Meixiang Cui v. Merrick B. Garland ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2177
MEIXIANG CUI,
Petitioner,
v.
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A201-004-428
____________________
SUBMITTED NOVEMBER 30, 2022 * — DECIDED JUNE 16, 2023
____________________
Before WOOD, JACKSON-AKIWUMI, and LEE, Circuit Judges.
LEE, Circuit Judge. Meixiang Cui petitions for review of the
denial of her application for asylum, withholding of removal,
and protection under the Convention Against Torture. The
* We granted the joint motion to waive oral argument, and the appeal
is therefore submitted on the briefs and the record. FED. R. APP. P.
34(a)(2)(C).
2 No. 22-2177
immigration judge found that Cui was not credible due to her
inconsistent and evasive testimony. The Board of Immigra-
tion Appeals affirmed. Because substantial evidence supports
the adverse credibility determination, we deny Cui’s petition
for review.
I. Background
A. Factual Background
Cui, a 52-year-old woman, is a citizen of China. In April
2011, she entered the United States on a temporary business
visa. In October 2011, Cui filed an application for asylum, see
8 U.S.C. § 1158, and withholding of removal, see id.§ 1231(b)(3), under the Immigration and Nationality Act. She
also applied for protection under the Convention Against
Torture, see 8 C.F.R. § 1208.16(c).
In her application, Cui asserted that Chinese officials had
previously forced her to undergo two involuntary abortions,
and she feared that authorities would forcibly sterilize her if
she returned to China. Cui submitted an affidavit in support
of her application. According to the affidavit, Cui gave birth
to her only child in April 1999. Family-planning officials then
forced Cui to insert a contraceptive ring (also called an intra-
uterine device, or an IUD). Cui secretly removed this IUD in
2003. In early 2004, Cui became pregnant again, but officials
forced her to undergo an abortion and insert another IUD.
The affidavit did not clarify whether Cui removed this IUD.
But Cui became pregnant again in 2010. When Cui was five
months pregnant, family-planning officials discovered the
pregnancy and forcibly took her to the hospital, where doc-
tors induced a stillborn birth. The officials also ordered that
No. 22-2177 3
Cui be sterilized in six months. Before she could be sterilized,
Cui fled to the United States.
In addition to submitting this affidavit, Cui also provided
an “outpatient certificate” from “Central Hospital of Fushun”
as part of her asylum application. The certificate states that
Cui had an “induced abortion” on November 8, 2010, and in-
cluded a suggestion that Cui rest for one month.
After Cui filed her asylum application, the government
commenced removal proceedings. In March 2012, Cui ap-
peared before an immigration judge in Chicago and conceded
removability as charged. The judge scheduled a hearing as to
her asylum application, request for withholding, and request
for relief under the Convention Against Torture for February
23, 2015.
This February 2015 hearing ended up focusing on Cui’s
activities in the United States, rather than her claimed perse-
cution in China. That is because a background check revealed
that in 2011, Cui had been arrested in Minnesota—a fact that
Cui had not disclosed to the immigration judge. Additionally,
Cui had received two citations in 2012 for an incident at a
massage spa in Oklahoma. Although she disclosed these cita-
tions to the judge, she did not provide much documentation
about them. The immigration judge therefore requested a full
record of both incidents and scheduled another hearing. Be-
fore that hearing occurred, Cui encountered more legal trou-
bles. In 2017, she pleaded guilty to a misdemeanor offense of
running a massage spa without a license in Missouri.
On December 10, 2018, Cui finally had her merits hearing.
At that hearing, Cui largely repeated the claims that she had
made in her 2011 affidavit. Cui testified that at some point
4 No. 22-2177
after giving birth to her only child, family-planning officials
forced her to insert an IUD, which she had removed in 2003
at a private clinic. Cui became pregnant in early 2004, but fam-
ily-planning officials forced her to have an abortion and insert
another IUD. Cui testified that she had this second IUD re-
moved at the same private clinic where she went for the first
removal. When the government pointed out that she did not
include this detail in her affidavit, Cui said, “I don’t remem-
ber why I didn’t put it in. I may have overlooked it.”
Cui also described her second abortion at the hearing. She
testified that the abortion happened at “Fushun City Number
Four Hospital.” When the government noted that her outpa-
tient certificate said the abortion occurred at “Central Hospi-
tal Fushun,” Cui explained that she may have made a mistake
because it was so long ago. Cui additionally confirmed that,
as noted on the outpatient certificate, the doctor had told her
she needed to rest for a month after the abortion; according to
the doctor’s instructions, she was supposed to “stay bedrid-
den” during this time. Cui said that she “kind of” rested dur-
ing this month. Concerning the outpatient certificate, Cui also
testified that she did not receive the certificate directly from
the hospital after her abortion, but from a friend who obtained
the certificate after Cui was already in the United States.
Next, Cui testified about her entry into the United States.
Cui explained that, in February 2011, she contacted a smug-
gler to help get her into the United States. Cui testified that
this was the first time she had ever applied for a visa. When
the government pointed out that she had applied for a visa in
November 2010, Cui clarified that she remembered applying
once and then applying again after the first one was rejected.
Cui also confirmed that she went in for an interview
No. 22-2177 5
(presumably to the United States Embassy) on November 30,
2010, apparently as part of her first application. This interview
was within one month of her second abortion, when she was
supposed to be on bedrest.
Finally, Cui testified about her activities in the United
States—namely, her work history, residences, and criminal
history. According to Cui’s asylum application, she had lived
in Chicago from her arrival to the United States in April 2011
until she submitted her application in October 2011. For her
December 2018 hearing, Cui submitted a document listing her
residences and work history, but only beginning in January
2012. According to that document, Cui lived in Oklahoma and
Missouri from 2012 to the present; the document did not state
that Cui had lived in Chicago in 2011 or any time afterwards.
At the hearing, Cui testified that she currently lives in Chi-
cago, but also said that she only comes to Chicago for short
periods of time, when she has “things” to take care of in the
city. When the immigration judge asked Cui about where she
lived in Chicago, Cui could not provide a full address.
Cui also testified about each of her run-ins with the law in
this country. When asked about her 2011 arrest in Minnesota,
Cui first denied that she was ever arrested. She then admitted
that she was initially charged with a crime, but insisted that
the situation was a misunderstanding, as the police were in-
vestigating the massage spa where she happened to be. Cui
never provided any documentation concerning this arrest, de-
spite the immigration judge’s earlier instruction to do so. As
for her two Oklahoma citations from 2012, Cui testified that
those citations arose when a customer at her sister’s massage
spa accused Cui of providing massages without a license. Cui
then denied working at her sister’s spa at the time (instead,
6 No. 22-2177
she claimed to be staying there temporarily) and denied
providing the customer a massage (though she admitted to
leading him to a different room in the spa). Finally, Cui ad-
mitted that she ran a spa without the proper licensing, which
was the conduct underlying her Missouri misdemeanor from
2017. But Cui again denied culpability, explaining that she did
not know she needed a state license in addition to a local li-
cense.
B. Agency Decision
On December 10, 2018, the immigration judge issued an
oral decision denying all of Cui’s claims for immigration re-
lief, largely because her testimony was not credible. To sup-
port the adverse credibility determination, the judge pointed
to five inconsistencies: (1) Cui’s 2011 affidavit did not mention
that she had her second IUD removed at a private clinic, even
though she testified to this effect at the hearing; (2) the name
of the hospital where she had her second abortion in 2010 was
different on the outpatient certificate than what she claimed;
(3) Cui testified that she first applied for a visa shortly after
she had contacted the smuggler in February 2011, but in fact
she had filed a visa application in November 2010, when she
was supposed to be on bedrest; (4) Cui did not testify truth-
fully about where she had lived in the United States, falsely
claiming to have lived in Chicago; and (5) Cui did not testify
truthfully about her criminal activities in the Unites States.
Additionally, the immigration judge concluded that Cui had
failed to sufficiently corroborate her claim with credible evi-
dence. 1
1 The immigration judge also provided two alternative grounds for
denying asylum: that Cui had failed to provide documentation of her
No. 22-2177 7
The Board of Immigration Appeals issued a written opin-
ion, affirming the immigration judge’s “adverse credibility
determination, as it [wa]s not clearly erroneous.” In doing so,
the Board highlighted most (but not all) of the inconsistencies
that the judge relied upon when making this finding. The
Board also affirmed the immigration judge’s conclusion that
Cui had failed to provide sufficient corroborating evidence. 2
II. Legal Framework
A. Claim for Asylum
As noted, Cui applied for asylum, withholding of removal,
and protection under the Convention Against Torture. We fo-
cus on her claim for asylum because the burden of establish-
ing asylum is less stringent than the burden of establishing
her other claims. Alvarenga-Flores v. Sessions, 901 F.3d 922, 926
(7th Cir. 2018). Thus, if Cui cannot establish eligibility for asy-
lum, her remaining claims fail as well. Id.The Attorney General has discretion to grant asylum to an
individual who qualifies as a “refugee,” meaning someone
“who is unable or unwilling to return to … [the country of her
nationality] because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, member-
ship in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A); see id. § 1158(b)(1)(A). By statute, “a
Minnesota arrest, and that the judge would deny asylum as a matter of
discretion. The Board did not affirm on these alternative grounds, and so
we do not consider them either.
2 Additionally, the Board concluded that Cui’s evidence about the
general human rights conditions in China did not establish relief from re-
moval. Cui did not challenge this on appeal, and so any argument con-
cerning country conditions is waived.
8 No. 22-2177
person who has been forced to abort a pregnancy or to un-
dergo involuntary sterilization … shall be deemed to have
been persecuted on account of political opinion.” Id.
§ 1101(a)(42)(B). If an asylum applicant establishes past per-
secution, “a presumption arises that [she] also has a well-
founded fear of future persecution for the same reason.” Yi
Xian Chen v. Holder, 705 F.3d 624, 628 (7th Cir. 2013); see
8 C.F.R. § 208.13(b)(1). 3
The applicant bears the burden of establishing that she is
a qualifying refugee. 8 U.S.C. § 1158(b)(1)(B)(i). “In some
cases, the applicant may carry the burden through testimony
alone, but only if the immigration judge finds the testimony
credible and persuasive.” Cojocari v. Sessions, 863 F.3d 616, 620
(7th Cir. 2017) (citing 8 U.S.C. § 1158(b)(1)(B)(ii)).
The REAL ID Act of 2005 governs how an immigration
judge makes credibility determinations. When making an ad-
verse credibility finding, the judge may rely on any inconsist-
encies in the applicant’s testimony, not just inconsistencies at
the “heart” of her claim. Cojocari, 863 F.3d at 620 (quoting
8 U.S.C. § 1158(b)(1)(B)(iii)). At the same time, the immigra-
tion judge must “distinguish between inconsistencies … that
are material and those that are not.” Krishnapillai v. Holder,
563 F.3d 606, 617 (7th Cir. 2009). Trivial inconsistencies or in-
nocent mistakes cannot support an adverse credibility
3 Where the applicant establishes past persecution (and therefore is
entitled to a presumption of well-founded fear of future persecution), the
burden of proof shifts to the government to rebut this presumption by a
preponderance of the evidence. 8 C.F.R. § 208.13(b)(1); see Xiang v. Lynch,
845 F.3d 306, 309–10 (7th Cir. 2017). Cui did not make any argument con-
cerning the burden-shifting framework on appeal and, thus, any such ar-
guments are waived.
No. 22-2177 9
determination. See Cojocari, 863 F.3d at 622 (remanding where
most of the purported inconsistencies were “so trivial or be-
nign that they cast no reasonable suspicion on the substance
of [the applicant’s] testimony”); Chun Sui Yuan v. Lynch,
827 F.3d 648, 656 (7th Cir. 2016) (remanding where the pur-
ported inconsistencies were “either so easily explained or so
trivial as to call into doubt the Board’s decision”). Finally, “an
adverse credibility finding must be supported by specific and
cogent reasons, and the judge must consider explanations of-
fered for gaps and inconsistencies.” Santashbekov v. Lynch,
834 F.3d 836, 839 (7th Cir. 2016).
B. Scope of Review
“Where the Board of Immigration Appeals agrees with the
immigration judge’s decision but supplements that decision
with its own analysis, as it did here, we review both the
underlying decision and the Board’s additional reasoning.”
Cojocari, 863 F.3d at 621. We “consider not only those aspects
of the immigration judge’s decision that the Board chose to
emphasize but also those findings that the Board implicitly
endorsed.” Id. at 621 n.2.
In this case, the Board affirmed the immigration judge’s
credibility and evidentiary findings. In her petition for this
court’s review, Cui focuses almost entirely on the adverse
credibility determination. She spends only a single sentence
on the immigration judge’s conclusion that her evidence did
not sufficiently corroborate her account; this sentence con-
cedes that Cui’s evidence was “limited” and provides no rel-
evant authority to argue that the evidentiary findings were in
10 No. 22-2177
error. 4 Thus, any challenge to the evidentiary findings is
waived, see Shipley v. Chi. Bd. of Election Comm’rs, 947 F.3d
1056, 1063 (7th Cir. 2020) (“Arguments that are underdevel-
oped, cursory, and lack supporting authority are waived.”),
and we limit our consideration to the immigration judge’s ad-
verse credibility determination.
Our review of this determination is deferential. We uphold
the immigration judge’s factual findings so long as they are
supported by substantial evidence. Santashbekov, 834 F.3d at
839. This is particularly true for credibility findings, which are
overturned only in “extraordinary circumstances.” Id. (quot-
ing Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004)).
III. Analysis
This is not an “extraordinary” case where the adverse
credibility determination should be overturned. Although not
all of the immigration judge’s reasons for discounting Cui’s
testimony are compelling, the judge’s ultimate determination
was supported by substantial evidence.
Most significantly, the immigration judge found that Cui’s
testimony about her time in the United States—including
where she lived and her criminal record—was not truthful or
forthright. For instance, in both her 2011 asylum application
and at her immigration hearing, Cui stated that she lived in
Chicago, but the immigration judge concluded that she never
lived there. On appeal, Cui argues that this was in error,
4 Instead, Cui cites several decisions by the Board confirming that
forced sterilization and forced abortion constitute persecution on account
of political opinion. This does not address the immigration judge’s con-
clusion that her evidence failed to sufficiently corroborate her claim that
she underwent a forced abortion.
No. 22-2177 11
because she simply testified that she had lived in various
states for brief periods and always maintained her residence
in Chicago. But the immigration judge’s finding was sup-
ported by substantial evidence: Cui could not list her Chicago
address, testified that she only comes to Chicago when she
has business there, and did not list Chicago on the document
describing her prior residences.
The immigration judge’s discussion of Cui’s criminal rec-
ord was also reasonable. Cui had multiple encounters with
the law during her time in the United States (all related to im-
proper or unlicensed massage work), but denied any culpa-
bility at the immigration hearing regarding the Oklahoma ci-
tations and the Missouri misdemeanor. Furthermore, Cui tes-
tified inconsistently about whether she had been arrested in
Minnesota and failed to submit any documentation for that
arrest (despite instructions from the immigration judge to do
so). On this record, we cannot fault the immigration judge for
being troubled by Cui’s refusal to “admit to any wrongdoing”
regarding her Oklahoma citations, nor the judge’s conclusion
that Cui’s explanations for her criminal record lacked credi-
bility. Cf. Tawuo v. Lynch, 799 F.3d 725, 728 (7th Cir. 2015)
(“When caught in what appeared to be a lie, [the applicant]
provided an unconvincing explanation. The [immigration
judge] was well within his rights to regard this as evidence of
a lack of credibility.”). Although Cui continues to insist that
she testified about her criminal history truthfully, she merely
reiterates the explanations that she provided to the immigra-
tion judge. We will not disturb the judge’s rejection of her ex-
cuses unless the record “compels” such a result, see
Zhakypbaev v. Sessions, 880 F.3d 881, 887 (7th Cir. 2018), and
Cui has not shown that the judge’s conclusions lack substan-
tial support in the record.
12 No. 22-2177
Next, the immigration judge cited Cui’s inconsistent testi-
mony about her visa application process. Although Cui ini-
tially testified that she first applied for a visa after contacting
a smuggler in February 2011, she later acknowledged that she
previously had applied for a visa in November 2010. Moreo-
ver, Cui had a visa interview in conjunction with this first ap-
plication. The immigration judge reasonably concluded that
Cui’s shifting and internally inconsistent story reflected an
overall lack of credibility. See Tawuo, 799 F.3d at 728 (appli-
cant’s changing story about his visa application process sup-
ported the adverse credibility determination). Cui’s argu-
ments on appeal do not alter this conclusion, and she offers
no compelling explanation for why she initially testified that
the smuggler-assisted application was her first.
The immigration judge also pointed out that, at the hear-
ing, Cui provided a slightly different name for the hospital
where she had her second abortion, as compared to the name
listed on her outpatient certificate. This minor mistake does
not necessarily cast doubt on Cui’s testimony. See Cojocari,
863 F.3d at 622 (immigration judges cannot place “outsized
importance” on “the sorts of minor details that are most vul-
nerable to the vagaries of human memory,” such as small mis-
takes about dates and times). But the immigration judge was
also concerned about the authenticity of the outpatient certif-
icate because Cui did not receive the certificate from the hos-
pital, but from a friend who mailed it to the United States after
the abortion allegedly occurred. On appeal, we defer to the
immigration judge absent “extraordinary circumstances,”
and we are not convinced that this record presents such cir-
cumstances.
No. 22-2177 13
We are less concerned by the last discrepancy in Cui’s
story. The immigration judge noted that Cui did not discuss
the removal of her second IUD in her affidavit, but she did
detail this incident at her hearing. On its own, this type of mi-
nor discrepancy between an applicant’s pre-testimony writ-
ten statement and more detailed testimony given at a live
hearing might not support an adverse credibility determina-
tion. See Cojocari, 863 F.3d at 624. But, in combination with the
other inconsistencies identified by the immigration judge, we
are satisfied that the judge’s determination was supported by
substantial evidence.
IV. Conclusion
In sum, the record shows that the immigration judge con-
sidered Cui’s testimony and evidence, pointed to several ma-
terial inconsistencies and instances of evasive or untruthful
testimony, and determined that Cui’s overall testimony
lacked credibility. These findings find substantial support in
the record. Thus, Cui has not met her burden to establish eli-
gibility for asylum. And, because the burdens for securing
withholding of removal or protection under the Convention
Against Torture are more stringent, those claims fail as well.
Accordingly, Cui’s petition for review is DENIED.