Xing Ni v. Gonzales, 494 F.3d 260,
263 (2d Cir. 2007), in finding that abortion certificates are given only in cases where the abortion
was voluntary. Xiao Xing Ni based this conclusion on the 1998 State Department Country
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Conditions Report. However, the 2007 Report relevant in this case indicates that an abortion
certificate could be issued even where the abortion was not voluntary.
However, even discounting these two bases for finding Deng’s testimony incredible, there
were numerous inconsistencies and implausibilities in her story, as outlined above, which support
the finding of lack of credibility. See Abdurakhmanov v. Holder, 666 F.3d 978, 982-83 (6th Cir.
2012). Most importantly, Deng’s voluntary return to China, the lack of any persecution encountered
there, and her ability to return again to this country undercut her claim of fear of future persecution.
See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th Cir. 2005). We therefore conclude that,
despite the two arguments above, there was substantial evidence to support the IJ’s finding of lack
of credibility and, therefore, the denial of asylum. By failing to establish entitlement to asylum,
Deng necessarily failed to establish entitlement to withholding of removal. See Lin v. Holder, 565
F.3d 971, 979 (6th Cir. 2009). Finally, she has abandoned her claim regarding protection under the
CAT.
For all of the above reasons, the petition for review is denied.
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