Ni, Ji Cheng v. Gonzales, Alberto R. ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2005 *
Decided June 20, 2005
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2677
JI CHENG NI, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A77-354-460
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ORDER
Ji Cheng Ni, a native of China’s Fujian Province, entered the United States
without documentation in 2001. Upon his arrival at Los Angeles International
Airport (“LAX”), an asylum officer determined that he was removable but had a
credible fear of persecution or torture if returned to China. An Immigration Judge
subsequently found his testimony of persecution incredible and ordered him
removed to China. Ni appealed to the Board of Immigration Appeals, which
summarily affirmed the IJ’s decision. Ni petitions for review of the BIA’s order. We
affirm.
*
We granted the petitioner’s motion to waive oral argument. Thus, the appeal
is submitted on the briefs and the record. See FED. R. APP. P. 34(a), (f).
No. 04-2677 Page 2
Ni, who left China at the age of 21, arrived at LAX after snakeheads first
arranged his travel through Hong Kong, Indonesia, and Australia. At his credible-
fear interview, he gave a sworn statement, through an interpreter, that the Chinese
authorities closed his bookstore and that he feared persecution for selling Falun
Gong material. During the same interview, however, he also said that he had never
been employed. Attempting to verify his story, the asylum officer called a phone
number in China that Ni had given as his home number, and an individual
identified as Ni’s father answered. When asked through an interpreter if Ni “ever
owned a store of any kind,” Ni’s father reportedly replied, “[n]o, my son does not own
a store.” Confronted with this apparent inconsistency, Ni then stated that he had
not owned a bookstore and that he came to the United States to seek employment.
Ni subsequently applied for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”), asserting a fear of persecution
based on political opinion and specifically his sale of Falun Gong material. In that
application, Ni alleged that he “operated a store” where the police discovered he
was selling “Falungon [sic] stuff.” He went on to generally state that the police
tried to arrest him, but that neither he nor his family had actually been “accused,
charged, arrested, detained, interrogated, convicted and sentenced, or imprisoned”
in China.
At his removal hearing before the IJ, Ni recounted a different set of facts. He
revealed that his sister lived illegally in Maryland, contrary to a sworn statement
at the credible-fear interview that none of his relatives resided in the United
States. He also testified that the police arrested his parents and held them for ten
days while investigating their ties to Falun Gong, even though he explicitly denied
in his asylum application that family members had ever been arrested or detained.
Finally, he testified that he had lied to the asylum officer at his credible-fear
interview when he told the officer that he feared arrest in China for impregnating
his girlfriend. Ni added, “I was nervous and I was taught by the snakeheads what
to say.”
The IJ denied Ni’s application for asylum, largely on the basis of an implicit
adverse credibility finding. The IJ pointed to Ni’s inconsistent accounts of his
employment history in China and the alleged arrest and detention of his parents.
The IJ also faulted Ni for not providing any corroborating evidence, such as a
statement from his father or sister confirming that he sold Falun Gong material.
Finally, the IJ noted other inconsistencies in Ni’s statements, including the
apocryphal pregnancy of a girlfriend and his sister’s residency in the United States.
The BIA summarily affirmed the IJ’s opinion.
When, as it did here, the BIA adopts the decision of the IJ, that decision
becomes the final decision of the agency and will be affirmed if it is supported by
substantial evidence. Huang v. Gonzales, 403 F.3d 945, 948 (7th Cir. 2005).
No. 04-2677 Page 3
We will give substantial deference to an IJ’s adverse credibility finding that
is supported by “specific, cogent reasons” that “bear a legitimate nexus to the
finding.” Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir. 2004) (citations omitted).
Moreover, only “extraordinary circumstances” warrant overturning a credibility
finding, and reversal is not justified “simply because an alternate finding could also
be supported by substantial evidence.” See Capric v. Ashcroft, 355 F.3d 1075, 1087
(7th Cir. 2004) (internal quotation marks and citation omitted).
On appeal Ni challenges only the IJ’s denial of asylum and thus abandons
any arguments for withholding of removal and for relief under the CAT. See Lin,
385 F.3d at 750. In a cursory argument, Ni first challenges the IJ’s adverse
credibility finding, asserting that the IJ overemphasized “minor inconsistencies”
that “were sufficiently explained in other parts of the testimony.” Ni suggests, for
example, that varying understandings of words like “employment,” “operated,” and
“own” could explain his changing account regarding ownership of a bookstore.
The IJ, however, properly supported the adverse credibility finding. In
addition to questioning whether Ni actually sold Falun Gong material, the IJ
expressed skepticism regarding Ni’s job history in China and highlighted Ni’s
inconsistent statements regarding the alleged arrest and detention of his parents
and the reason he came to the United States. Although translation difficulties can
account for some inconsistencies in an alien’s testimony, see Iao v. Gonzales, 400
F.3d 530, 532 (7th Cir. 2005), Ni does not explain the numerous inconsistencies
(beyond whether he sold Falun Gong materials) among the accounts given in his
statement, application, and testimony. Indeed, “lying in a sworn statement is not
irrelevant to credibility.” See Balogun v. Ashcroft, 374 F.3d 492, 504 (7th Cir. 2004)
(upholding IJ’s adverse credibility finding when alien changed story after initial
sworn statement; changes related to basis for asylum and original misstatements
“were calculated attempts to mislead the immigration officials”). The IJ’s adverse
credibility finding—far from relying on minor inconsistencies—is supported by
specific and cogent reasons.
Ni’s second argument is that the IJ erred by basing the adverse credibility
finding on a lack of corroborating evidence. It is true that “the testimony of the
alien alone may be sufficient to sustain the burden of proof without corroboration.”
Capric, 355 F.3d at 1085-86 (internal quotation marks and citation omitted). But
Ni mistakenly presumes that a lack of corroboration compelled the IJ’s adverse
credibility finding. To the contrary, the IJ explained that Ni’s “story here before the
Court is negated by [inconsistences in] a sworn statement” and “his own application
for asylum.”
Finally, Ni raises the frivolous argument that the IJ improperly credited the
statement of the individual alleged to be his father without confirming the man’s
identity. Ni has not suggested to date that the individual in question was not his
father, but even if the IJ erred in crediting the alleged father’s statement (and it is
No. 04-2677 Page 4
not clear from his order that he did), the notable inconsistences upon which the IJ
relied in discrediting Ni justify the denial of his asylum application.
The decision of the BIA is AFFIRMED. The petition for review is DENIED.