Thile v. Garland

United States Court of Appeals
For the First Circuit
No. 20-1259
DORJEE THILE,
Petitioner,
v.
MERRICK B. GARLAND,*
U.S. Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch and Selya, Circuit Judges,
and Katzmann,** Judge.
Gary J. Yerman and The Yerman Group, LLC on brief for
petitioner.
Robbin K. Blaya, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Ethan P. Davis, Acting Assistant Attorney General, Civil Division,
and John S. Hogan, Assistant Director, Office of Immigration
Litigation, Civil Division, on brief for respondent.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Merrick B. Garland has been substituted for former
Attorney General William P. Barr.
**Of the United States Court of International Trade, sitting
by designation.
March 19, 2021
KATZMANN, Judge. Dorjee Thile seeks relief from removal
on the grounds of asylum, withholding of removal under the
Immigration and Nationality Act (INA), and protection under the
United Nations Convention Against Torture (CAT). He contends that
the Board of Immigration Appeals (BIA) erred in affirming an
Immigration Judge's (IJ) decision to deny his applications. He
bases his petition for relief on a claim that the BIA erroneously
disregarded his testimony and other evidence of his Chinese
citizenship. We deny Thile's petition for review.
I. DETERMINATION UNDER REVIEW
Thile arrived in the United States on February 9, 2010,
in Los Angeles, California. He was admitted to the United States
on an Indian passport with a temporary visitor visa obtained at
the United States embassy in Brisbane, Australia. On July 1,
2010, Thile applied for asylum, withholding of removal, and
protection under CAT. Thile completed an asylum interview on
August 10, 2010. The Department of Homeland Security thereafter
issued Thile a Notice to Appear, which alleged that he was a native
and citizen of India and charged him with removability for
remaining in the United States longer than his visa permitted.
Thile admitted the factual allegations and conceded the charge of
removability but denied that he was an Indian citizen. Rather,
he claimed that he was of Tibetan nationality with Chinese
citizenship.
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Thile's petition for review is based on the following
testimony by Thile and supporting information in his asylum
application: Thile stated that he was born and grew up in Kham,
Tibet. He was a farmer in Tibet and married his wife in 1992,
with whom he has three children. Because Thile was raised by an
uncle after his father passed away when Thile was a child, he
claimed he did not possess his birth certificate. Thile is a
Buddhist and claims that he was unable to freely practice his
religion because of the Chinese occupation of Tibet. Further, he
reported that his family faced discrimination based on their
opposition to the Chinese government's occupation of Tibet. He
testified that in August of 2002 he distributed flyers with his
friend that mentioned the Dalai Lama and freedom for Tibet. Thile
claims his friend was then arrested in connection with the flyer
distribution, and Thile decided to flee Tibet fearing arrest,
torture, and/or being killed by police. He first fled to Nepal,
and then further traveled to Darjeeling, India where his aunt
lived. He claims that he discarded his Chinese identity card
before entering India in order to avoid being deported.
Thile testified that he resided in India for more than
six years, from October 2002 to May 2009. He claims that he was
arrested in India on March 10, 2009, during a protest connected to
events in Tibet. He further claims he was detained for two days,
during which he was physically mistreated and threatened with
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deportation. Thile then decided to leave India but claims that
he did not possess a Chinese passport because the Chinese
government did not issue passports to Tibetans, and that he was
unable to obtain a passport from either Nepal or India. He
explained that he obtained a fraudulent Indian passport from a
broker so that he could travel to Australia. Thile remained in
Australia for nine months, during which time he obtained a visa
from the United States embassy using the same fake Indian passport
and based on documents indicating that he was an Indian citizen.
He then traveled to the United States, after which he claims that
he returned the Indian passport to the broker in India as arranged.
Thile moved to New York and then to Boston in 2013, where he
continues to participate in activities with the Tibetan community.
Based on this testimony and Thile's evidence, including
a photocopy of his Chinese household register, a photocopy of his
marriage certificate, a photocopy of his children's birth
certificates, a letter from the Office of Tibet in New York
certifying Thile as a Tibetan refugee, and evidence of country
conditions of Tibetans in China, on November 4, 2015, the IJ
granted Thile a continuance to obtain the original household
register or other original documents regarding his Chinese
citizenship so that he could meet his burden of proving his Chinese
citizenship. More than two years later, at his next hearing on
March 29, 2018, Thile newly provided only a Tibetan Green Book, a
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document issued in India indicating he was a Tibetan national, but
no evidence that he was a Chinese citizen. The IJ explained that
"the respondent [has not] produced any documentation to show that
he made any efforts to get these documents . . . . He simply has
not addressed this topic in terms of his submission to date."
Based upon the record and Thile's testimony, the IJ
determined that Thile had not proven that he is a Chinese citizen
without Indian citizenship, but rather that the record evidence
"tends to show that the respondent is a citizen of India and the
documents in the record do not support a finding that in India the
respondent has suffered either past persecution or has a well-
founded fear of future persecution." Further, the IJ determined
that because he had not established past persecution or a well-
founded fear of persecution in India, Thile did not meet the higher
burdens for withholding of removal or protection under CAT.
Thile appealed the IJ's ruling to the BIA, which affirmed
on all grounds. Specifically, the BIA concluded that the IJ
"correctly found that the respondent submitted insufficient
evidence to establish his Chinese citizenship in light of other
record evidence showing that he is a citizen of India," and that
the IJ did not err in determining that Thile did "not establish[]
past persecution or a well-founded fear of persecution" in India,
He now petitions for review of the BIA's decision.
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II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252 over this
timely appeal from a decision of the BIA following proceedings in
Boston, Massachusetts. "Judicial review of immigration cases
normally focuses on the final order of the BIA. But where, as
here, the BIA accepts the IJ's findings and reasoning yet adds its
own gloss, we review the two decisions as a unit." Moreno v.
Holder, 749 F.3d 40, 43 (1st Cir. 2014) (quoting Xian Tong Dong v.
Holder, 696 F.3d 121, 123 (1st Cir. 2012)). We consider questions
of law de novo. Ye v. Lynch, 845 F.3d 38, 42 (1st Cir. 2017). We
consider factual findings "under the deferential 'substantial
evidence' standard, reversing only if a 'reasonable adjudicator
would be compelled to conclude to the contrary.'" Castillo-
Diaz v. Holder, 562 F.3d 23, 26 (1st Cir. 2009) (quoting 8 U.S.C.
§ 1252(b)(4)(B)) (other citations omitted).
III. DISCUSSION
Thile applied for asylum and withholding of removal
under the INA and the CAT. Each applicant bears the burden of
proving that he or she meets the criteria for asylum and
withholding of removal. See 8 U.S.C. § 1158(b)(1)(B)(i)(stating
that applicant bears burden of proving qualification for asylum);
8 U.S.C. § 1231(b)(3)(C) (stating that alien bears burden of
proving withholding of removal); 8 C.F.R. § 1208.16(c)(2) (stating
that applicant bears the burden of proving eligibility for
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withholding of removal under the CAT). Our caselaw dictates that
this burden can be met by specific, credible testimony or by
"easily obtainable corroborating documentation" where "testimony
is not itself compelling." Chhay v. Mukasey, 540 F.3d 1, 6 (1st
Cir. 2008) (first citing Sela v. Mukasey, 520 F.3d 44, 46 (1st
Cir. 2008); then citing Eke v. Mukasey, 512 F.3d 372, 381 (7th
Cir. 2008); then citing Pan v. Gonzales, 489 F.3d 80, 83 (1st Cir.
2007); then citing Hayek v. Gonzales, 445 F.3d 501, 508 (1st Cir.
2006); and then citing REAL ID Act § 101(a)(3)). Even where the
petitioner is otherwise credible, we will uphold a decision of the
BIA where there are explicit findings that corroboration was
reasonable and the failure to provide corroboration was not
adequately explained. Id.; cf. Soeung v. Holder, 677 F.3d 484,
488–89 (1st Cir. 2012) (vacating dismissal of petition where BIA
made "no finding at all on the adequacy of Soeung's explanation
for failing to provide the required corroboration"). "Although
the threshold of eligibility for withholding of removal is similar
to the threshold for asylum, withholding requires a higher
standard." Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009)
(citation omitted).
Thile alleges various errors on the part of the BIA in
affirming the IJ's decision. First, he contends that the BIA
erred in affirming the IJ's determination that he did not meet his
burden of proving himself a citizen of China and for not presuming
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or addressing the credibility of his testimony. Second, Thile
argues that he is eligible for asylum based on a well-founded fear
of persecution in both China and India. We address each of these
contentions in turn.
A. CITIZENSHIP AND CREDIBILITY
Thile first contends that the BIA's affirmance of the
IJ's finding that he failed to produce sufficient evidence to
establish Chinese citizenship rather than Indian citizenship was
flawed because Thile "should be found to have established his
Chinese citizenship through his credible testimony and
corroborating evidence." Further, Thile claims that the BIA erred
in not presuming him credible or further analyzing his credibility
in light of the IJ's failure to state an explicit credibility
finding. Both of these arguments fail.
In order to be eligible for asylum, an applicant must
demonstrate that he or she is a refugee, defined by statute as:
any person who is outside any country of such person's
nationality or, in the case of a person having no
nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling
to return to, and is unable or unwilling to avail himself
or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion . . .
8 U.S.C. § 1101(a)(42). Thus, a threshold determination to any
decision on an asylum application is establishing the "country of
such person's nationality" or, for those without nationality, the
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"country in which such person last habitually resided." Id.; see
Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006) ("[P]etitioner's nationality, or lack of nationality, is a
threshold question in determining his eligibility for asylum"
(quoting Dhuomo v. BIA, 416 F.3d 172, 174 (2d Cir. 2005)).
Substantial evidence supports the determination that Thile did not
meet his burden to establish that China was either his country of
nationality or the country in which he last habitually resided.
Thile claimed in his asylum interview and testified
before the IJ that he was a citizen of China. He submitted what
he claimed to be copies of his Chinese household register, his
children's birth certificates, his marriage certificate, his
Tibetan Green Book, and a letter from the Office of Tibet in New
York in support of this claim. However, the IJ also reviewed
evidence on the record that Thile was a citizen of India. For
example, Thile was admitted to the United States with an Indian
passport. As the IJ noted, he traveled to Australia, obtained a
United States visa, and was admitted into the United States with
an Indian passport that was at each step accepted as genuine.
Thile admitted that he resided in India for more than six years.
Further, the IJ noted that record evidence indicated that Tibetans
are able to obtain citizenship in India.
As has been noted, the IJ granted a continuance in
Thile's case so that he could obtain additional evidence of his
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Chinese citizenship. After more than two years, the only new
evidence Thile produced was his Tibetan Green Book that was issued
in India and did not indicate anything about the current status of
Thile's citizenship in either China or India, but rather indicated
that he was born in Tibet. He provided no additional evidence of
attempts to obtain evidence of his Chinese citizenship nor any
explanation for his continued lack of evidence other than that the
documents were unavailable. Accordingly, the IJ made a
determination based on photocopies of original documents,
allegations of inconsistencies within those documents, original
documents that were inconclusive as to his citizenship, Thile's
admittance into the United States on an Indian passport, and
Thile's own testimony. Taking this evidence into consideration,
the IJ and BIA concluded based on substantial evidence that Thile
had not carried his burden of proving his Chinese citizenship in
the face of record evidence showing that he was an Indian citizen.
He had ample opportunity to produce evidence or explain why he
could not produce evidence of his Chinese citizenship, and yet did
not do so. Thus, because Thile did not sufficiently corroborate
his claims, we reject this aspect of Thile's appeal. Chhay, 540
F.3d at 6–7.
Thile further claims that the BIA should have presumed
his testimony credible and that, had it done so, the BIA would
have concluded that Thile was a citizen of China. The INA requires
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that Petitioners provide corroborating evidence "unless the
applicant does not have the evidence and cannot reasonably obtain
the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii). While credible
testimony alone can satisfy a Petitioner's burden of proof, where
[Petitioner's] testimony is not itself compelling[,] the
absence of easily obtainable corroborating documentation
can be the final straw. The substantial evidence test
applies in these purlieus, and a reviewing court must
accept the IJ's determinations with respect to the
persuasiveness vel non of the alien's testimony, the
availability of corroborating evidence, and the effect
of non-production unless the record compels a contrary
conclusion.
Chhay, 540 F.3d at 6 (first citing Sela, 520 F.3d at 46; then
citing Eke, 512 F.3d at 381; then citing Pan, 489 F.3d at 83; then
citing Hayek, 445 F.3d at 508; then citing REAL ID Act §101(a)(3),
(e); and then citing Kho v. Keisler, 505 F.3d 50, 57 (1st Cir.
2007)). An IJ can require corroboration even without making an
adverse credibility determination. See id.; Balachandran v.
Holder, 566 F.3d 269, 273 (1st Cir. 2009); Diab v. Ashcroft, 397
F.3d 35, 40 (1st Cir. 2005). That was precisely the case here.
The IJ found that, regardless of the credibility of Thile's
testimony regarding his birth and original citizenship in China,
other record evidence indicated that he became a citizen of India.
Thus, the IJ concluded that "[Thile's] own testimony about being
a citizen of China is not sufficient to convince this court that
he did not later acquire Indian citizenship during the many years
that he resided in India." The BIA's affirmance of the IJ's
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finding that Thile did not prove his Chinese citizenship, on the
basis of a lack of corroborating evidence, was not in error.
Where, as here, the record contains conflicting evidence regarding
petitioner's citizenship and Thile could not explain his lack of
attempt to obtain further evidence to show his Chinese citizenship,
there was no need for the BIA to address Thile's credibility. See
Morgan v. Holder, 634 F.3d 53, 57 (1st Cir. 2011) ("The lack of a
credibility determination is a cause for concern only when a claim
turns on the veracity of the alien. . . . But a credibility
determination is superfluous when the alien's testimony, even if
taken at face value, is insufficient to compel an entitlement to
relief." (citing Kho, 505 F.3d at 56; Makhoul v. Ashcroft, 387
F.3d 75, 81 (1st Cir. 2004))). Contrary to Thile's claim, the BIA
did not "fully discount[] Petitioner's testimony without providing
proper reasoning," but instead made a decision based on the record
evidence and without needing to make an adverse credibility
finding. Thus, we deny Thile's petition for review of the BIA's
determination that Thile failed to prove his Chinese citizenship.1
1 Thile further argues in regard to this issue that the BIA
and IJ misstated and incorrectly characterized the record by
observing that the DHS found Petitioner's Chinese identification
card number to be fraudulent. We note that neither the BIA nor
the IJ made findings on the legitimacy of the photocopied household
register or of the Chinese identification card number, but rather
relied on a lack of corroboration and original documents in the
face of conflicting evidence in determining that Thile did not
prove his Chinese citizenship. The BIA merely observed in a
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B. APPLICATION FOR ASYLUM, WITHHOLDING OF REMOVAL, AND CAT
PROTECTION
As explained by the IJ, even if Thile retained his
Chinese citizenship, he would not be able to base his application
on a fear of returning to China because the firm resettlement
principle bars such a claim. 8 C.F.R. § 208.15 (2017) ("An alien
is considered to be firmly resettled if, prior to arrival in the
United States, he or she entered into another country with, or
while in that country received, an offer of permanent resident
status, citizenship, or some other type of permanent resettlement
. . . .")2; see Bonilla v. Mukasey, 539 F.3d 72, 78 (1st Cir.
2008). By failing to corroborate his Chinese citizenship and
failing to overcome substantial record evidence that he acquired
footnote, "[t]he Immigration Judge also noted that the DHS found
the Chinese government identification card [number] submitted by
the respondent to be fraudulent, which he does not challenge on
appeal." In fact, the IJ stated that Thile "was asked if he knew
that the asylum officer regarded [his Chinese identification card
number] as fraudulent[,]" which he denied being told. Evident
from a full reading of the IJ and BIA's opinions is that this
reference is to information about Thile's Chinese identification
card number within the photocopy of his household register. This
is not a mischaracterization of the record constituting error, but
rather a shorthand for the evidence on the record brought about by
a lack of original documentation in the record as to Thile's
Chinese identity card.
2 The Department of Homeland Security issued a new definition
of firm resettlement which superseded the definition cited here.
Procedures for Asylum and Withholding of Removal; Credible Fear
and Reasonable Fear Review, 85 Fed. Reg. 80,274 (Dec. 11, 2020)
(codified at 8 C.F.R. § 208.15). This new regulation does not
apply retroactively, and thus is inapplicable here.
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Indian citizenship, Thile may not base his applications on a fear
of returning to China. Thus, we examine his claim for asylum as
a refugee from India, in that it was Thile's admitted last country
of residence3 and the country to which he indicated he was a citizen
upon his entry to the United States. In so doing, we can easily
decide Thile's remaining arguments regarding his eligibility for
asylum.4
First, Thile is not entitled to asylum as a Tibetan
facing removal to India. In order to be eligible for asylum, an
applicant must prove his status as a refugee "who is unable or
unwilling to return to . . . [the country of that person's
nationality or last habitual residence] because of persecution or
a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1101(42). The IJ determined, and the BIA
affirmed, that Thile did not meet either the past or well-founded
fear of future persecution prongs of his asylum claim. We agree.
3 Neither Thile nor the Government argues that Thile became a
resident of Australia.
4 The Government argues that Thile's contention regarding his
eligibility for asylum on the basis of his treatment in China is
not properly before us because the BIA did not issue a
determination on that basis. We need not address this claim
because we affirm the BIA's determination that Thile did not meet
his burden of proving that he is a Chinese citizen. Therefore,
he is not entitled to asylum or related relief on any claim that
he may have faced or would face harm from the Chinese government.
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The record does not indicate that Thile either faced or would face
persecution in India on the basis of his Tibetan nationality, his
religion, or his political beliefs in regard to Tibet. As the IJ
noted, the record does not support that he was seriously harmed
during his two-day detention in India, and the record includes no
evidence of what harm Thile suffered aside from Thile's own
conclusory testimony that he "was mistreated physically, very
badly." Thile's description of a "single incident of physical
harm [that] was an isolated event and [in which] the resulting
injuries were not sufficiently severe to require medical
attention" does not rise to the level of persecution. Cabas v.
Holder, 695 F.3d 169, 174 (1st Cir. 2012). Nor does the record
evidence regarding treatment of Tibetans in India support that
there is a current pattern or practice of persecution of Tibetans
in India.
Having not met the persecution prong for asylum, Thile
is not able to meet the higher threshold for his counterpart claim
of withholding of removal. See Scatambuli, 558 F.3d at 58. And
since his CAT claim, as framed, depends on the same underlying
claim of persecution, Thile is also unable to make out that claim.
Thus, we also deny his petition as to the BIA's affirmance of the
denial of his applications for asylum and withholding of removal.
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IV. CONCLUSION
For the foregoing reasons, Thile's petition for review
is DENIED.
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