Jian Chuan Xie 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[DO NOT PUBLISH]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
ELEVENTH CIRCUIT
No. 07-14272 March 31, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency No. A97-959-189
JIAN CHUAN XIE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 31, 2008)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Jian Chuan Xie (“Xie”) petitions for review of the Board of Immigration
Appeals’ (“BIA’s”) order affirming the Immigration Judge’s (“IJ’s”) denial of his
application for asylum and withholding of removal. After review, we deny the
petition.
I. BACKGROUND
A. Asylum Application
On November 9, 2004, Xie, a native and citizen of China, arrived in the
United States without an entry document or a passport. Xie later claimed he had
boarded with a fake Japanese passport but had torn it up in flight. Upon his arrival,
an immigration officer interviewed Xie, who requested political asylum. Xie
stated that he feared a prison sentence if returned to China because he had objected
to the government’s attempt to take his family’s land. Xie left China two months
earlier with the help of a “snakehead.” However, Xie refused to answer a number
of questions, including his address, his father’s name and where his parents were
born.
On November 16, 2004, the Immigration and Naturalization Service served
Xie with a Notice to Appear (“NTA”), charging him with removability under
Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), as an immigrant without valid travel documents. Xie
admitted the NTA’s allegations and conceded removability.
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On July 5, 2005, Xie filed an application for asylum, withholding of
removal and relief under the United Nations Convention Against Torture (“CAT”).
Xie’s application stated that he left China in September 2004 and would be
imprisoned and mistreated if returned to China.
In support of his application, Xie attached his citizen identification card, his
family’s household register, his “notarial” birth certificate and two letters, one
from Xie’s father and one from a neighbor. His father, Bao Ming Xie, wrote that
the government offered little compensation for the family’s property, and his son
protested. As a result, his son was scalded badly on his foot, and was accused of
anti-government activities. Xie’s father stated that the police destroyed his house
when he refused to tell them his son’s whereabouts. The return address on Bao
Ming Xie’s letter was 54 Xiean Village, Chengmen township, Foochow City,
Fujian Province, China.
Fa Dong Xie, a neighbor, wrote that Xie was the most active of the
“dissidents” to the government’s plan to confiscate all village property to construct
a factory. Xie organized a 20-person protest in the village. The protestors waved
posters and shouted that the government was unfair, but the police disrupted the
protest after two hours. Fa Dong Xie later heard that Xie’s family home was
destroyed.
3
A June 2004 State Department Profile of Chinese Asylum Claims (“2004
State Department Profile”) estimated that thousands of people were detained by the
government for peacefully expressing their political or social views. It also noted
that documentation in China was subject to widespread fabrication, including
documents verifying identity, birth and personal history. One Chinese official
“with responsibilities relating to notarial offices in Fujian province,” Xie’s home
province, stated that “no reliable documents exist to prove relationships and
notaries must do field investigations to confirm information in notarial
documents.” In a 1999-2000 investigation, the United States Consulate General in
Guangzhou found that only 17 out of 60 documents were authentic. The report
noted a “burgeoning market in counterfeit identification documents.”
B. Asylum Hearing on January 12, 2006
At the asylum hearing on January 12, 2006, Xie testified that he had lived in
China until May 2004 with his parents at 54 Xiean Village, Chengmen township,
Foochow City, Fujian Province, China. According to Xie, in February 2004, the
government took property from 200 families in his village to build a manufacturing
plant and paid Xie’s family 10,000 yuan for the property. Xie visited the local
government office to request greater compensation. When the official on duty
informed him that the “‘[g]overnment decision is [the] government decision,’” Xie
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hit the desk, resulting in security hitting him twice with a police stick and throwing
him out.
Xie testified that on March 15, 2004, he traveled 36 hours by train to Beijing
to appeal to the central government. Xie walked around Tiananmen Square,
holding a piece of cloth which stated that the government was unfair and the
citizens needed human rights. After thirty minutes, the police arrested him. At the
detention center, the police hit Xie and asked why he was making trouble “‘for the
government in Beijing.’” Xie explained about the unfair compensation for his
property, and the police told him that he should return home because it was a local
government decision. Before releasing him, the police asked Xie to sign a
statement admitting that he made trouble for the government. When Xie refused to
sign the statement, the police responded by pouring boiling water onto his feet.
Xie testified that he was held in Beijing for 15 days, during which time he was
beaten, burned with cigarettes, and denied food.
After his release, Xie returned to his village and organized a protest. The
protesters displayed banners and shouted slogans. According to Xie, the police
intervened within ten minutes of the protest’s start. Xie escaped to his cousin’s
home. When the IJ asked why Xie’s neighbor Fa Dong Xie had written that the
protest continued for two hours before police arrived, Xie said that Fa Dong Xie
had made a mistake. According to Xie, the police issued a warrant for his arrest,
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beat his parents and destroyed their house. Xie’s parents borrowed $40,000 to pay
a “snakehead” to smuggle Xie out of China.
Using a fake Japanese passport, Xie traveled from Hong Kong to France in
May 2004. Xie stayed in France for several months before flying to the United
States. Xie testified that his intention all along was to travel to the United States
because he believed the United States would provide him with protection. He
destroyed his fake passport on the US-bound plane. Xie admitted that he had not
attempted to obtain a Chinese passport.
On cross-examination, Xie acknowledged that his parents and Fa Dong Xie,
his neighbor and fellow protestor, continued to live in the same village. Xie
explained that his father was using the same mailing address of the destroyed
house even though his parents were living in a different house. When asked why
his asylum application had not reported the cigarette burning and beatings in
Beijing or his parents’ beating, Xie said that he did not want to talk about those
incidents at the time, but wanted to talk about them before the judge. The IJ noted
a discrepancy in the number on Xie’s father’s identification card, which was
attached to his letter, and the number listed for Xie’s father in the household
register.1
1
The household register listed Xie’s father’s identification card number as
350111195509270415. Xie’s father’s identification card contained the number
350111550927041.
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D. Decisions of the IJ and BIA
The IJ denied Xie’s application for asylum, withholding of removal, and
CAT relief, and ordered Xie removed to China. The IJ found that Xie had not
shown past persecution or a well-founded fear of future persecution.
The IJ also found that Xie’s “testimony simply ha[d] not been sufficiently
credible . . . to find that [Xie] met his burden of proof.” The IJ noted these
discrepancies in the evidence: (1) Xie was unwilling to provide basic information
upon his arrival at the airport despite his claim that he sought asylum in the United
States, and not other countries, because the United States respected human rights;
(2) his asylum application stated that he left China in September 2004 but he
testified that he left in May 2004; (3) Xie’s father continued to use the address
from the family home that Xie claimed was destroyed when police sought to arrest
Xie; (4) although Xie claimed his parents could not survive on the 10,000 yuan
offered for their land, his parents were able to pay “substantially more” money in
United States dollars to have Xie smuggled into the United States; (5) Xie testified
that Beijing police beat him in Tiananmen Square before taking him to the police
station, but his asylum application did not mention this incident; (6) Fa Dong Xie
wrote that the community-wide protest lasted for two hours, while Xie testified that
it lasted for ten minutes; and (7) there was a discrepancy between Xie’s father’s
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identification number on the household register and on his father’s identification
card.
The IJ found that due to the widespread fabrication of documents in China,
as reported by the State Department, there were no documents that the court could
rely upon to establish Xie’s identity, further diminishing his entitlement to asylum.
The IJ noted that Xie had not tendered an official document from the Chinese
embassy or consulate or a passport from China and had not explained why he could
not obtain one. Alternatively, the IJ concluded that Xie had failed to show a nexus
between the alleged persecution or feared future persecution and a statutorily
protected ground.
Xie appealed to the BIA. The BIA adopted and affirmed the IJ’s decision.
The BIA also noted that it was not persuaded that the IJ’s credibility finding was
clearly erroneous. Xie petitioned this Court for review.
II. DISCUSSION 2
A. Asylum and Adverse Credibility
An asylum applicant has the burden to show, with specific and credible
evidence, either past persecution or a “well-founded fear” of future persecution on
account of race, religion, nationality, membership in a particular social group or
2
On appeal, Xie does not challenge the denial of his claim for CAT relief. Therefore, we
do not address this claim further. See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.3
(11th Cir. 2003).
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political opinion. 8 C.F.R. § 208.13(a), (b); Al Najjar v. Ashcroft, 257 F.3d 1262,
1287 (11th Cir. 2001).
In 2005, the REAL ID Act of 2005 amended 8 U.S.C. § 1158, changing the
law regarding credibility determinations. See Pub. L. No. 109-13, § 101(a)(3),
119 Stat. 231, 303 (2005). The amendments to § 1158 took effect on May 11,
2005, the date of enactment, and apply to applications of asylum and withholding
of removal filed after that date. See § 101(h)(2), 119 Stat. at 305. Xie’s
application was filed on July 5, 2005, and thus the REAL ID Act’s new law
regarding credibility determinations applies.
Pursuant to § 1158(b)(1)(B)(iii), as amended by the REAL ID Act, the BIA
and the IJ may make an adverse credibility determination based on the “totality of
the circumstances” and deny an asylum claim based on inconsistencies,
inaccuracies and falsehoods contained in the evidence without regard to whether
they go to the heart of the claim.3 INA § 208(b)(1)(B)(iii); 8 U.S.C.
3
Section 1158(b)(1)(B)(iii) states in full:
Considering the totality of the circumstances, and all relevant factors, a trier of fact
may base a credibility determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the applicant’s or witness’s
account, the consistency between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal consistency of
each such statement, the consistency of such statements with other evidence of
record (including the reports of the Department of State on country conditions), and
any inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or
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§ 1158(b)(1)(B)(iii); Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir.
2006).
“An IJ’s denial of asylum relief . . . can be supported solely by an adverse
credibility determination, especially if the alien fails to produce corroborating
evidence.” Id. However, the IJ must consider all the evidence submitted by the
applicant, including any documentation. Forgue v. U.S. Att’y Gen., 401 F.3d
1282, 1287 (11th Cir. 2005). The IJ must make an explicit credibility finding and
offer “specific, cogent reasons for the finding.” Chen, 463 F.3d at 1231. If the IJ
has made an explicit credibility finding, the applicant bears the burden to show that
the finding is not supported by “specific, cogent reasons” or by substantial
evidence. Id. When the IJ lists an applicant’s inconsistencies, which are supported
by the record, we “will not substitute our judgment for that of the IJ with respect to
its credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th
Cir. 2004).
B. Xie’s Claim
any other relevant factor. There is no presumption of credibility, however, if no
adverse credibility determination is explicitly made, the applicant or witness shall
have a rebuttable presumption of credibility on appeal.
INA § 208(b)(1)(B)(iii); 8 U.S.C. § 1158(b)(1)(B)(iii). This “totality of the circumstances” test
for credibility determinations also applies to applications for withholding of removal. INA
§ 241(b)(3)(C); 8 U.S.C. § 1231(b)(3)(C).
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On appeal, Xie challenges the IJ’s adverse credibility determination. After
review, we conclude that the IJ made an explicit adverse credibility finding and
provided specific, cogent reasons for finding Xie not credible that are supported by
the record.4
Under § 1158(b)(1)(B)(iii), the IJ may rely on inconsistencies in the record
that do not go to the “heart” of the applicant’s claim. INA § 208(b)(1)(B)(iii); 8
U.S.C. § 1158(b)(1)(B)(iii). Further, the IJ may base a credibility determination on
“the demeanor, candor, or responsiveness of the applicant . . . [and] the inherent
plausibilty of the applicant’s . . . account.” Id. Thus, the IJ did not err in basing
the credibility determination on the inconsistencies identified in its order and was
not required to accept Xie’s explanations for those inconsistences.5 The record in
this particular case does not compel reversal of the IJ’s credibility determination.
We also cannot say that the IJ erred in finding that Xie failed to establish his
identity. Xie traveled to the United States on a false Japanese passport he admitted
destroying on the plane. Although Xie had lived in the United States since
November 2004, he had not tried to obtain from the Chinese embassy or consulate
4
Because the BIA adopted the IJ’s decision, we review the orders of both the BIA and the
IJ. See Al Najjar, 257 F.3d at 1284. We review an IJ’s credibility determination under the
substantial evidence test, and “like any fact finding, [it] may not be overturned unless the record
compels it.” Forgue, 401 F.3d at 1286-87 (quotation marks omitted).
5
We do not address the IJ’s alternative conclusion that Xie failed to show a nexus
between the alleged persecution or fear of persecution and his political opinion.
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any official document verifying his identity by the time of the hearing two years
later. Instead, in support of his application, Xie submitted a Chinese identification
card, a notarial birth certificate and his family’s household register. However, the
2004 State Department Profile stated that these types of documents–documents to
verify identities and births and to prove relationships–are commonly fabricated in
China, and in particular in Xie’s home province of Fujian. In light of these facts,
we cannot say that the IJ erred in finding that Xie failed to produce reliable proof
of his identity.
Because Xie failed to prove his asylum claim, his claim for withholding of
removal also fails. See Al Najjar, 257 F.3d at 1292-93.
PETITION DENIED.
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