Zeng Kun Ye v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12098 ELEVENTH CIRCUIT
DECEMBER 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A096-395-414
ZENG KUN YE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 29, 2009)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Zeng Kun Ye petitions for review of the Board of Immigration Appeals’
(BIA’s) decision affirming the Immigration Judge’s (IJ’s) order finding Ye
removable and denying his application for asylum and withholding of removal
under the Immigration and Nationality Act (INA), and denial of relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT).1 Ye contends the IJ’s adverse
credibility determination was not supported by substantial evidence because it was
based largely on minor discrepancies in Ye’s testimony, rather than matters that
went to the heart of his asylum claim. We conclude substantial evidence supported
the BIA’s and IJ’s adverse credibility finding and deny Ye’s petition.2
“Credibility determinations are reviewed under the substantial evidence test,
and we will not overturn them unless the record compels it.” Shkambi v. U.S. Att’y
Gen., 584 F.3d 1041, 1049 n.6 (11th Cir. 2009). “Once an adverse credibility
finding is made, the burden is on the applicant alien to show that the IJ’s credibility
1
As an initial matter, even though the BIA denied Ye CAT relief, because Ye never
appealed to the BIA the IJ’s decision denying him CAT relief, Ye has failed to exhaust his
administrative remedies and we do not have jurisdiction to consider the claim. See Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (“We lack jurisdiction to
consider a claim raised in a petition for review unless the petitioner has exhausted his
administrative remedies with respect thereto.”).
2
Because the BIA issued its own opinion, and, without adopting the IJ’s opinion, relied
upon the IJ’s decision and reasoning, we “first review the IJ’s opinion, to the extent that the BIA
found that the IJ’s reasons were supported by the record [and] [w]e then review the BIA’s
decision, with regard to those matters on which it rendered its own opinion and reasoning.”
Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009).
2
decision was not supported by specific, cogent reasons or was not based on
substantial evidence.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.
2005) (quotations omitted). “Indications of reliable testimony include consistency
on direct examination, consistency with the written application, and the absence of
embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006).
“The weaker an applicant’s testimony, however, the greater the need for
corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.
2005). When an applicant does produce corroborative evidence, “the IJ must
consider that evidence, and it is not sufficient for the IJ to rely solely on an adverse
credibility determination in those instances.” Forgue, 401 F.3d at 1287.
Substantial evidence supports the adverse credibility finding. In the asylum
hearing, the IJ found numerous inconsistencies between Ye’s application and his
testimony. First, as recognized by the BIA, the IJ noted Ye mentioned two
different dates in referring to the incident when his two friends were arrested. In
Ye’s application he referenced March 23, 2003, but, at the hearing Ye said April
23, 2003. Other inconsistencies included Ye’s very practice of Falun Gong. As
the BIA noted, the IJ found Ye did not display much knowledge of Falun Gong.
At the asylum hearing, though Ye did claim and describe some knowledge of Falun
Gong, Ye could not remember one of the Eight Virtues or Eight Faiths. This was
despite the fact Ye claimed to have practiced for four years and Ye submitted
3
documents with his application listing these very details. Though Ye contends his
lack of knowledge should not have been relied on, this deficiency conflicted with
the information he provided in his application, indicating his testimony was
unreliable. See Ruiz, 440 F.3d at 1255.
In addition, the Falun Gong certificate Ye submitted stated it was issued on a
date earlier than when Ye claimed to have begun practicing Falun Gong, and also
before Ye claimed he received the certificate. In particular, the certificate said it
was issued on April 25, 2002, but Ye stated he began practicing on October 21,
2002. Moreover, Ye said he received the certificate on October 25, 2002, yet the
certificate itself stated it was issued on April 25, 2002. Furthermore, though Ye
asserted he was only a beginner in practicing Falun Gong when he lived in China,
Ye claimed the exercise he completed to earn the certificate was both an advanced
and a beginner’s exercise. Moreover, the certificate itself stated that it “was the
basic class” of “Falun Gong advanced exercises . . . .” (emphasis added). Thus, if
the certificate is accurate, Ye did complete advanced exercises even though he
claimed to be a beginner. Moreover, despite Ye’s claims, the certificate evidenced
Ye’s Falun Gong membership by including his name, picture, and participation.
Taken as a whole, the inconsistencies between Ye’s testimony and his application
supported the IJ’s adverse credibility determination. See Ruiz, 440 F.3d at 1255.
4
Finally, as the BIA recognized, the IJ found Ye omitted information from his
application he testified about in the hearing. In particular, Ye did not state in his
application that he hid at between five and six locations before leaving for the
United States, but Ye testified to these facts at the hearing. This omission from his
asylum application supports the BIA’s holding of adverse credibility. See Forgue,
401 F.3d at 1287-88 (recognizing omissions from an application support a finding
of adverse credibility).
As both the BIA and IJ recognized, because Ye’s testimony failed to
establish his claim, Ye needed to provide corroborative evidence to help
substantiate his claim. For example, the BIA noted the IJ’s suggestion Ye submit
an affidavit from his sister evidencing Ye still practices Falun Gong. Though Ye
stated he practiced alone, Ye also said he lived with his sister and she was the only
person to see him practicing since he came to the United States. Thus, despite Ye’s
claim he could not submit any evidence outside of his testimony to evidence his
continued practice, Ye’s own testimony contradicts this assertion. Because Ye did
not present testimony that was free from inconsistencies and omissions, Ye had a
need to present additional corroborative evidence, and he failed to do so. See
Yang, 418 F.3d at 1201.
5
As a whole, the inconsistencies and omissions in both Ye’s testimony and
the documents he submitted do reach the heart of Ye’s claim.3 Because the record
as a whole does not compel the holding Ye was entitled to asylum relief, we affirm
the BIA’s denial of Ye’s asylum application.4 Furthermore, because Ye failed to
meet the burden required for asylum, the denial of his claim for the more stringent
standard of withholding of removal is also affirmed. See Al Najjar v, Ashcroft, 257
F.3d 1262, 1293 (11th Cir. 2001). Thus, we dismiss as to the CAT claim and
otherwise deny Ye’s petition.
PETITION DENIED IN PART, DISMISSED IN PART.
3
The REAL ID Act of 2005 provides an adverse credibility determination may be based
on inconsistencies that do not go to the heart of the applicant’s claim. REAL ID Act
§ 101(a)(3)(B)(iii), (d)(4)(c), Pub. L. No. 109-13, 119 Stat. 231, 303, 305 (codified at 8 U.S.C.
§§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C)). Because Ye’s application was filed before these
amendments became effective on May 11, 2005, they do not apply to his claims. Nonetheless,
we need not resolve whether adverse credibility determinations in pre-REAL ID Act cases must
be based on inconsistencies that go to the heart of the claim because the inconsistencies relate
directly to Ye’s claims of persecution. See Shkambi, 584 F.3d at 1049 n.7.
4
Because we affirm the IJ’s and BIA’s adverse credibility finding, we need not discuss
Ye’s claim that substantial evidence does not support the BIA’s holding he did not suffer past
persecution.
6