Li, Feng v. Mukasey, Michael B. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 8, 2007
Decided October 29, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-2500
FENG LI, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A95-305-515
PETER D. KEISLER, Acting
Attorney General of the United
States,
Respondent.
ORDER
Feng Li, a native of China, petitions for review of an order of the Board of
Immigration Appeals. Li lawfully entered the United States in November 2001.
After he overstayed his visa, he requested asylum, withholding of removal, and
relief under the Convention Against Torture on the ground that he had been
persecuted by Chinese authorities because he was a Christian and, if returned to
China, would face future persecution. An Immigration Judge denied Li’s
application, finding that Li was not credible. The Board of Immigration Appeals
affirmed. We deny Li’s petition for review.
No. 06-2500 Page 2
Li attached to his asylum application a handwritten personal statement
reporting that he had been arrested, detained, interrogated, beaten, and had lost
his job teaching music because he practiced Christianity. The key incident in his
narrative occurred in August 2001, when he and a small group of Christians
assembled at a friend’s home in the southern city of Guilin to sing and pray.
According to Li, their gathering was interrupted when police arrived and accused
them of operating an “underground and unregistered house church.” Li asserted
that the police arrested all attendees and took them to the local public security
bureau detention station, where, Li claims, he was held for 15 days. According to
Li, while he was in detention, the police questioned him on three occasions
concerning the church’s operation and the identity of its organizers. On each
occasion, the police also beat him, striking him with a rubber baton and kicking
him, resulting in lacerations to his hands. He claimed that he was released after
paying a substantial fine and subsequently was fired from his job.
At the removal hearing, Li testified about his claimed persecution and his
flight from China to the United States. Li called one witness, Wei Kai, who testified
that she knew Li in Guilin and had attended church functions with him there. She
further testified that a friend in her church group in Guilin told her that Li had
been arrested for participating in a house-church group and was forced to pay a fine
to secure his release.
The IJ denied asylum, finding Li’s testimony incredible for a litany of reasons
and thus disbelieving that he was detained, interrogated, and beaten, as he
claimed. First, the IJ was troubled because Li’s passport was issued during the
time period he claimed to be in detention, and the IJ reasoned “[I]t is clear that the
respondent could not be in custody for 15 days as he asserted.” Second, the IJ noted
that Li conceded he lied to obtain his U.S. visa by misstating his reason for visiting
the United States, his job prospects, and his financial status. Third, the IJ found
significant that Li’s testimony that he had been detained at the “Jinji Lin” detention
center conflicted with the English translation of his personal statement, which
identified the center as the “Heping” district detention center. Fourth, the IJ found
that Li could not explain why his visa was dated October 15, 2001, when he claimed
to have obtained it on October 2. Fifth, the IJ thought that there was confusion as
to whether Li received written notice of his employment termination in China.
Sixth, the IJ believed that Li tried to “embellish his stated religious belief,” noting
that Li “clearly” had not regularly attended church and doubting whether Li was
“truly interested in coming to the United States because of any religious
persecution.” Seventh, the IJ concluded that Li exaggerated his wife’s persecution
in China because he first testified that she had been demoted and later testified
that she had been fired. Additionally, the IJ found that Li failed to produce
corroborating documents that he left in China. The BIA adopted and affirmed the
IJ’s decision.
No. 06-2500 Page 3
Li challenges the IJ’s credibility determination, arguing that the
inconsistencies identified by the IJ are, at most, minor. Because the BIA
summarily affirmed, we review the decision of the IJ. See Diallo v. Gonzales, 439
F.3d 764, 765 (7th Cir. 2006). We give the IJ’s credibility determinations a high
degree of deference “so long as they are supported by specific cogent reasons that
bear a legitimate nexus to the finding.” See Shmyhelskyy v. Gonzales, 477 F.3d 474,
479 (7th Cir. 2007). Even though we might have reached a different result, we will
uphold the IJ’s adverse credibility determination as long as it is supported by
substantial evidence in the record, see Giday v. Gonzales, 434 F.3d 543, 553 (7th
Cir. 2006), and will reverse only if Li demonstrates that the record compels it, see
Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006).1 The IJ’s conclusion, however,
must be supported by specific, cogent reasons that bear a legitimate nexus to the
determination, see Giday, 434 F.3d at 550. Any discrepancy or inconsistencies in an
alien’s testimony can support an adverse credibility finding, but only when they go
to the heart of the applicant’s claim, see Adekpe v. Gonzales, 480 F.3d 525, 531 (7th
Cir. 2007).
Two factors on which the IJ relied find support in the record and provide a
basis for the adverse credibility determination. First, Li’s passport bore a stamp
indicating that it was issued on a date Li claimed he was detained. This
discrepancy caused the IJ to disbelieve the central elements of Li’s story—that Li
was arrested, imprisoned for 15 days, and beaten. Although Li explained that he
paid a service to obtain the passport and did not know that how the service
operated, he could provide no evidence to corroborate the dates of his detention, and
the IJ was entitled to find his explanation unpersuasive and conclude that the
evidence pointed to a different explanation—that Li was lying. See Krouchevski v.
Ashcroft, 344 F.3d 670, 673 (7th Cir.2003).
Second, Li admitted to fabricating documents to obtain his U.S. visa. It is
within the IJ’s discretion to determine that an asylum applicant who lied to
consular officials is lying again in his application for asylum. See Alsagladi v.
Gonzales, 450 F.3d 700, 701-02 (7th Cir. 2006); but see Dong v. Gonzales, 421 F.3d
573, 578-79 (7th Cir. 2005) (false documents used only to gain entry to the United
States with no bearing on alleged persecution not valid basis for adverse credibility
determination). Li lied in his visa application about his purpose for travel to the
1
Because Li petitioned for asylum in 2002, his case is not affected by the
revised credibility standards of the REAL ID Act of 2005, see Pub. L. No. 109-13, 119
Stat. 231. The new standards apply only to petitions for asylum made on or after May
11, 2005. Id. at § 101(h)(2). See also Diallo, 439 F.3d at 766 n.l; Dawoud v. Gonzales,
424 F.3d 608, 613 (7th Cir. 2005).
No. 06-2500 Page 4
United States, his job status, and the amount of money in his bank account, and the
it was within the IJ’s discretion to determine that he lied again about being
persecuted for his religious beliefs in China.
Most of the inconsistencies on which the IJ anchored his adverse credibility
determination, however, were either easily explained or immaterial to Li’s claim of
persecution. First, Li adequately explained the discrepancy in the name of the
district of the detention center where he was held, and as we have observed,
“credibility determinations should not be based upon easily explained
discrepancies.” Adekpe, 480 F.3d at 531; Giday, 434 F.3d at 551. The IJ ignored
Li’s explanation that the personal statement as he wrote it—in Chinese—never
identified the name of the detention center’s district, let alone mentioned Heping.
And this court has repeatedly admonished immigration judges to be sensitive to the
possibility of misunderstandings caused by the use of translators. See Iao v.
Gonzales, 400 F.3d 530, 534 (7th Cir. 2005) (collecting cases); see also Tun v.
Gonzales, 485 F.3d 1014, 1029-30 (8th Cir. 2007) (unfair for IJ to rely on
inconsistencies in testimony on the location of torture when there was an indication
they were caused by translation error).
Second, the date that Li received his visa does not go to the heart of his
asylum claim. See Tandia v. Gonzales, 487 F.3d 1048, 1053 (7th Cir. 2007); Hanaj
v. Gonzales, 446 F.3d 694, 698, 700 (7th Cir. 2006). Even though Li could not
explain why his visa bore a date different from the day he claimed to have acquired
it, at most, this inconsistency was “trivial” and “superficial” and cannot form the
basis of an adverse credibility determination. See Tadesse v. Gonzales, 492 F.3d
905, 910 (7th Cir. 2007); Adekpe, 480 F.3d at 531.
Third, there is no basis in the record to support the IJ’s finding that Li
testified inconsistently as to whether he received written notice about his discharge
from his music-teaching job. Li consistently testified that he received no written
notice of his termination and the only written notice that he saw was the letter that
the Bureau of Education addressed to the school and that a school official showed,
but did not give, to him.
Fourth, there is also no basis for the IJ’s conclusion that Li embellished his
claim by testifying that he frequently attends church. Though his witness testified
that she saw Li at church in Los Angeles only in July 2002, this is consistent with
Li’s testimony that he constantly travels around the country looking for work. The
IJ did not explain why he discounted Li’s testimony that he goes to church when he
is able, occasionally attends English services, and prays on his own at home. In
any event, the frequency of his church attendance has nothing to do with whether
he was persecuted for his religious beliefs in China. See Huang v. Gonzales, 403
F.3d 945, 950 (7th Cir. 2005).
No. 06-2500 Page 5
Fifth, the IJ’s finding that Li embellished his testimony about his wife’s
employment was based on a trivial inconsistency—Li testified first that his wife had
been demoted and later that she had been fired. And the IJ did not say why he
disbelieved Li’s explanation—that he had not thought to discuss his wife’s discharge
when first questioned about her. See Adekpe, 480 F.3d at 531; Giday, 434 F.3d at
551.
Although most of the IJ’s reasons for finding Li incredible were not based on
substantial evidence, the discrepancy regarding the issuance of Li’s passport and
the falsified documents he prepared to obtain his visa were substantive reasons for
the IJ to find him incredible, and they provide a sufficient basis for us to uphold the
adverse credibility determination. See Huang v. Gonzales, 453 F.3d 942, 947 (7th
Cir. 2006). And, although we might have reached a different conclusion, we cannot
overturn an IJ’s credibility determination just because substantial evidence would
support an alternate finding. See Feto, 433 F.3d at 912.
We have considered many cases where asylum applicants, particularly
Chinese applicants, gain entry into the United States by tapping into a black
market network of brokers, smugglers, and corrupt government officials to obtain
falsified or fraudulent travel documents. See, e.g., Jiang v. Gonzales, 485 F.3d 992,
996 (7th Cir. 2007). In most cases, the IJ has no way of knowing the practices for
obtaining travel documents in these countries and thus does not have sufficient
information to determine whether an asylum applicant who has used false travel
documents is lying about claimed persecution. We urge the Department of Justice
to consider the issue of what weight an IJ should give to falsified or fraudulent
travel documents when determining an asylum applicant’s credibility and to
articulate a standard that would assist the IJs in their analyses.
But in this case, the IJ simply did not believe that Li was arrested, detained,
and persecuted for his religious beliefs. And the IJ acted within his discretion in
drawing this conclusion based on discrepancy between the date Li’s passport was
issued and the dates he claimed he was detained and on Li’s admission that he lied
to U.S. consular authorities when he obtained his visa. We therefore DENY Li’s
petition for review.