Guo Chao-Qing v. Jefferson Sessions, III

Case: 16-60100 Document: 00514019443 Page: 1 Date Filed: 06/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60100 FILED
Summary Calendar June 5, 2017
Lyle W. Cayce
Clerk
GUO CHAO-QING, also known as Chao-Qing Guo,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 718 261
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
Chao-Qing Guo, a native and citizen of the People’s Republic of China,
petitions this court for review of the Board of Immigration Appeals’ (BIA)
decision affirming the Immigration Judge’s (IJ) denial of his application for
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). Guo contends that he is a Christian and a member of an
underground church in China; that he was subject to police intimidation and
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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brutality on the basis of his religious practices; and that he would face state-
sponsored oppression and torture if he were to return to China. Guo was the
only witness at the asylum hearings, though he submitted documentation in
support of his application, including statements from family members in
China, a pastor from a church he attended in China, and pastors from the
churches he has attended in the United States. Guo argues that the BIA erred
in affirming the IJ’s denial of relief based on an adverse credibility
determination. He also contends that the IJ and BIA erred in requiring
corroborative evidence and discounting or discrediting the documentary
evidence submitted in support of his application.
Because the BIA approved of and relied upon the IJ’s decision, this court
may review the decisions of both the BIA and the IJ. See Efe v. Ashcroft, 293
F.3d 899, 903 (5th Cir. 2002). The BIA and the IJ’s factual findings are
reviewed for substantial evidence and their legal conclusions are reviewed de
novo. Id. Credibility determinations are factual findings that are reviewed for
substantial evidence. See Vidal v. Gonzales, 491 F.3d 250, 254 (5th Cir. 2007).
Under the REAL ID Act, a trier of fact must consider “the totality of the
circumstances” and “all relevant factors” in making a credibility
determination. 8 U.S.C. § 1158(b)(1)(B)(iii). The IJ and BIA “may rely on any
inconsistency or omission in making an adverse credibility determination as
long as the ‘totality of the circumstances’ establishes that an asylum applicant
is not credible.” Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (quoting
Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)). We will defer to a “credibility
determination unless, from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility ruling.” Id.
(quoting Lin, 534 F.3d at 167).
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Guo argues principally that there were no inconsistencies between or
among his statements and that the alleged inconsistencies relied on by the IJ
and the BIA were minor and did not go to the heart of his claims for relief.
However, the IJ and BIA’s adverse credibility determinations relied on specific,
record-based inconsistencies. For example, when asked who his pastor was,
Guo took a long pause before testifying that he only knew Pastor Liu. He later
testified that he had forgotten about Pastor Ho, the senior pastor at the church
who had submitted a letter in support of Guo’s application. In his subsequent
written statement, Guo stated both that he saw Pastor Ho nearly every
Wednesday at church and that he was “not familiar with Pastor Ho.” Further,
Guo’s written statement says that his friend Bobby did not attend church
service and did not testify or submit a statement in support of Guo’s asylum
application because Bobby “had no knowledge on church.” This conflicts with
Guo’s testimony that Bobby went to church with Guo “a couple of times.”
Although we acknowledge that these discrepancies may be explainable,
the record does not compel the conclusion that the IJ and BIA erred in relying
on them. See Mwembie v. Gonzales, 443 F.3d 405, 410 (5th Cir. 2006) (“where
the judge’s credibility determinations are supported by the record, we will
affirm them even if we may have reached a different conclusion”). Cf. Kompany
v. Gonzales, 236 F. App’x 33, 38 (5th Cir. 2007) (“Although we believe these
inconsistencies may be explainable and are on the outer perimeter of
materiality, they nevertheless support the IJ’s credibility determination, and
the IJ is entitled to rely on them.”). Guo’s argument that the inconsistencies
identified were unrelated to his claim fails, as inferences about credibility can
be drawn from inconsistencies “without regard to whether [they] . . . go[] to the
heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also Wang, 569
F.3d at 538.
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To the extent Guo raises other arguments, including that the only true
inconsistency resulted from translation issues and that he was precluded from
presenting evidence explaining the alleged inconsistencies, we find these
arguments unexhausted and, as a result, jurisdictionally barred. The only
challenges to the credibility finding raised in Guo’s brief before the BIA were
that Guo was nervous at his hearing, he had testified consistently as to his
Christian faith and persecution, and he had corroborated his claims with
documentary evidence. Because Guo failed to raise additional arguments
challenging the credibility determination in his appeal to the BIA, this court
lacks jurisdiction to review such arguments. See 8 U.S.C. § 1252(d)(1) (“[a]
court may review a final order of removal only if . . . the alien has exhausted
all administrative remedies available to [him] as of right”); Ahmed v. Holder,
368 F. App’x 489, 492 (5th Cir. 2010) (court lacked jurisdiction to consider
argument that “various inconsistencies in his testimony . . . were the result of
his inability to understand English,” as it had not been raised before the BIA);
Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009) (failure to exhaust an issue
before the BIA is a jurisdictional bar to judicial review).
Guo also argues that the IJ and BIA failed to give sufficient weight to
his documentary evidence. Guo faults the IJ for discounting statements from
two American pastors and from a doctor in China on the grounds that they did
not reflect firsthand knowledge of Guo’s experience being beaten by police.
Guo claims that he offered the statements from the pastors in support of his
claim that he is a practicing Christian and that he offered the statement from
the doctor as proof that he required treatment after being beaten by police.
However, the IJ was not unreasonable in drawing a negative inference from
the fact that although the pastors said that they had known Guo for four years,
and that he was “like a son” to them, Guo testified that he did not know their
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last names. See Mwembie, 443 F.3d at 413 (noting that “an IJ can base some
of his determinations on his understanding of general human behavior”). And
while the doctor’s statement says that she treated Guo’s bruising and aches, it
reflects that Guo’s mother told the doctor that he had been “beaten by
somebody,” not specifically the police. Thus, while this evidence is obliquely
corroborative, it does not directly support Guo’s claimed persecution by
Chinese authorities. Guo also claims that it was error to discount statements
from Guo’s mother and aunt because the translator did not provide a name for
the aunt and because Guo’s mother reported no harm as a result of her church
attendance in China. However, the IJ noted that these statements did have
evidentiary value, but did not overcome the inconsistencies in Guo’s testimony,
particularly in light of the fact that Guo’s aunt and mother were not subject to
cross-examination.
Because Guo has failed to show that, under the totality of the
circumstances, the evidence is so compelling that no reasonable factfinder
could fail to find otherwise, we defer to the IJ’s and BIA’s adverse credibility
determinations. See Wang, 569 F.3d at 538–39. Guo does not argue that his
documentary evidence alone supports his claims for relief. Therefore, in light
of the adverse credibility determination, Guo has failed to show that the BIA
erred in affirming the IJ’s denial of his application for asylum, withholding of
removal, and relief under the CAT. See Dayo v. Holder, 687 F.3d 653, 657–59
(5th Cir. 2012); Efe v. Ashcroft, 293 F.3d 899, 906–08 (5th Cir. 2002); Chun v.
INS, 40 F.3d 76, 78–79 (5th Cir. 1994). Accordingly, Guo’s petition for review
is DENIED.
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