Filed: Jun. 16, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0212a.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - SHAN SHENG ZHAO, - Petitioner, - - No. 07-4117 v. , > - Respondent. - ERIC H. HOLDER, JR., - N On Appeal from the Board of Immigration Appeals. No. A76 513 761. Submitted: October 28, 2008 Decided and Filed: June 16, 2009 * Before: MARTIN and GILMAN, Circuit Judges; DOWD, Senior District Judge. _ COUNSEL ON BRIEF: Oleh Roman Tustaniwsky, LAW O
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0212a.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - SHAN SHENG ZHAO, - Petitioner, - - No. 07-4117 v. , > - Respondent. - ERIC H. HOLDER, JR., - N On Appeal from the Board of Immigration Appeals. No. A76 513 761. Submitted: October 28, 2008 Decided and Filed: June 16, 2009 * Before: MARTIN and GILMAN, Circuit Judges; DOWD, Senior District Judge. _ COUNSEL ON BRIEF: Oleh Roman Tustaniwsky, LAW OF..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0212a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
SHAN SHENG ZHAO,
-
Petitioner,
-
-
No. 07-4117
v.
,
>
-
Respondent. -
ERIC H. HOLDER, JR.,
-
N
On Appeal from the Board
of Immigration Appeals.
No. A76 513 761.
Submitted: October 28, 2008
Decided and Filed: June 16, 2009
*
Before: MARTIN and GILMAN, Circuit Judges; DOWD, Senior District Judge.
_________________
COUNSEL
ON BRIEF: Oleh Roman Tustaniwsky, LAW OFFICES, New York, New York, for
Petitioner. John W. Blakeley, Aviva L. Poczter, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
_________________________
AMENDED OPINION
_________________________
DOWD, Senior District Judge. Shan Sheng Zhao (Zhao) seeks review of the
Board of Immigration Appeals’ (BIA) decision denying his applications for withholding
of removal for fear of persecution pursuant to section 241(b)(3)(B) of the Immigration
*
The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
1
No. 07-4117 Zhao v. Holder Page 2
and Nationality Act (the Act or the INA), 8 U.S.C. § 1231(b)(3)(A),1 and for
withholding of removal for fear of torture pursuant to Article 3 of the Convention
Against Torture (CAT).2 Zhao argues that the BIA erred by: (1) adopting and affirming
the Immigration Judge’s (IJ) finding that Zhao was not credible; and (2) denying Zhao’s
applications for withholding of removal under the Act and the CAT. For the following
reasons, we affirm the decision of the BIA.
I. BACKGROUND
Zhao, a citizen of the People’s Republic of China, illegally entered the United
States in February 1995. On January 31, 2003, almost eight years after Zhao’s arrival,
the Department of Homeland Security initiated proceedings against Zhao to remove him
to his native China, citing the violation of 8 U.S.C. § 1182(a)(6)(A)(i), which requires
aliens entering the United States to be admitted or paroled. An alien who is present in
the United States without being properly admitted or paroled is inadmissible as a citizen.
On February 18, 2005, Zhao filed an application for withholding of removal
under 8 U.S.C. § 1231(b)(3)(A). This provision prohibits the Attorney General from
removing an alien if the Attorney General decides that the alien’s life or freedom would
be threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion. See Ka v. Gonzales, 236
F. App’x 189, 191 (6th Cir. 2007). Zhao’s application for withholding of removal under
8 U.S.C. § 1231(b)(3)(A) was based specifically on a fear of persecution arising from
1
The Immigration and Nationality Act of 1952 (the Act or the INA) is codified in Title 8 of the
United States Code. Withholding of removal is set forth in section 241(b)(3)(B) of the Act.
2
The CAT is a United Nations treaty signed by many nations in 1985 in “recognition of the equal
and inalienable rights of all members of the human family.” The Foreign Affairs Reform and
Restructuring Act, enacted by Congress in 1998 (FARRA), contains a provision that executes Article 3
of the CAT. Both Article 3 of the CAT and withholding of removal under section 241(b)(3)(B) of the Act
are addressed in Section 1208.16 of Title 8 of the Code of Federal Regulations (C.F.R.): “Withholding of
removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against
Torture.” Under 8 C.F.R. § 1208.16(b), the applicant bears the burden of proof that he is eligible for
withholding of removal under section 241(b)(3)(B) of the Act. Under 8 C.F.R. § 1208.16(c), “Eligibility
for withholding of removal under the Convention Against Torture,” the applicant bears the burden of proof
to establish that he would be tortured if removed to the proposed country of removal. Both sections
establish specific guidelines for evaluating the application, including an assessment of the applicant’s
credibility.
No. 07-4117 Zhao v. Holder Page 3
his opposition to China’s coercive family planning policies after his wife’s forced
abortion.3
Zhao also applied for withholding under the CAT. See 8 C.F.R. § 1208.16(c).
According to this provision, an applicant is eligible for withholding of removal if he can
show it is more likely than not that he would be tortured if removed to the proposed
country of removal. Zhao claimed fear of torture based on “the same explanation in
question one” (his opposition to his wife’s forced abortion).
A. Summary of Zhao’s Application for Withholding under the Act and the
CAT
According to Zhao, his wife, Qing Yang, was born on October 22, 1975. They
met when they were seventeen years old and fell in love. He describes having a
traditional marriage on July 15, 1993 (without civil registration) with the consent of his
father. His wife became pregnant five months later, in December of that year. Zhao
stated that, according to “previous China family planning policy,” you have to be
twenty-five or older to have a baby, and they were not old enough to obtain birth
permission.4 In “early February 1994,” the “government’s officer knows (sic) this news.
3
Two remedies are available to applicants claiming fear of persecution if returned to their native
countries: asylum and withholding of removal. If the alien applies within a year, he may seek asylum. In
his application, Zhao claimed that his attorney had applied for asylum within a year of his arrival, but “they
could not find my file.” Ultimately, his attorney conceded at his removal hearing that Zhao was not
eligible for asylum and in his appellate brief conceded likewise that this Court could not review any claim
for asylum as both the IJ and the BIA denied the claim as time-barred. Therefore, the only remedy
available to Zhao for a claimed fear of persecution is withholding of removal.
4
The Court’s research revealed mixed results. According to Article Six of the Marriage Law of
the People’s Republic of China, “In order to get married, the man shall not be younger than 22 years old
and the woman shall not be younger than 20. Late marriage and late child birth shall be encouraged.”
(From “Marriage Law of the People’s Republic of China,” available at
http://www.helplinelaw.com/law/china/marriage/mlaw.php). The Court’s research also revealed that
couples must obtain a marriage permit before they can obtain a birth permit. “Early marriage” occurs when
a woman under 20 years old marries a man less than 22 years old. If the government finds out that the wife
is pregnant, it will fine the couple 10,000 Yuan and immediately ask for abortion and sterilization. (Forced
Abortion and Sterilization in China: The View from the Inside: Hearing Before the Subcomm. on
International Operations and Human Rights of the Comm. on International Relations, 105th Cong. 29
(1998) (paraphrased testimony of Harry Hongda Wu, Executive Director, Laogai Research Foundation)
available at http://commdocs.house.gov/committees/intlrel/hfa49740.000/hfa49740_0f.htm).
However, according to an article in the British newspaper “The Independent,” the actual
marriage age may be older in some places. “With the marriage age in urban areas set around
25 years old, the first generation of ‘one-child’ couples is starting to emerge.” (Lorein Holland,
China Birth Rate Hit By Dragons, The Independent, February 1, 2000 at
http://www.independent.co.uk/news/world/asia/china-birth-rate-hit-by-dragons-724693.html).
No. 07-4117 Zhao v. Holder Page 4
They come to my house to take my wife away. We had a big fight. I tried to stop them
to touch my wife, so they pushed and hit me.” Zhao continues by saying he could not
stop them from taking his wife to the local hospital where “she was forced to take an
abortion.” He reports that he was detained in the police department for a month because
he did not agree with the action the Chinese government took against his wife forcing
her to have the abortion. He was fined 2000 RMB for release.5
Zhao describes that his wife was depressed for a long time after she lost her baby
and wanted to stay with her mother. Zhao felt “helpless, hopeless and angry.” He
recounts further that, one day, when he was walking down the street he “happened to see
the officer” who took his wife away. He describes that, “I was thinking about my baby
and my poor wife and I can’t help myself . . . I caught the officer and hit him a couple
of times and run (sic) away.” He states that he then went to his mother-in-law’s house
to see his wife and right after he arrived, his “dad called” and told him that “the police
officer came to my house to try to arrest me, so my father told me don’t come back, run
as far as possible.” Since then, Zhao reports on his application, “we are in government’s
‘not decent citizen list.’ We had no future in China. I was running around in my
relatives’ houses for about (sic) year.” Zhao describes that he then “found a snakehead
through a friend of mine” and left his country in February 1994.6 He reports entering
the United States (Los Angeles) in February 1995 without his wife. Zhao’s application
concludes that if he returned to China, he fears he would be tortured, harmed or
mistreated, specifically, by being jailed by the Chinese government.
B. Summary of Zhao’s Testimony at his Removal Hearing
Zhao’s removal hearing occurred on March 9, 2006, thirteen months after
completing the application. Zhao’s testimony was inconsistent with his application on
several key points.
5
RMB is the abbreviation for “Ren Min Bi,” or Yuan; approximately U.S. $285.00.
6
A “snakehead,” in criminal slang terms, is a human smuggler. Federal Bureau of Investigation,
The Case of The Snakehead Queen; Chinese Human Smuggler Gets 35 Years, FBI Headline Archives
(March 17, 2006), available at http://www.fbi.gov/page2/march06/sisterping031706.htm.
No. 07-4117 Zhao v. Holder Page 5
First, he testified that the individuals from the “family planning” center came for
his wife to force her to have the abortion on December 23, 1993. Second, Zhao testified
that when he encountered the “family planning” official on the street he “hit him once
and my friend push me away, take me away.” Third, he testified that a female cousin
called him at his mother-in-law’s house to warn him that police had come to arrest him.
Fourth, he testified that in the year between the February 1994 confrontation with the
officer when he “left home” and February 1995 when he came to the United States, he
went to Guangzhou and Shenzhen. He testified that he had stayed with friends in those
cities, and had no relatives in Hong Kong or Singapore. He then testified that he came
to the U.S. from Hong Kong where he had been “sightseeing,” but later testified that he
came to the U.S. from Singapore. Fifth, Zhao failed to testify on direct or cross-
examination that he was put on a “not decent citizen list” as stated on his application.
Additionally, Zhao testified that since coming to the United States he married a
woman who was in the process of obtaining her “green card.” At the hearing, he told the
IJ that this woman was three months pregnant.
Zhao provided no corroborating evidence at the hearing. Zhao testified that he
sent an affidavit from his father to his attorney long ago, but at the hearing only provided
a letter, untranslated from his native Chinese, to the IJ. He also testified that he did not
obtain an affidavit from his cousin because “it did not get to my mind at that time.” He
had no proof of his marriage in China or of the abortion.
C. Findings of the Immigration Judge
In her findings and conclusions, the Immigration Judge explained in great detail
the role of the IJ in the credibility determination, the importance of credibility to the
applicant’s burden of proof, and her analysis of the evidence before her.
The IJ elaborated that the credibility of the respondent was of extreme
importance in assessing his clams for relief and protection. Citing In re O-D-, 21 I&N
Dec. 1079 (BIA 1998), she stated, “Before determining whether the applicant meets the
statutory criteria required for withholding of removal under the [Immigration and
No. 07-4117 Zhao v. Holder Page 6
Naturalization] Act and withholding under the Convention Against Torture, this Court
must make a threshold determination of the alien’s credibility.” Citing In re Dass, 20
I&N Dec. 120, 124 (BIA 1989), she explained that the applicant’s testimony could be
sufficient as the sole evidence in support of a claim for relief and protection where it was
“believable, consistent and sufficiently detailed in light of general conditions in the
home country to provide a plausible and coherent account of the basis of the alleged
fear.” Although the lack of corroborating evidence is not necessarily fatal, the IJ
explained, quoting In re B-B-, 22 I&N Dec. 309 (BIA 1998), the applicant had an
affirmative duty to corroborate his claim to the degree he could or otherwise reasonably
explain the failure to do so. Zhao did neither.
The IJ wrote a twenty-three page analysis supporting her finding that Zhao was
not credible. In arriving at her conclusion, she considered: (1) the “rationality, internal
consistency and inherent persuasiveness of the respondent’s testimony” compared to his
written application for relief and found it was not believable or consistent; (2) his failure
to provide corroborating evidence, and found it was not reasonable; and (3) Zhao’s
explanations for the inconsistencies and failure to provide corroboration, and did not find
them convincing. She found that these inconsistencies went to the heart of Zhao’s
claims.
The IJ also explained that, even had she found Zhao credible, she would have
denied his application on the merits. Specifically, the IJ set forth in an additional seven
page analysis that: (1) Zhao could not meet his burden of proof with his general and
meager testimony; (2) China had changed country conditions making it safe for him to
return, as set forth in a U.S. Department of State Country Report on Human Rights
Practices; (3) Zhao could not show fear of persecution in his native Fujian Province
since the 2004 Profile of Asylum Claims and Country Conditions (the Profile) cited only
“isolated cases” of forced abortions and sterilizations there in the early 1990s;7
7
The IJ elaborated that “in light of this information, it is difficult for this Court to discern that the
respondent can establish that it is more likely than not that he would be subject to persecution if returned
to China based upon his first wife having purportedly undergone an abortion (despite the fact that this
Court doesn’t have a single piece of evidence to establish even the existence of this first wife, let alone a
pregnancy or abortion).”
No. 07-4117 Zhao v. Holder Page 7
(4) Zhao’s claim that he would encounter difficulties due to the child conceived in the
U.S. was too tenuous since, according to the Profile, “couples occasionally seek asylum
based on a claimed fear that an unauthorized child already born in the United States or
one that has been conceived here would prompt difficulties in China . . . [but] there is
no known policy as to such instances;” (5) Zhao’s claimed fear from having “no idea”
what local government would do to him and that he had “nothing left” in China was
vague; and (6) Zhao’s fear, after striking the “family planning” official, was of
prosecution for a criminal offense rather than persecution for political beliefs. Further
undercutting the merits of Zhao’s claim, the IJ found evidence, based on Zhao’s
testimony of unrestricted “sightseeing” in Hong Kong, that he could relocate within
China without fear of persecution.
In conclusion, the IJ stated,
The respondent has not been back to China, if you believe his testimony,
for more than ten years. This Court cannot, on this record, determine that
anyone would seek to target the respondent based upon any past
persecution that he claims he suffered as a result of his wife undergoing
the first forced abortion and his resistence to that or any well-founded
fear of future persecution arising out of any fear he has due to this attack
on this police officer.
Based on the foregoing, the IJ “den[ied] the respondent’s applications for withholding
under the Act and the Torture Convention on the merits.”
D. Findings of the Board of Immigration Appeals
Zhao appealed the IJ’s decision, asserting first that she erred by basing her
adverse credibility finding on “purported inconsistencies and omissions in the record”
when his testimony “did not preclude the possibility that he had suffered from physical
harm by the Chinese officials.” Next, Zhao argued that the IJ violated his “due process
rights” by failing to articulate any legal standards upon which she based her credibility
determination. Finally, Zhao asserted that the IJ’s decision to deny relief based on
adverse credibility was erroneous.
No. 07-4117 Zhao v. Holder Page 8
Using a clear error standard, the BIA reviewed the IJ’s factual determinations
and accepted her finding that Zhao was not credible. Citing Sylla v. INS, 388 F.3d 924,
926 (6th Cir. 2004) (holding that an adverse credibility determination must be supported
by specific reasons), the BIA concluded that the IJ’s decision was based on
“conspicuous, inadequately explained discrepancies” in the respondent’s testimony, and
between his testimony and his withholding application and statement.8 The BIA next
rejected Zhao’s assertion that the IJ failed to base her findings on applicable legal
standards. Finally, given Zhao’s lack of credibility, the BIA affirmed the IJ, finding “no
error in the Immigration Judge’s decision denying his application for removal.”
Like the IJ, the BIA found that, even if credible, Zhao could not advance a claim
for withholding of removal based on a fear that an unauthorized child conceived or born
in the United States would prompt difficulties in China. Citing In re J-W-S-, 24 I&N
Dec. 185 (BIA 2007) (concluding that the Chinese Government did not have a national
policy forcing sterilization of parents returning with a second child born outside of
China), the BIA determined that Zhao could not claim that he feared persecution for a
child conceived with his new wife because it would really be his “first” child and would
not violate China’s one-child policy.
The BIA also based its opinion in part on an issue not raised by the IJ. Noting
that the IJ “properly concluded” that Zhao and Qing were not legally married, the BIA
determined that respondent was ineligible for withholding on the “basis of his
girlfriend’s alleged coerced abortion.” Relying on In re S-L-L-, 24 I&N Dec. 1, at *10
(BIA 2006) (holding that an alien can establish fear of persecution based on spouse’s
forced abortion), the BIA ruled that Zhao could not assert Qing’s forced abortion as a
basis of fear of persecution because she was not his spouse.9
8
The BIA identified the document as an “asylum application,” but it was an application for
withholding.
9
In re S-L-L- was overruled to the extent it allowed the IJ or the BIA to find an applicant had per
se been persecuted on the basis of the applicant’s spouse’s forced abortion or sterilization. See In re J-S-,
24 I&N Dec. 520, 536-38 (A.G. 2008), discussed infra.
No. 07-4117 Zhao v. Holder Page 9
The BIA noted that Zhao also requested withholding of removal under the CAT.
The BIA determined, however, that Zhao failed to provide substantial evidence that he
was tortured in the past in China or that any government official would torture him upon
return. Thus, the BIA also denied Zhao’s request for withholding of removal under the
CAT.
The BIA “dismissed” Zhao’s appeal on August 9, 2007. Zhao now appeals the
BIA’s decision.
II. LAW AND ANALYSIS
A. Withholding of Removal under the Act and the CAT
To establish a claim for withholding of removal under section 241(b)(3)(B) of
the Act, an applicant must demonstrate a clear probability that his life or freedom would
be threatened in the country directed for removal on account of his race, religion,
nationality, membership in a particular social group, or political opinion. INS v. Stevic,
467 U.S. 407 (1984). See also footnote
2, supra. A person who has been forced to abort
a child, undergo sterilization, or who has been persecuted for refusal to undergo such a
procedure shall be deemed to have been persecuted on account of political opinion.
8 U.S.C. § 1101(a)(42); In re X-P-T-, 21 I&N Dec. 634 (BIA 1996).
This Court has elected to revise its initial opinion, now published at 553 F.3d 436
(6th Cir. 2009), because the government has asked us to incorporate the Attorney
General’s opinion in In re J-S-, 24 I&N 520 (A.G. 2008), a case that overrules any per
se grant of asylum to applicants whose spouses have been subject to forced abortion or
forced sterilization. Our acknowledgement of the Attorney General’s opinion does not
alter the substance, rationale, or ruling on the issues presented for review.
In re J-S- instructs the BIA and IJ to cease applying the rule, articulated in In re
C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) (en banc), and In re S-L-L-, 24 I&N Dec. 1 (BIA
2006) (en banc), that applicants whose spouses have been forced to undergo abortion or
No. 07-4117 Zhao v. Holder Page 10
sterilization are per se deemed to have been persecuted for the purposes of establishing
refugee status.10 The Attorney General held:
[T]he Board and Immigration Judges shall cease to apply the per se rule
of spousal eligibility articulated in C-Y-Z and S-L-L- and shall instead
engage in a case-by-case assessment of whether a section 601(a)
applicant who has not physically undergone a forced abortion or
sterilization procedure can demonstrate that (i) he or she qualifies as a
refugee under section 601(a) on account of persecution for ‘failure or
refusal’ to undergo such a procedure or for ‘other resistance’ to a
coercive population control program; (ii) he or she has a well-founded
fear of being forced to undergo an abortion or involuntary sterilization
procedure or of being persecuted for failing or refusing to undergo such
a procedure or for ‘other resistance’ to a coercive population control
program; (iii) the specific facts of his or her case justify asylum on
grounds other than those articulated in section 601(a); or (iv) he or she
satisfies the requirements for derivative asylum expressly set forth in
section 208(b)(3)(A) of the Act.
In re J-S-, 24 I&N Dec. at 537-38.
To establish eligibility for relief under the CAT, the applicant must show he
would be tortured if removed to the proposed country of removal. 8 C.F.R.
§ 1208.16(c). See footnote 2, supra.
B. Standard of Review
When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that
opinion, as supplemented by the BIA, becomes the basis for review. Ka v. Gonzales,
236 F. App’x 189, 191 (6th Cir. 2007) (citing Singh v. Ashcroft, 398 F.3d 396, 400-01
(6th Cir. 2005)).11 “This court reviews any legal conclusions de novo and factual
10
The Court is aware that Zhao applied for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(A) and that the standards for granting refugee status for asylum under 8 U.S.C.
§ 1101(a)(42)(B) and withholding of removal differ. Gilaj v. Gonzales, 408 F.3d 275, 283-84, 289-90 (6th
Cir. 2005) (citing INS v. Cardoza-Fonseca,
480 U.S. 421, 430-32 (1987)). The “clear probability”
standard used in withholding of removal cases is more stringent than the “well-founded fear of
persecution” standard used in asylum cases.
Id. Because the withholding of removal standard is higher
than that governing asylum, an applicant who fails to establish a well-founded fear of persecution for
purposes of establishing asylum is necessarily ineligible for withholding of removal. Lumaj v. Gonzales,
462 F.3d 574, 578 (6th Cir. 2006) (citing Mikhailevitch v. INS,
146 F.3d 384, 391 (6th Cir. 1998)).
11
See also Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008) (stating that this Court
reviews the decision of the BIA where the BIA renders its own decision).
No. 07-4117 Zhao v. Holder Page 11
findings and credibility determinations for substantial evidence.”
Id. The Court of
Appeals “directly reviews the decision of the IJ while considering the additional
comment made by the BIA.” Mapouya v. Gonzales,
487 F.3d 396, 405 (6th Cir. 2007).
“Although this Court reviews the BIA’s legal conclusions de novo, it must defer
to the BIA’s reasonable interpretations of the INA.” Koulibaly v. Mukasey, 541 F.3d
613, 619 (6th Cir. 2008) (quoting Patel v. Gonzales,
432 F.3d 685, 692 (6th Cir. 2005)).
“Factual findings are reviewed under a substantial evidence standard ‘in which we
uphold a BIA determination as long as it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’”
Id. (quoting Marku v.
Ashcroft,
380 F.3d 982, 986 (6th Cir. 2004)); Mapouya v. Gonzales,
487 F.3d 396, 405
(6th Cir. 2007). “Under this deferential standard, the court may not reverse the Board’s
determination simply because we would have decided the matter differently.”
Koulibaly,
541 F.3d at 619 (quoting Ouda v. INS,
324 F.3d 445, 451 (6th Cir. 2003)) (internal
quotation marks and citations omitted). “Unless ‘any reasonable adjudicator would be
compelled to conclude to the contrary,’ the BIA’s findings of fact are ‘conclusive.’”
Id.
(quoting 8 U.S.C. § 1252(b)(4)(B)).
Facts relevant to credibility determinations as applied to withholding of removal
and relief under the CAT are reviewed under this same standard. Id. (citing Sylla v. INS,
388 F.3d 924, 925 (6th Cir. 2004)) (applying the substantial evidence standard to a
credibility determination); Almuhtaseb v. Gonzales,
453 F.3d 743, 749 (6th Cir. 2006)
(applying § 1252(b)(4)(B) to a decision requesting withholding under the Act and the
CAT). “Thus, the BIA’s determination should be upheld unless evidence ‘not only
supports a contrary conclusion, but indeed compels it.’”
Koulibaly, 541 F.3d at 619-20
(quoting
Ouda, 324 F.3d at 451) (internal citation omitted and emphasis in original).12
12
At the request of the government, the Court has eliminated reference to the credibility
provisions in the REAL ID Act, which were not in effect at the time of Zhao’s application in 2003.
Eliminating this language does not affect our ultimate ruling.
No. 07-4117 Zhao v. Holder Page 12
1. Merits of Zhao’s Applications under the Act and the CAT
In this case, the BIA adopted the IJ’s finding that Zhao was not credible and
concurred with the IJ that, even if credible, Zhao was not entitled to withholding based
on a fear of persecution for a child born in the United States. The basis for this Court’s
review, then, is the IJ’s finding that Zhao was not credible and, even if credible, could
not advance a valid claim of fear of persecution based on a second child born in the
United States. Ka, 236 F. App’x at 191.13
However, on appeal, Zhao has not challenged the determination by the IJ and the
BIA that the child with his current spouse in the U.S. provided no basis for withholding
of removal. Thus, we will not consider the issue. “It is a well-established rule that this
Court will not consider claims that are presented for the first time on appeal nor
arguments that are not properly raised below.” Berryman v. Rieger, 150 F.3d 561, 568
(6th Cir. 1998).
Therefore, we begin our analysis by reviewing the finding of the IJ that Zhao
lacked credibility. We consider each of the grounds relied upon by the IJ, and adopted
by the BIA, in order to determine whether the adverse credibility determination was
supported by substantial evidence, or whether a reasonable adjudicator would be
compelled to conclude to the contrary. Koulibaly, 541 F.3d at 619-20.
a. The Date of the Forced Abortion
In his application, Zhao stated that his wife’s forced abortion was “earlier
February, 1994,” yet in his testimony he stated it was December 1993. He could not
explain the inconsistency and had no corroborating evidence of the marriage or the
abortion. The forced abortion goes to the heart of his claim for withholding based on
fear of persecution, and the IJ properly found inconsistencies on this topic significant.
13
The BIA made the additional argument that, even if credible, Zhao could not claim fear of
persecution for his former wife’s forced abortion as she was not really his wife but his girlfriend. Because
this Court affirms on other grounds, we need not further consider the BIA’s additional argument.
No. 07-4117 Zhao v. Holder Page 13
b. The Assault of the “Family Planning” Officer
In his application, Zhao indicated “I caught the officer and hit him a couple times
and run away.” In his testimony he stated that he was out on the street with a friend and
“hit [the officer] once.” The IJ properly placed importance on this discrepancy as this
encounter tended to enhance Zhao’s claim of fear of persecution from the officials. The
IJ noted that, standing alone, she would “overlook this inconsistency” except that it was
attached to another--the warning call.
c. The Warning Call at Zhao’s Mother-in-Law’s Home
Zhao’s application stated that the call came from his father, but he testified that
it came from a female cousin. The IJ was troubled by this inconsistency, especially since
Zhao had an opportunity to review his application before the hearing and did not change
the statement that his “dad” called him. While we are not as troubled with this
inconsistency (the call may have come from a cousin on behalf of his father), the IJ’s
finding is supported by the record and we defer to her determination. Koulibaly, 541
F.3d at 619.
d. Zhao’s Whereabouts after Fleeing his Home
One of the most confusing and conflicting portions of Zhao’s testimony was his
whereabouts after his father or cousin told him the police had come after him. Whereas
his application stated that he was “running around at my relatives’ houses” for about a
year after this, he testified that he was sightseeing in several different cities for a few
months. He testified next that he came to the U.S. from Hong Kong, then contradicted
himself during the hearing by stating that he arrived from Singapore. The IJ found
Zhao’s explanations to be “almost incoherent” and characterized them as attempts to
“weave stories” to cover the inconsistencies. He had no evidence to corroborate where
he was. The IJ properly noted that this contradictory testimony “hangs together” with
other inconsistencies eroding Zhao’s credibility. See In re A-S-, 21 I&N Dec. 1106,
1112 (BIA 1998) (quoting In re Lugo-Guadiana, 12 I&N Dec. 726, 729 (BIA 1968)).
No. 07-4117 Zhao v. Holder Page 14
e. The “Not Decent Citizen” List
Zhao’s application stated that he was on a “not decent citizen list,” yet he forgot
about this until examined by the IJ. Although this inconsistency may be the fault of his
counsel for failing to elicit this during his direct examination, the fact remains that the
IJ, present for Zhao’s testimony, found it to be relevant to his credibility. We will not
disturb this finding.
f. Corroborating Evidence
The IJ properly focused on Zhao’s failure to provide corroborating evidence,
especially where his testimony was riddled with inconsistencies. She was correct to find
that the absence of even a letter from his father or cousin to confirm his testimony further
undermined his credibility.
Courts upholding an IJ’s adverse credibility findings have done so on grounds
similar to those advanced by the IJ.14 The inconsistencies the IJ noted, and the BIA
adopted, related to issues tending to enhance Zhao’s claims of persecution. As the
government noted, Zhao could not identify evidence sufficient to compel a conclusion
contrary to the IJ’s conclusion where the record provided numerous omissions and
inconsistencies relating to the heart of his claim. Combined with a complete lack of
corroborating evidence, these findings, like those in similar cases cited supra, constitute
substantial evidentiary support of adverse credibility. We conclude that the IJ
appropriately focused on five significant discrepancies or inconsistencies related to the
14
For example, adverse credibility findings were upheld in Shjefni v. Gonzales, 229 F. App’x 388,
390 (6th Cir. 2007) (holding that contradictory testimony, discrepancies between the application and
testimony, and lack of corroborating evidence on physical mistreatment during incarceration and detention
by police supported adverse credibility finding), and Dashi v. Gonzales, 214 F. App’x 581, 584-85 (6th
Cir. 2007) (concluding that discrepancies between the application and testimony regarding details of
mistreatment and lack of corroborating evidence, such as witness statements from his wife or letters from
his political party to the effect that he was persecuted, supported adverse credibility finding). But see
Koulibaly v. Mukasey, 541 F.3d 613, 624 (6th Cir. 2008) (holding that minor inconsistencies, including
those regarding her location when arrested, whether she was beaten, her husband’s arrest and her escape
from hospital did not support adverse credibility determination), and Mapouya v. Gonzales,
487 F.3d 396,
406-10 (6th Cir. 2007) (holding that substantial evidence supported credibility where IJ failed to explain,
for example, why applicant’s use of “fighter” in one instance and “supporter” in another substantially
changed his application and where IJ relied on inconsistencies that were irrelevant to fear of persecution).
No. 07-4117 Zhao v. Holder Page 15
heart of his claim and properly considered Zhao’s lack of corroboration. We find no
evidence compelling a different conclusion.
Facts relevant to credibility determinations regarding applications for
withholding under the Act and the CAT are reviewed under the same standard.
Koulibaly, 541 F.3d at 619. Since Zhao has failed to satisfy the threshold showing of
credibility to warrant withholding of removal under the Act, it logically follows that he
cannot demonstrate that he is entitled to relief under the CAT. Thus we also reject
Zhao’s claims under the CAT.
2. Evaluation Under an “Inappropriately Stringent Standard”
In his brief, Zhao argues that the credibility findings should be reversed because
the IJ held him to an “inappropriately stringent standard.”15 The IJ meticulously
explained the bases for her conclusions and properly applied the law. Therefore, we
reject Zhao’s contention.
III. CONCLUSION
The IJ in this case took great care to fully explain her analysis and the basis for
her decision that Zhao was not credible. Our review reveals that her findings were
supported by reasonable, substantial and probative evidence in the record. Mapouya,
487 F.3d at 405. There is nothing in the record to compel us to reach a contrary
conclusion.
Koulibaly, 541 F.3d at 619-20. We therefore affirm the BIA’s adoption of
the IJ’s decision that Zhao was not credible and not entitled to withholding of removal
under section 241(b)(3)(B) of the Act or relief under the CAT.
15
Citing a Second Circuit case, Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir. 2003), Zhao
contends that this stringency renders the IJ’s decision an error in law requiring de novo review by this
Court. In Secaida-Rosales, however, the IJ criticized minor discrepancies that went to collateral matters.
The IJ in this case focused on major discrepancies on several critical issues enhancing Zhao’s alleged fear
of persecution.
