Daoi Kai He v. Lynch

FILED
United States Court of Appeals
Tenth Circuit
January 12, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DAOI KAI HE,
Petitioner,
v. No. 15-9557
LORETTA E. LYNCH, United States (Petition for Review)
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges. **
Dao Kai He is a native and citizen of the People’s Republic of China who
petitions for review of a Board of Immigration Appeals decision affirming the
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
immigration judge’s denial of asylum and withholding of removal. 1 We deny the
petition for review.
Mr. He entered the United States in 2006 without being admitted or
paroled. The Department of Homeland Security issued him a Notice to Appear
before an IJ to answer the charge that he was removable, pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(I). On May 6, 2012, in front of an IJ, Mr. He conceded his
removability based on section 237(a)(1)(B) of the Immigration Nationality Act as
an alien present without being admitted or paroled.
On September 24, 2013, Mr. He applied for asylum, withholding of
removal, and Convention Against Torture protection. At the hearing, Mr. He
testified that he had been a member of the Catholic Church since he was a child.
He stated that he had gone to a church until 2005, when the Chinese government
dissolved the church because it determined that it had become too popular. After
the formal dissolution, Mr. He continued to attend secret meetings at members’
homes. Mr. He claimed that he had been arrested, detained for fifteen days,
interrogated, and beaten by Chinese authorities for attending illegal religious
meetings.
To corroborate his testimony, Mr. He submitted several letters. Among
them was a letter from his father stating that Mr. He had been arrested along with
1
Although Mr. He also sought relief under the United Nations Convention
Against Torture (CAT), he has abandoned his CAT claim in this appeal, and it is
therefore waived.
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other church members and detained for ten days. A nun from the St. Thomas
Aquinas Church in Monterey Park, California, wrote letters confirming that Mr.
He had attended mass there since 2007. Mr. He testified, however, that he had
been living in Utah since 2009.
The IJ questioned petitioner about the inconsistencies in his application.
First, the IJ asked why the letter written by Mr. He’s father stated that Mr. He had
been detained for ten days, while Mr. He testified he had been detained for
fifteen. Mr. He gave two answers: that he had told his father he had been
detained for “ten-something days,” and that his father was “getting old” so his
memory was “not so good.” AR 186. The IJ next asked Mr. He to explain why
the nun claimed he had attended church in Southern California since 2007 when
Mr. He had testified he had been living in Utah since 2009. The IJ asked Mr. He
three times to explain how he had continued to attend that church after he moved
away. Each time, Mr. He provided a different answer.
The IJ denied Mr. He’s application in full, finding petitioner failed to
establish his credibility in light of the inconsistencies identified above. The IJ
was not persuaded that the letters from Mr. He’s father, cousin, or the nun were
reliable. The IJ found that petitioner’s father did not show signs of poor memory,
nor did Mr. He’s father preface his statement with any language indicating that
his son had given him only an approximation of the length of his detention.
Regarding the letters from the nun, the IJ found it improbable, given Mr. He’s
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full-time job as a waiter in Utah, that he made twice-monthly weekend trips to
California to attend church. Thus, the IJ found Mr. He failed to make the
required showing for asylum, and necessarily failed to meet the higher burden for
withholding of removal.
Mr. He then appealed to the BIA, which dismissed his appeal on July 21,
2015. The BIA found the IJ’s credibility finding was not clearly erroneous, and
that the inconsistencies identified by the IJ were supported by the record. The
BIA affirmed the denial of Mr. He’s petition.
When reviewing a brief order entered by a single member of the BIA under
8 C.F.R. § 1003.1(e)(5), we treat the BIA’s decision as the final order of removal,
but “consult the IJ’s opinion to the extent that the BIA relied upon or
incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). In
addition, “when seeking to understand the grounds provided by the BIA, we are
not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Id. (quotation omitted).
While we review legal determinations de novo, we review factual findings
for substantial evidence. See Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.
2009). Thus, we “look to the record for ‘substantial evidence’ supporting the
agency’s decision: ‘[O]ur duty is to guarantee that factual determinations are
supported by reasonable, substantial and probative evidence considering the
record as a whole.’” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.
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2006) (alteration in original) (quoting Elzour v. Ashcroft, 378 F.3d 1143, 1150
(10th Cir. 2004)). An alien seeking to overturn a factual finding must meet a
demanding standard because “[t]he agency’s findings of fact are conclusive unless
the record demonstrates that ‘any reasonable adjudicator would be compelled to
conclude to the contrary.’” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir.
2008) (quoting 8 U.S.C. § 1252(b)(4)(B)) (further quotation omitted).
“Credibility determinations are factual findings . . . subject to the
substantial evidence test.” Uanreroro, 443 F.3d at 1204. Accordingly, “we will
not question the immigration judge’s or BIA’s credibility determinations as long
as they are substantially reasonable.” Woldemeskel v. INS, 257 F.3d 1185, 1192
(10th Cir. 2001). But because an alien’s credible testimony may support an
application for asylum or restriction on removal without corroboration, see 8
U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); 8 C.F.R. §§ 208.13(a), 208.16(b), the
IJ or BIA “must give specific, cogent reasons for disbelieving it.” Sviridov v.
Ashcroft, 358 F.3d 722, 727 (10th Cir. 2004) (quotation omitted). An adverse
credibility finding “may not be based upon speculation, conjecture, or
unsupported personal opinion.” Chaib v. Ashcroft, 397 F.3d 1273, 1278 (10th
Cir. 2005) (quotation omitted). In addition, the agency may base an adverse
credibility finding on an inconsistency between the applicant’s statements and
other evidence in the record “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other
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relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see In re J-Y-C, 24 I. & N. Dec.
260, 265 (BIA 2007).
The BIA determined that the IJ’s adverse credibility finding was not clearly
erroneous because of two inconsistencies Mr. He failed to resolve: (1) Mr. He’s
testimony that he had lived in Utah since 2009 conflicted with letters submitted
on his behalf that claimed he had attended church in Southern California since
2007; and (2) Mr. He testified that he had been detained by the Chinese
government for fifteen days, while a letter from his father claimed his detention
lasted only ten days.
We conclude that the BIA’s affirmance of the IJ’s adverse credibility
finding was substantially reasonable and that no reasonable adjudicator would be
compelled to conclude to the contrary. The discrepancies between the letters
submitted and Mr. He’s testimony support the IJ’s adverse credibility
determination and the BIA’s affirmance. Thus, we are persuaded that both the
IJ’s and and the BIA’s decisions are supported by substantial evidence in the
record.
The petition for review is DENIED.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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