Yu v. Ashcroft

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Yu v. Ashcroft No. 03-3137
ELECTRONIC CITATION: 2004 FED App. 0106P (6th Cir.)
File Name: 04a0106p.06 D.C., for Respondent. ON BRIEF: Scott E. Bratton,
MARGARET WONG & ASSOCIATES, Cleveland, Ohio,
for Petitioner. James A. Hunolt, Emily A. Radford, UNITED
UNITED STATES COURT OF APPEALS STATES DEPARTMENT OF JUSTICE, OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for
FOR THE SIXTH CIRCUIT Respondent.
_________________
_________________
GUANG RUN YU , X
Petitioner, - OPINION
- _________________
- No. 03-3137
v. - SILER, Circuit Judge. Petitioner Guang Run Yu appeals
> his denial of asylum, arguing that the Immigration Judge (IJ)
, and Board of Immigration Appeals (BIA) erred in assessing
JOHN ASHCROFT , Attorney -
General of the United States, his credibility. We AFFIRM the BIA.
-
Respondent. - FACTUAL BACKGROUND
-
- Yu is a native citizen of China, seeking asylum based on his
N alleged connection with “Falun Gong” - a movement that
On Appeal from the Board of Immigration Appeals. blends aspects of Taoism and Buddhism with martial arts
No. A79 690 916. meditation. The Chinese Government declared Falun Gong
illegal in 1999; the U.S. State Department has since
Argued: December 2, 2003 documented reports of imprisonment, “re-education” in labor
camps, torture, and death of Falun Gong participants.
Decided and Filed: April 15, 2004
According to Yu, the wife of his friend Wang was arrested
Before: SILER, DAUGHTREY, and GIBBONS, Circuit as a Falun Gong leader in 2000. Yu testified that, after the
Judges. arrest, Yang hid at Yu’s house and gave Yu four boxes of
Falun Gong material to stash. Yu claimed that he hid the
_________________ boxes in an unused kitchen cupboard, unbeknown to his wife.
Public security arrested Wang at Yu’s house in June or July
COUNSEL 2001, but failed to search the house. Yu testified that he
burned the “most important” box in August 2001, but did not
ARGUED: Scott E. Bratton, MARGARET WONG & dispose of the other three. Yu also testified that both Wang
ASSOCIATES, Cleveland, Ohio, for Petitioner. James A. and Wang’s wife are presently in re-education camps.
Hunolt, UNITED STATES DEPARTMENT OF JUSTICE,
OFFICE OF IMMIGRATION LITIGATION, Washington,
1
No. 03-3137 Yu v. Ashcroft 3 4 Yu v. Ashcroft No. 03-3137
Later in August 2001, Yu, ostensibly seeking to avoid the particular social group, or political opinion.” 8 U.S.C.
police, traveled to Singapore, Malaysia, and Thailand without § 1101(a)(42)(A). Even if the alien qualifies as a refugee, the
any difficulty, and returned 10-15 days later to hide at his IJ may, in his discretion, deny asylum. 8 U.S.C. § 1158(a) &
sister-in-law’s house. Yu claimed that during this time his (b). Thus, fielding a request for asylum “involves a two-step
wife and child remained at home, with the three boxes. inquiry: (1) whether the applicant qualifies as a ‘refugee’ as
According to Yu, public security again searched his house defined in § 1101(a)(42)(A), and (2) whether the applicant
sometime in late 2001, this time seizing the remaining three merits a favorable exercise of discretion by the [IJ].” Ouda v.
boxes and telling Yu’s wife that he was to report to the public INS, 324 F.3d 445, 451 (6th Cir. 2003) (internal quotation
security office. In December 2001, Yu entered the United marks and citation omitted).
States and was stopped by the INS at the Detroit Airport.
At the first step, we review the IJ’s factual determination as
Yu testified that public security has since visited his home to whether the alien qualifies as a refugee under a substantial
often and that his wife served time in a re-education camp. evidence test. The Supreme Court found that the IJ’s
determination on eligibility for asylum had to be upheld if
PROCEDURAL BACKGROUND “supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” INS v. Elias-Zacarias,
Yu conceded removability but applied for asylum, 502 U.S. 478, 481 (1992). The Court was directly quoting
withholding of removal, and withholding under the Torture 8 U.S.C. § 1105a(a)(4), which provided that the IJ’s findings
Convention. The IJ denied Yu’s application based solely on of fact had to be supported by this type of evidence. The
lack of credibility. The BIA affirmed without opinion, and Court went on to find reversal available only if “the evidence
Yu petitioned this court for review. We have jurisdiction presented by [the alien] was such that a reasonable factfinder
pursuant to 8 U.S.C. § 1252(a)(1), which provides for judicial would have to conclude that the requisite fear of persecution
review of all final immigration removal orders. Because the existed,” citing NLRB v. Columbian Enameling & Stamping
BIA affirmed the IJ without opinion, we review the IJ Co., 306 U.S. 292 (1939), a case documenting “substantial
decision as the final administrative order. See, e.g., Albathani evidence” decisions for administrative orders. Elias-
v. INS, 318 F.3d 365, 373 (1st Cir. 2003). Zacarias, 502 U.S. at 481.
STANDARD OF REVIEW However, in 1996, 8 U.S.C. § 1105a(a)(4) was repealed and
1 replaced by 8 U.S.C. § 1252(b)(4). Nevertheless, many
The IJ, acting for the Attorney General, has discretion to circuits, including the Sixth, see Ouda, 324 F.3d at 451,
grant asylum to any alien who qualifies as a “refugee.” continue to cite the “supported by reasonable, substantial, and
8 U.S.C. § 1158(a) & (b). The statute defines a refugee as an probative evidence” language as controlling. Given that this
alien who is unable or unwilling to return to his home country language was repealed, we take this opportunity to clarify the
“because of persecution or a well-founded fear of persecution standard of review.
on account of race, religion, nationality, membership in a
Now, findings of fact are “conclusive unless any reasonable
1
adjudicator would be compelled to conclude to the contrary.”
The statute refers to the A ttorney G enera l. Since the Attorney 8 U.S.C. § 1252(b)(4)(B). Courts have found that
General has delegated his imm igration authority to the BIA and IJ, we § 1252(b)(4)(B) basically codifies the Supreme Court’s
will refer to the IJ rather than the Atto rney G enera l.
No. 03-3137 Yu v. Ashcroft 5 6 Yu v. Ashcroft No. 03-3137
substantial evidence standard. See Dia v. Ashcroft, 353 F.3d the first step of determining whether the alien qualifies as a
228, 247-49 (3d Cir. 2003). Thus, our jurisprudence, except refugee. See Dia, 353 F.3d at 247. Thus, we are reviewing
for reiteration of the of the repealed “supported by reasonable, the IJ’s adverse credibility determination for “substantial
substantial, and probative evidence” language, remains good evidence,” reversing only if “any reasonable adjudicator
law. See Ouda, 324 F.3d at 451 (finding IJ’s determination would be compelled to conclude to the contrary.” 8 U.S.C.
should be upheld unless evidence “not only supports a § 1252(b)(4)(B). Under this highly deferential standard, we
contrary conclusion, but indeed compels it,” and “[a]s such, uphold the IJ’s decision because the IJ laid out numerous
the petitioner must show that the evidence presented was so grounds for his adverse credibility finding. 3
compelling that no reasonable factfinder could fail to find the
requisite persecution or fear of persecution”) (citation The IJ based his decision on implausibilities and
omitted); accord Mikhailevitch v. INS, 146 F.3d 384, 388 inconsistencies, using Yu’s four separate statements taken
(6th Cir. 1998). from his airport interview,4 asylum application, credible fear
interview, and his testimony in front of the IJ. On
Regarding the second step, the discretionary judgment to implausibilities, the IJ found it farfetched that (1) Yu’s wife
grant asylum to a refugee is “conclusive unless manifestly did not find the four boxes (each the size of a 14-inch TV) of
contrary to the law and an abuse of discretion.” 8 U.S.C. Falun Gong materials stashed in the kitchen for ten months,
§ 1252(b)(4)(D). (2) Yu got rid of only one of the four boxes, endangering his
wife and child in the house, after the police had dragged
DISCUSSION Wang out of Yu’s house for being a Falun Gong member, and
(3) when coming to the United States for asylum, Yu so easily
Yu’s Credibility
For asylum, Yu must demonstrate that he qualifies as a
refugee by producing evidence that he has suffered past
persecution or has a well-founded fear of future persecution. v. INS, 2002 WL 31477862, at *2 n.3 (6th Cir. Nov. 5, 2002 ), recognized
8 U.S.C. § 1101(a)(42)(A). The IJ stated he would have that Elias-Zacarias changed the standa rd. T oda y, we officially adopt the
“substantial evidence” stand ard.
granted Yu asylum, if only he had found Yu credible.
Credibility determinations are findings of fact,2 falling within 3
Since Yu does not establish eligib ility for asylum, he does not meet
the more stringent standards required for withholding o r the T orture
Convention. See Mikhailevitch, 146 F.3d at 391.
2
Our circuit has no t officially pronounced this as the official 4
standard, and there seems to be some confusion. In Gumbol v. INS, 815 Yu refused to sign his interview statement because he claimed the
F.2d 406 , 412 (6th C ir. 1987), the court reviewed the credibility finding translation produced errors. Both the Ninth and Third Circuits have
for an “abuse of discretion.” Subsequently, the Supreme Co urt in Elias- discredited the reliability of initial airport interviews as “not sufficient
Zacarias implied the “substantial evidence” standa rd is co rrect. 502 U.S. standing alone” to be a reliable impeachment source because of the
at 481 . While mo st of our sister circuits use the “substantial evid ence” conditions under which they are taken (e.g., right off the plane, translation
standard, see, e.g ., Bojorques-Villanueva v. INS, 194 F .3d 14 , 15-16 (1 st problems). See Singh v. INS, 292 F.3d 101 7, 10 21-2 4 (9th Cir. 2002);
Cir. 1999); Ahmad v. INS, 163 F.3d 457, 461 (7th Cir. 1999), the Sixth accord Senathirajah v. INS, 157 F.3d 210, 217-18 (3d Cir. 1998).
Circuit’s unpublished opinions are split. In Jarjiss v. Reno, 191 F.3d 452, Assuming, without deciding, that our sister circuits are correct, Yu still
1999 W L 7761 86, at *1 (6th Cir. Sept. 20, 1999), a panel still cited would not prevail. The interview discrepancies in this ca se make up only
Gumbol’s“abuse of discretion” standa rd, while another panel in Arboleda part o f the IJ’s basis, and do not “stand alone.”
No. 03-3137 Yu v. Ashcroft 7 8 Yu v. Ashcroft No. 03-3137
exited China when the police came to arrest him at his home together, we find substantial evidence supporting the IJ’s
a month earlier. reservations about Yu’s credibility.
In addition, there are three major inconsistencies going to Yu has many explanations. For example, he claims that it
the “heart of [Yu’s] asylum claim,” Valderrama v. INS, 260 is not implausible that his wife would not find the boxes
F.3d 1083, 1085 (9th Cir. 2001), namely, his fear of because the kitchen cupboard was never used, that he did not
persecution for Falun Gong. First, Yu claimed that he destroy the other three boxes because they would not burn,
obtained visas (for Malaysia, etc.) to leave China in and that he easily left the country because there was no
August 2001, fearing persecution after Wang’s arrest in July, “official written” warrant for his arrest until February 2002.
but the visas were issued to him before Wang’s arrest in June. Yu’s explanations provide some support against the IJ’s
After being called on this, Yu changed his testimony to adverse credibility determination, but there is nothing in Yu’s
Wang’s arrest occurring in June rather than July. Even if this explanations that meet the high standard of compelling a
were true, the IJ pointed out that it would be implausible for contrary result. The IJ justified his determination with several
Yu to obtain the visa instantaneously with the arrest, grounds in the record and found that Yu often turned “on a
especially when he acquired the visa through a third-party dime in his testimony.” Although some of the IJ’s grounds
travel agency. Second, Yu never mentioned Falun Gong seem weak when the discrepancies are viewed in the context
during his initial airport interview, but only asserted it later in of the surrounding record, we cannot say that a “reasonable
his application. Third, he initially claimed that he had never adjudicator would be compelled to conclude to the contrary.”
seen a letter from his wife warning him not to return to China 8 U.S.C. § 1252(b)(4)(B); see also Elias-Zacarias, 502 U.S.
because the police were looking for him, but then changed his at 483-84.
mind and said that he had seen it, describing its contents in
detail. AFFIRMED.
Although the other remaining discrepancies could be
characterized as minor inconsistencies “in dates which reveal
nothing about an asylum applicant’s fear for his safety” that
would be an inadequate basis for the adverse credibility
finding, Senathirajah v. INS, 157 F.3d 210, 221 (3d Cir.1998)
(quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th
Cir.1988)), their cumulative effect gives support to the other
grounds. See Mejia-Paz v. INS, 111 F.3d 720, 724 (9th Cir.
1997). These minor inconsistencies include: (1) the days Yu
spent in Singapore, Malaysia, and Thailand (Yu said 10 days,
but the documents read 15 days), (2) the time he started
participating in Falun Gong (application read 1999, but Yu
testified that he participated in 1996 and joined the
organization in 1999), and (3) the month the police
apprehended Wang at Yu’s house (he switched from July to
June). Taking all these implausibilities and inconsistencies