Yiang, Hung Chang v. Gonzales, Alberto R. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 14, 2006
Decided October 2, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3680
HUNG CHANG YIANG, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A78 845 619
ALBERTO R. GONZALES,
Respondent.
ORDER
Hung Chang Yiang claims that he will be persecuted if forced to return to his
native China because he is a practitioner of Falun Gong. Yiang petitioned for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). The Immigration Judge found him ineligible for asylum because
he filed his application more than a year after entering the United States, see 8
U.S.C. § 1158(a)(2)(B), and denied him withholding of removal and relief under the
CAT largely because she did not believe that he had practiced Falun Gong. The
Board of Immigration Appeals adopted and affirmed the IJ’s decision. Yiang now
petitions for review of the denial of withholding. Because the IJ’s decision is
supported by substantial evidence, we deny the petition.
No. 05-3680 Page 2
I.
Yiang entered the United States with a fraudulent passport at O’Hare
International Airport in June 2001. At his airport interview, he told immigration
officers that he left his home in Fujian province because he was practicing Falun
Gong and was afraid he might be arrested. However, when asked if the Chinese
police knew he had “joined” the Falun Gong movement, he said they did not. He
also said that he had been practicing Falun Gong for only half a year.
Yiang remained in the custody of the INS (now the United States Citizenship
and Immigration Services (USCIS), a bureau of the Department of Homeland
Security) for about seventeen days. At the end of this period, he was given a
credible-fear interview. His statements during the credible-fear interview were
basically consistent with his testimony at the airport interview, but he added claims
that his “coworkers were arrested in April 2000,” and that he himself experienced
difficulty finding employment because of his association with Falun Gong. The
interviewer noted at the end of the interview form that “Applicant did not know 5
basic exercises,” and that he had explained that “because he was only a member for
one year he had not learned a lot.”
In October 2002, Yiang filed an application for asylum. In it he claimed that
he began to practice Falun Gong in May 1999 after an acute attack of a “stomach
problem” that had plagued him since childhood. The pain of that attack was so bad
that he fainted and had to be hospitalized. While he was in the hospital, he was
visited by several coworkers, one of whom claimed to have alleviated similar
stomach problems through practice of Falun Gong. This coworker, Xiaofeng Li,
invited Yiang to try the exercises for himself. From then on, said Yiang, he
practiced Falun Gong daily with Li at a local senior center, and his stomach
problems ceased to bother him.
At first he was able to practice freely, but in July 1999, according to Yiang,
the Chinese government banned Falun Gong. Even so, for a time, Yiang and the
others in his group continued to practice openly. Two months later Yiang and Li
were ordered by their employer to stop practicing. They were warned in November
1999 that they would lose their jobs if they did not stop, but they refused and were
fired that December. At the same time, according to Yiang, the government began
“repress[ing]” Falun Gong “viciously.” Yiang’s parents and sister would no longer
allow him to go to the practice site because they were afraid for him, and so he had
to practice at home. Yiang’s friend Li, however, continued to practice at a “secret
site” in a park. Sometimes he also went to Yiang’s home to practice with him.
In April 2000, Li and several of his fellow Falun Gong practitioners were
detained by the police. One of Yiang’s cousins who worked at a police station called
No. 05-3680 Page 3
to tell him that his friends had been interrogated and beaten. Yiang’s cousin was
worried that they might report that Yiang was practicing at home and encouraged
him to “get away.”
Yiang decided to do so. He hid at “a relative’s house” while his parents made
plans to send him “abroad.” With the help of his cousin, he obtained a passport and
left China in April 2001. He arrived in Chicago in June 2001, with a false
Taiwanese passport, which he claimed he was forced to purchase because he had
lost his original passport while traveling through Yugoslavia and Spain en route to
the United States.
At his hearing before the IJ, Yiang repeated essentially the same story, but
there were a few significant discrepancies. First, he told the IJ that he began to
practice Falun Gong in June 1998 rather than in May 1999 (and also, oddly enough,
that he was hospitalized for the acute attack of stomach pain in September 1998,
three months after he allegedly began to practice). Second, Yiang testified that
when he was practicing openly, he accompanied Li to practice at a local park; he
made no mention of the senior center that figured so prominently in his asylum
application. Third, Yiang claimed that Li was arrested in 2001 rather than 2000 as
he had claimed in both his credible-fear interview and his asylum application.
Finally, Yiang raised a new claim that police had come looking for him at his
parents’ home three weeks after Li’s arrest. (According to Yiang, the police did not
find him because he had already gone to hide at his grandmother’s house.)
The only evidence Yiang offered to corroborate any of this testimony was a
letter from his parents that recited his principal allegations. The letter also
asserted that Li remained in custody, and that the police “issued a wanted circular
for [Yiang] and actually came to our house several times to look for him.” Yiang’s
parents claimed that they had previously attempted to write letters for him to
verify his story but that their letters were “confiscated by the Chinese customs
office” because they exposed the “negative side” of the country.
The IJ rejected Yiang’s claim that his delay in filing his asylum application
for more than a year was excused by “extraordinary circumstances,”see 8 U.S.C.
§ 1158(a)(2)(D), and concluded that he was not eligible for asylum. The IJ also
denied him withholding of removal and protection under the CAT because she did
not believe that he was a practitioner of Falun Gong. She found his testimony
incredible because he had testified inconsistently about the date he began to
practice, and because he had been unable to describe the five basic movements of
Falun Gong at his credible-fear interview. In addition, she thought his claim
undermined by his failure to obtain any affidavit or witness testimony from any of
the persons with whom he allegedly practiced Falun Gong in Chicago. Finally, she
concluded that even if Yiang were credible, he could not have sustained his burden
No. 05-3680 Page 4
of proving a clear probability of persecution or torture because he failed to show
that his circumstances sufficiently resembled Li’s to justify an inference that he
would be targeted for similar treatment, and because he failed to point to anything
suggesting that the Chinese police sought him at his parents’ house in order to
punish him for practicing Falun Gong.
The BIA adopted and affirmed the IJ’s opinion, making it the final agency
determination for purposes of our review. Giday v. Gonzales, 434 F.3d 543, 547 (7th
Cir. 2006); Feto v. Gonzales, 433 F.3d 907, 911 (7th Cir. 2006).
II.
Persecution of practitioners of Falun Gong has been variously deemed
persecution on account of religion, imputed political opinion, and membership in a
particular social group, see Zhou v. Gonzales, 437 F.3d 860, 863 (9th Cir. 2006)
(imputed political opinion); Chen v. United States Dept. Of Justice, 426 F.3d 104, 114
(2d Cir. 2005) (religion and social group); Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir.
2005) (religion); Zhang v. Ashcroft, 388 F.3d 713, 719-20 (9th Cir. 2004) (per curiam)
(imputed political opinion and religion), but there is no question that practicing Falun
Gong is in one way or another protected. A petitioner for asylum, however, must have
a credible claim that he is a practitioner, and the IJ found that Yiang was not
sufficiently credible.
We review an adverse credibility finding for substantial evidence. Kllokoqi v.
Gonzales, 439 F.3d 336, 341 (7th Cir. 2005). The IJ’s finding is entitled to particular
deference, as long as it is supported by “specific, cogent reasons” with a “legitimate
nexus to the finding.” Id. (internal citation and quotation omitted); see Shtaro v.
Gonzales, 435 F.3d 711, 715 (7th Cir. 2006). To overturn a denial of asylum for lack
of credibility requires “extraordinary circumstances.”1 Huang v. Gonzales, 453 F.3d
942, 945 (7th Cir. 2006) (internal citation and quotation omitted).
There are no extraordinary circumstances here. Yiang first argues that the IJ’s
decision is unreasoned, for the reasons we set forth in Iao, 400 F.3d at 532-33.
Specifically, Yiang contends that the IJ (1) did not make a “clean” credibility
determination, (2) erred in discrediting him based on the discrepancies in the dates he
gave for beginning his practice, and (3) unreasonably assumed that he could obtain
corroborating evidence from his fellow Falun Gong practitioners in Chicago.
1
Our credibility analysis is unaffected by the passage of the REAL ID Act of
2005, see Pub. L. No. 109-13, 119 Stat. 231, which governs only cases in which the
petition for asylum was filed on or before May 11, 2005. Kwok v. Gonzales, 455 F.3d
766, 769 (7th Cir. 2006).
No. 05-3680 Page 5
But Iao is not an appropriate parallel. In that case we rejected all of the IJ’s five
reasons for denying the petitioner asylum. Moreover, the IJ’s opinion left us “in the
dark” as to why, in her view, the petitioner failed to carry her burden of proof. See Iao,
400 F.3d at 532-34. In this case it is clear that the IJ did not find Yiang credible
because she stated that he failed to convince her “of the bona fides of his membership
in this particular social group [Falun Gong practitioners].” In addition, we do not
agree with Yiang’s claim that the discrepancies in the dates he gave for beginning his
practice are too insignificant to support the adverse credibility finding. See id. at 532(criticizing IJ for relying on “trivial” inconsistencies). Discrepancies in date may be
trivial, see, e.g., Kwok, 455 F.3d at 769-70; Singh v. Gonzales, 439 F.3d 1100, 1108-09
(9th Cir. 2006); Daneshvar v. Ashcroft, 355 F.3d 615, 623 (6th Cir. 2004), but here the
IJ justified giving them weight by noting that, according to Yiang, the date he began
to practice Falun Gong marked a turning point in his life. At that time the stomach
problems that had plagued him since his childhood ended. And Yiang offered no
explanation for giving the differing dates. Further, while the IJ may have been
unreasonable in expecting Yiang to produce affidavits or other testimony from his
fellow Falun Gong practitioners in Chicago, see Iao, 400 F.3d at 534, we do not think
such an error would warrant reversal because of the strength of the other grounds for
the IJ’s determination.
Yiang next argues that the IJ erred in discrediting him because of his inability
to explain the five basic exercises of Falun Gong at his airport interview. These
exercises are critical because, as we noted in Iao, they are “the primary manifestation
of adherence to Falun Gong,” and “the heart” of its observance. See Iao, 400 F.3d at
531-32. Yiang does not dispute this, but he contends that under our opinion in
Balogun v. Ashcroft, 374 F.3d 492, 505 (7th Cir. 2004), the record of the interview is
unreliable because it “merely summarize[d] or paraphrase[d]” what transpired and did
not contain the exact words of the question he was asked about the five exercises. We
disagree. Balogun did not establish a categorical prohibition against reliance on such
a record; we simply cautioned that a summary record is generally “less reliable.” Id.And in this case the record contains an approximation of the question Yiang was asked
and the answer he gave, such that we are satisfied that the record is a meaningful
report of the exchange. In any event, Yiang has no basis for arguing that the record
is unreliable because he does not dispute the accuracy of its representations. See id.We uphold the IJ’s adverse credibility determination, and the petition for review
is DENIED.