Tian Feng Dong vs 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[DO NOT PUBLISH]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. 10-12796 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 22, 2011
________________________ JOHN LEY
CLERK
Agency No. A079-323-238
TIAN FENG DONG,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 22, 2011)
Before CARNES, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Tian Feng Dong, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ decision affirming the Immigration Judge’s order
of removal and denial of Dong’s applications for asylum and withholding of
removal under the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a),
1231(b)(3), and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment, 8 C.F.R.
§ 208.16(c). Dong claimed that he suffered past persecution for resisting China’s
one-child policy and that he had a well-founded fear that he would be forcibly
sterilized for violating that policy if he returned to the Fujian province of China.
The IJ based his order of removal on the finding that Dong was not credible. The
BIA dismissed Dong’s appeal, finding no clear error in the IJ’s adverse credibility
determination.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Mohammed v. U.S. Att’y
Gen., 547 F.3d 1340, 1344 (11th Cir. 2008). Because the BIA agreed with the IJ’s
adverse credibility determination, we review both the IJ’s and BIA’s decisions
regarding that determination. Id. We review factual findings, including credibility
determinations, under the highly deferential substantial evidence test. Id.; see also
Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). We
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must “view the record evidence in the light most favorable to the agency’s
decision and draw all reasonable inferences in favor of that decision.” Adefemi,
386 F.3d at 1027. “We must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. (quotation marks omitted). And to reverse, “we must conclude not
only that the evidence supports a contrary finding, but that it compels one.” Xia v.
U.S. Att’y Gen., 608 F.3d 1233, 1239 (11th Cir. 2010) (quotation marks and
alterations omitted).
To establish eligibility for asylum, an applicant “must, with specific and
credible evidence, establish (1) past persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion; or (2) a
well-founded fear of future persecution on account of a statutorily-protected
ground.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir . 2006).1 The
denial of asylum relief may be based solely on an adverse credibility determination
if the BIA or IJ provides specific, cogent reasons for the credibility finding.
Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304–05 (11th Cir. 2009). If the IJ
1
Persecution for political opinion includes both involuntarily sterilization and
persecution for failing to undergo, refusing, or otherwise resisting sterilization under a coercive
population control program. See 8 U.S.C. § 1101(a)(42). And a well-founded fear of
persecution for political opinion includes a well-founded fear of involuntary sterilization or
persecution in the future for failing to undergo, refusing, or otherwise resisting involuntary
sterilization. See id.3
makes an adverse credibility determination, “[t]he burden then shifts to the
applicant to show that the IJ’s credibility decision was not supported by specific,
cogent reasons or was not based on substantial evidence.” Chen, 463 F.3d at 1231(quotation marks omitted) (quoting Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1287 (11th Cir.2005)).
I.
In his oral decision, the IJ found that overall Dong was not credible. On the
issue of Dong’s past persecution for resisting China’s one-child policy, the IJ
alternatively found that, even if he assumed that Dong’s testimony was credible,
that testimony failed to prove past persecution. Dong contends that the IJ’s
ultimate finding that he was not credible did not specifically apply to the portion
of his testimony about past persecution. His position is that the IJ’s past
persecution finding was not really made in the alternative. He argues that the IJ
actually based his past persecution finding only on the substance of Dong’s
testimony and not on his lack of credibility. Dong asserts that because the BIA
relied solely on the adverse credibility determination in dismissing Dong’s appeal
and did not adopt the IJ’s alternative finding that Dong’s testimony failed to prove
past persecution, we must remand so the BIA can properly consider whether the
record supported that finding. We disagree.
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As we have already mentioned, the IJ found that Dong’s testimony was not
credible. In fact, the IJ clearly expressed that finding at least six different times in
its March 9, 2009 oral decision—once before discussing Dong’s past persecution
asylum claim and five times after that discussion. The IJ stated that “I have to
deny the respondent’s application for asylum [because] . . . I find that he is not
credible”; and “I just cannot find the respondent credible”; and “I just find that he
lacks the credibility to sustain the burden of proof”; and “he just quickly changed
his testimony in response . . . to questions . . . [s]o, I find that he is not credible”;
and “I would deny the application . . . because he is not credible”; and “I am just
not convinced that his testimony has been credible.” The IJ even went so far as to
say that “I am not even convinced there is a real second child in this case to be
honest with you. That is how much I question [Dong’s] credibility.”
The IJ did alternatively assume that Dong’s testimony was credible and
determine that, even then, he had not established past persecution. But that
alternative analysis does not change the IJ’s finding that in all of his testimony,
including the testimony about his past persecution, Dong was not credible. See
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009) (“Where
the [IJ] has given reasoned consideration to the petition, and made adequate
findings, we will not require that it address specifically each claim the petitioner
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made or each piece of evidence the petitioner presented.” (quotation marks and
alterations omitted)). The BIA specifically adopted the IJ’s adverse credibility
determination by finding “no clear error in the [IJ’s] determination that the
respondent was not credible.” Dong provided no corroborating evidence to
support his allegations about past persecution and in light of the adverse
credibility determination, substantial evidence in the record supports the
conclusion that Dong failed to establish the existence of past persecution.
II.
Dong also contends that the adverse credibility determination was
speculative and not based on specific, cogent reasons. He argues that because the
determination was not supported by substantial evidence, the record compels the
finding that Dong has a well-founded fear of persecution. We disagree.
In determining credibility, an IJ “must consider the totality of the
circumstances, including the applicant’s demeanor, the inherent plausibility of the
applicant’s story, and the consistency among the applicant’s written and oral
statements and other evidence of record.” Todorovic v. U.S. Att’y Gen., 621 F.3d
1318, 1324 (11th Cir. 2010). The finding must also be supported by the record,
not by speculation or conjecture. See Tang v. U.S. Att’y Gen., 578 F.3d 1270,
1278 (11th Cir. 2009).
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“The IJ alone is positioned to make determinations about demeanor—by
observing the alien and assessing his or her tone and appearance—and in that
sense is uniquely qualified to decide whether an alien’s testimony has about it the
ring of truth.” Todorovic, 621 F.3d at 1324 (quotation marks omitted). We thus
“afford great deference to an IJ’s assessment of demeanor” because it is a “core
function of the trier of fact.” Id. at 1325 (quotation marks omitted) (“Credibility
determinations, so far as they involve demeanor, have thus been characterized as
largely ‘unreviewable.’”). Also, although minor inconsistencies may not support
an adverse credibility finding, inconsistencies that go to a key element of an
asylum claim are sufficient to support such a finding. See Nreka v. U.S. Att’y
Gen., 408 F.3d 1361, 1369 (11th Cir. 2005).2
In this case, the IJ based his credibility determination in part on Dong’s
“demeanor on the stand,” finding Dong to be “evasive,” “non-responsive,” and
“not entirely forthcoming.” In addition to finding Dong not credible based on his
demeanor, the IJ found Dong’s testimony not credible based on the implausibility
2
Dong brought his claim for asylum before the effective date of the REAL ID Act of
2005, which provides that inconsistencies need not go “to the heart of the applicant’s claim.”
REAL ID Act of 2005, 8 U.S.C. § 1158. Because some of Dong’s inconsistencies directly relate
to his claim for asylum, 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. See
Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049 n.7 (11th Cir. 2009).
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of some of it and of some of the documentary evidence in the record. For
example, the IJ discussed the implausibility of Dong’s testimony about his second
child’s first trip to China. The IJ noted the absence in the record of any
corroborating documentary evidence about the trip and considered the
unlikelihood of anyone sending a four-month-old infant unaccompanied halfway
across the globe in the care of a travel agency. The IJ also doubted the plausibility
of the some of the documentary evidence on the record. For example, the IJ
questioned the credibility of the sterilization certificate from the local Chinese
government because of the State Department’s report of widespread fabrication of
government documents, particularly in the Fujian province of China, and the fact
that the certificate was dated just three days before Dong’s hearing.
Finally, the IJ identified several specific inconsistencies in Dong’s
testimony. The IJ pointed to testimony and documentary evidence that were
inconsistent about: when Dong was divorced from his wife; who has legal
custody of Dong’s first child in China; who Dong’s first child currently lives with
in China; which country his second child was born in; who has had custody over
his second child since the divorce; and the circumstances surrounding his second
child’s trips to and from China. When given the opportunity to explain the
inconsistencies at his hearing, Dong failed to do so sufficiently.
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As we have already mentioned, the inconsistencies regarding Dong’s
testimony about his second child led the IJ to state that he was “not even
convinced that there is a real second child in this case.” The existence of a second
child is an inconsistency that is certainly a key element in determining whether
Dong has a well-founded fear of persecution for having a second child.
Additionally, after the BIA adequately considered Dong’s arguments, it found “no
clear error” in the IJ’s adverse credibility determination, and analyzed with
approval many of the express findings the IJ made about Dong’s lack of
credibility. The decisions of the BIA and the IJ contain specific, cogent reasons
for the adverse credibility finding and the record contains substantial evidence to
support that finding.3
PETITION DENIED.
3
Because Dong “has failed to establish a claim of asylum on the merits, he necessarily
fails to establish eligibility for withholding of removal or protection under [the Convention
Against Torture].” Forgue, 401 F.3d at 1288 n.4.
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