Min Qi Wen v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 9, 2007
No. 06-11478 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A97-384-886
MIN QI WEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 9, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Min Qi Wen petitions for review of the Board of Immigration Appeals’s
(BIA) adoption and affirmance of the Immigration Judge’s (IJ) order denying
asylum, withholding of removal, and relief under the United Nations Convention
Against Torture and Other Cruel, Inhumane, or Degrading Treatment or
Punishment (CAT).
I. DISCUSSION
When, as here, the BIA issues a summary affirmance of the IJ’s opinion, we
review the IJ’s opinion, not the BIA’s decision. See Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1284 n. 1 (11th Cir. 2003). The IJ’s “findings of fact are reviewed
under the substantial evidence test,” and we must affirm the decision “if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1261 (11th
Cir. 2004) (citation and internal quotation omitted). Credibility determinations are
also reviewed under the substantial evidence test. Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1286 (11th Cir. 2005) (citations omitted). “To reverse the IJ’s fact
findings, we must find that the record not only supports reversal, but compels it.”
Mendoza, 327 F.3d at 1287 (citation omitted).
“To establish asylum eligibility, the alien must establish, a well-founded fear
that his or her political opinion (or other statutorily listed factor) will cause harm or
suffering that rises to the level of persecution.” Forgue, 401 F.3d at 1286 (citation
2
and quotation omitted).1 “The asylum applicant must establish eligibility for
asylum by offering credible, direct, and specific evidence in the record.” Id. at
1287 (citation and internal quotation omitted). The alien’s testimony, if credible,
may be sufficient to sustain the burden of proof for asylum or withholding of
removal without corroboration. 8 C.F.R. §§ 208.13(a), 208.16(b). Conversely,
“[a]n IJ’s denial of asylum relief . . . can be supported solely by an adverse
credibility determination, especially if the alien fails to produce corroborating
evidence.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006) (per
curiam) (citation omitted). “If the IJ explicitly determines that the alien lacks
credibility, the IJ must offer specific, cogent reasons for the finding. The burden
then shifts to the alien to show that the IJ’s credibility decision was not supported
by specific, cogent reasons or was not based on substantial evidence.” Id. (internal
citations and quotations omitted). When the IJ enumerates an applicant’s
inconsistencies and those inconsistencies are supported by the record, we “will not
substitute our judgment for that of the IJ with respect to its credibility findings.”
See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004).
1
To qualify for withholding of removal or CAT relief, an alien must establish standards more
stringent that those for asylum eligibility, and thus an alien unable to prove a “well-founded fear”
of persecution, as required for asylum relief, necessarily fails to prove, by a preponderance of the
evidence, that he will be persecuted on account of a protected ground, or tortured. Zheng v. U.S.
Att’y Gen., 451 F.3d 1287, 1292 (11th Cir.) (per curiam), petition for cert. filed, 75 U.S.L.W. 3121
(U.S. Sep. 12, 2006) (No. 06-367).
3
Wen argues that the IJ’s adverse credibility determination was based on false
renditions of his testimony and, at best, minor inconsistencies in the record and
was not based on specific and cogent reasoning. In addition, Wen contends that
the IJ lacked substantial evidence upon which to deny his asylum claim, asserting
that he presented specific, coherent, and consistent testimony regarding persecution
based on his violation of China’s coercive population control policies.
After careful review of the record and the parties’ briefs, we find no
reversible error. The record does not compel a reversal of the IJ’s findings that
Wen’s testimony lacked credibility, and that his claims were not otherwise
supported by “credible, direct, and specific evidence.” See Forgue, 401 F.3d at
1287 (citation and quotation omitted). While Wen argues that his testimony
regarding his employment, his travel arrangements, and his residence resulted in, at
the worst, only minor inconsistencies, the IJ’s adverse credibility finding was
nonetheless supported by specific, cogent reasoning, based on all of the evidence in
the record. Specifically, the IJ found that Wen’s claim that he neither had money
nor owed money was inconsistent with the fact that he testified he was not working
and he had hired at least three attorneys and had traveled by airplane from
Michigan to Florida. The IJ further detailed that while Wen testified that he did
not speak Mandarin very well, he conducted his airport interview in Mandarin,
essentially answering all of the questions. Perhaps most importantly, the IJ noted
4
that, when an INS official asked Wen why he had come to the United States upon
arriving at the Miami airport, the INS officer’s interview form indicated that Wen
answered “I want my father to be proud of his son.” R at 35 (quoting id. at 96).
The IJ indicated that Wen now claims that his parents abandoned him and he came
here because he was persecuted. Based upon these and other inconsistencies in the
record, the IJ found that Wen’s testimony “simply lacks the ring of truth.” Id.
Because this finding was supported by substantial evidence and made based on
cogent, specific analysis of the evidence in the record, this Court may not
substitute its judgment for that of the IJ. See D-Muhumed, 388 F.3d at 819.
Moreover, even if considered credible, Wen failed to establish eligibility for
relief. As noted by the IJ, Wen testified that he and his girlfriend made the
decision to abort her pregnancy, and there was no evidence of a forced abortion.
When Wen was asked to describe how he had been persecuted, he testified that
when he was sixteen years old he had impregnated his girlfriend, who was a year
younger than him, and feared that he would be put in jail if he returned to China.
Wen admitted that he and his girlfriend decided to have an abortion and that he ran
away before authorities who he claims were looking for him ever found him. As a
result, Wen presented no evidence that his girlfriend had been forced to abort a
pregnancy or to undergo involuntary sterilization and no evidence that he had been
persecuted for resistance to a coercive population control program. See 8 U.S.C. §
5
1101(a)(42)(B). Because Wen cannot meet the criteria for asylum relief, he
similarly cannot meet the higher standards of proof required for withholding of
removal and CAT relief. See Zheng, 451 F.3d at 1292.
II. CONCLUSION
Because Wen’s testimony was inconsistent, in several respects, with other
evidence in the record, and he failed to meet his burden to show that the IJ’s
adverse credibility finding was not based upon specific, cogent reasoning, the IJ
did not err in finding Wen’s testimony incredible. Moreover, because Wen failed
to offer credible evidence demonstrating that his girlfriend’s abortion made him
eligible for relief on the basis of political persecution, the IJ did not err in finding
Wen ineligible for asylum, withholding of removal, or CAT relief.
PETITION DENIED.
6