Xian Jing v. Lynch

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and Allison Dale Burroughs,* U.S. District Judge. Published. *Of the District of Massachusetts, sitting by designation. [16-1290]

Case: 16-1290

Document: 00117100878

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Date Filed: 01/04/2017

Entry ID: 6059547

United States Court of Appeals
For the First Circuit
___________________
No. 16-1290
YE XIAN JING,
a/k/a XIAN JING YE,
Petitioner,
v.
LORETTA E. LYNCH,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
_________________
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
_________________
Before
Lynch and Selya, Circuit Judges,
and Burroughs, District Judge.
_________________
Gerald Karikari and Karikari & Associates, P.C. on brief for
petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, United States Department of Justice,
Emily Anne Radford, Assistant Director, and Aric A. Anderson, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
_________________
January 4, 2017
_________________



Of the District of Massachusetts, sitting by designation.

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BURROUGHS, District Judge.

Date Filed: 01/04/2017

Entry ID: 6059547

Ye Xian Jing a/k/a Xian Jing

Ye (“Ye”), a native of China, filed a petition for review of a
Board of Immigration Appeals (“BIA”) decision, which dismissed his
appeal of the Immigration Judge’s (“IJ”) denial of his applications
for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Because the BIA’s decision was
supported by substantial evidence, we deny the petition.
I.

BACKGROUND
On July 19, 2012, Ye, a citizen of China, entered the

United States without admission or parole in Arizona. He was
detained by the Department of Homeland Security (“DHS”), and
interviewed (the “DHS Interview”) on July 19, 2012. The record of
the DHS Interview includes a three-page “Record of Sworn Statement
in Proceedings Under Section 235(b)(1) of the Act” (hereinafter,
the “Sworn Statement”) and a one-page “Jurat for Record of Sworn
Statement in Proceedings under Section 235(b)(1) of the Act”
(hereinafter, the “Jurat”).1
The Sworn Statement, dated July 19, 2012, indicates that
a Mandarin interpreter was used, and that Ye was advised by a

1

During the hearing before the IJ, the Sworn Statement and
Jurat were entered as a single exhibit. Ye testified that his
signature was on “each and every page,” including the Jurat. At
the hearing, Ye never raised any issues regarding the reliability
of the Jurat based on its date or distinguished it from the Sworn
Statement. Therefore, unless otherwise noted, the Jurat and the
Sworn Statement will be collectively referred to as the DHS
Interview.

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Border Patrol agent that “U.S. law provides protection to certain
persons who face prosecution, harm or torture upon return to their
home country.” The Border Patrol agent also informed Ye that “[i]f
you fear or have a concern about being removed from the United
States or about being sent home, you should tell me so during this
interview because you may not have another chance.” Ye said he
understood. When asked why he came to the United States, Ye
answered “I just wanted to come to the United States.” When asked
if he wanted to add anything at the end of the interview, Ye
indicated that there was nothing else he wanted to say. Despite
being

specifically

warned

that

he

might

not

have

another

opportunity to raise his fears or concerns regarding removal later,
Ye did not raise his alleged past persecution or fear of future
persecution. Ye signed all three pages of the Sworn Statement.
The Jurat, dated July 20, 2012, is also signed by Ye,
and appears to be part of the same interview documented in the
Sworn Statement. The Jurat contained Ye’s answers to a series of
questions, including that he had left China “to live and work,”
that he had no fear or concern about returning, and that he would
not be harmed if he returned.
Thereafter, Ye expressed a fear of returning to China,
and in November 2012 he was given a “credible fear interview,”
where he stated that when he was in China he had been arrested and
beaten by Chinese authorities at an unauthorized house church and

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then detained for over a month. On November 14, 2012, an asylum
officer determined that Ye had expressed a credible fear of
persecution. He was subsequently charged with being removable as
an alien seeking admission without required documents. He filed an
asylum application, requested withholding of removal, and sought
protection under CAT. In response, DHS submitted the July 19 and
July 20, 2012 Sworn Statement and Jurat.
On September 4, 2014, the IJ held a hearing on the asylum
application,

request

for

withholding

of

removal,

and

CAT

protection claim. Ye and a friend with whom he attended church in
the

United

Department

States
report

testified,
on

and

religious

he

submitted

freedom

in

a

China.

2012

State

During

his

testimony, Ye conceded his removability, but testified that he
feared religious persecution in China if he returned and that he
had suffered a specific instance of religious persecution by
Chinese officials in the past. Ye admitted that during the DHS
Interview he had answered questions through an interpreter, that
the interpreter had read back the answers, and that Ye had then
signed all of the pages, indicating that the answers were accurate
and truthful. Ye also testified that he had not understood all of
the questions, that he had been nervous during the interview, and
that he had feared he would be sent back to China for saying the
“wrong thing.” At no point did he distinguish between the Sworn
Statement and the Jurat. The 2012 State Department report on

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religious freedom in China, submitted to the IJ, contained some
general evidence of problems certain Christians have faced in some
parts of China.
At the conclusion of the hearing, the IJ denied all of
Ye’s claims and ordered him removed from the United States. In
support of his decision, the IJ found that Ye was not credible.
Relying

largely

on

the

DHS

Interview,

he

reasoned

it

was

“absolutely inconceivable that if those events [being beaten and
kicked by the police, arrested, and detained in China] had occurred
and if indeed the respondent had left China for the sole purpose
of escaping that persecution, that he would have failed to mention
those events to the Border Patrol agents.” The IJ found that Ye
“ha[d] failed to provide a rational and reasonable explanation for
his failure to state his claim to the Border Patrol agent.”
Ye appealed the decision of the IJ, noting, inter alia,
that the dates on the Sworn Statement and Jurat did not match. On
February 18, 2016, the BIA dismissed Ye’s appeal. The BIA upheld
the

IJ’s

denial

of

the

asylum

and

withholding

of

removal

applications, and concluded that Ye’s CAT claim failed because
“the facts do not demonstrate that the respondent would more likely
than not be tortured in China by or with the acquiescence of a
public official or other person acting in an official capacity.”
In reaching this outcome, the BIA adopted and affirmed the IJ’s
adverse credibility determination because “the IJ articulated

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specific, cogent reasons based in the record for finding that the
respondent was not credible.” The BIA noted that Ye raised the
issue of the Jurat’s date for the first time on appeal, but
concluded that he “ha[d] not shown that this affects the substance
of his interview.” In upholding the adverse credibility finding,
the BIA emphasized that Ye had an interpreter during the DHS
Interview, that he understood the interpreter, that he was re-read
his answers, and that he signed the interview record attesting
that his answers were truthful and accurate. The BIA additionally
noted that Ye did not tell the Border Patrol agent that he was
nervous or unable to understand the questions. The BIA also held
that

Ye’s

alternative

argument,

that

despite

the

adverse

credibility determination he had established a well-founded fear
of future persecution, was not raised below, and further, that it
was meritless based on the record. On March 14, 2016, Ye petitioned
for review of the dismissal.
II.

STANDARD OF REVIEW
“We review the decision of the BIA and ‘those portions

of the [IJ]’s opinion that the BIA has adopted.’” Pheng v. Holder,
640 F.3d 43, 44 (1st Cir. 2011) (quoting Romilus v. Ashcroft, 385
F.3d 1, 5 (1st Cir. 2004)). Questions of law are reviewed de novo,
with appropriate deference to the agency’s interpretation of the
statute it administers. Romilus, 385 F.3d at 5. We review questions
of

fact,

including

credibility

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determinations,

under

the

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substantial evidence standard, reversing “only if ‘a reasonable
adjudicator would be compelled to conclude to the contrary.’”
Pheng, 640 F.3d at 44 (quoting Castillo-Diaz v. Holder, 562 F.3d
23, 26 (1st Cir. 2009)) (further internal quotation marks omitted).
III. DISCUSSION
Ye

has

the

burden

of

establishing

eligibility

for

asylum, withholding of removal, or CAT protection. See Wen Feng
Liu v. Holder, 714 F.3d 56, 60 (1st Cir. 2013). In his petition
for review, with respect to his asylum application, Ye argues (1)
that the IJ clearly erred in finding him not credible, and (2)
that

regardless

of

any

adverse

credibility

finding,

he

independently established a well-founded fear of persecution. Ye
makes the same arguments with respect to his application for
withholding for removal. Finally, he argues that no substantial
evidence supported the rejection of his CAT claim.
A. Asylum
To qualify for asylum, an applicant must be a “refugee,”
who faces “persecution or [has] a well-founded fear of persecution
on

account

of

race,

religion,

nationality,

membership

in

a

particular social group, or political opinion” in his country of
citizenship or where he “last habitually resided.” 8 U.S.C. §§
1101(a)(42)(A), 1158(b)(1)(A). “A well-founded fear of future
persecution must be both subjectively authentic and objectively
reasonable,” so that “an alien must show that he genuinely fears

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persecution were he to be repatriated and that his fear has an
objectively reasonable basis.” Villafranca v. Lynch, 797 F.3d 91,
95 (1st Cir. 2015). A well-founded fear of persecution is presumed
if the applicant establishes past persecution, but the presumption
can be rebutted. 8 C.F.R. § 1208.13(b). The crux of Ye’s petition
is

his

challenge

to

the

IJ’s

determination

that

he

was

not

credible, and the BIA’s acceptance of that adverse credibility
determination. Ye also argues that, even if the adverse credibility
determination stands, he established a well-founded fear of future
persecution.
Credible testimony can satisfy an applicant’s burden of
proof, but an IJ is “entitled to evaluate the asylum-seeker’s
credibility.” Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir.
2008). Congress codified guidance on how a factfinder should make
credibility determinations in such cases:
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness
of the applicant or witness, the inherent plausibility
of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under oath,
and considering the circumstances under which the
statements were made), the internal consistency of each
such statement, the consistency of such statements with
other evidence of record (including the reports of the
Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or
any other relevant factor.

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U.S.C.

§

Page: 9

1158(b)(1)(B)(iii).

Date Filed: 01/04/2017

An

applicant’s

Entry ID: 6059547

demeanor

at

a

hearing, which the IJ is best positioned to assess, “is often a
critical factor in determining [his] truthfulness.” Wen Feng Liu,
714 F.3d at 61 (quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st
Cir. 2004)). An IJ may ultimately disregard or discount incredible
evidence. Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007).
There

was

substantial

evidence

supporting

the

IJ’s

adverse credibility determination and the BIA’s acceptance of it.
In supporting the determination, the IJ and BIA relied heavily on
the

DHS

Interview

and

the

fact

that

Ye

omitted

any

mention

whatsoever of past persecution, a fear of future persecution, or
events that might imply such a fear despite the fact that he
received a direct instruction soliciting such information and a
warning that he might not have the opportunity to disclose his
fear later. Further, the IJ and BIA relied specifically on the
Jurat in which Ye affirmatively stated that he was not afraid of
returning home and that he would not be harmed if he did so. In a
situation where “petitioner has told different tales at different
times,” “a judge is entitled to ‘sharply discount’ the testimony.”
Muñoz-Monsalve, 551 F.3d at 8 (quoting Pan, 489 F.3d at 86). The
BIA also explained in detail that Ye’s testimony before the IJ
supported the IJ’s reliance on the DHS Interview; namely, Ye’s own
testimony confirmed that he understood the questions, that the
interpreter read the answers back to him to verify their accuracy,

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and that Ye signed the interview attesting to its accuracy and
truthfulness. Under § 1158(b)(1)(iii), the IJ was entitled to rely
on the DHS Interview, its surrounding circumstances, the omissions
it evidenced, and its inconsistency with both the subsequent
credible fear interview and Ye’s hearing testimony in reaching the
adverse

credibility

determination.

Because

“determining

credibility is a matter of sound judgment and common sense . . . ,
when

an

alien’s

earlier

statements

omit

any

mention

of

a

particularly significant event or datum, an IJ is justified—at
least in the absence of a compelling explanation—in doubting the
petitioner’s veracity.” Wen Feng Liu, 714 F.3d at 61 (quoting
Muñoz-Monsalve, 551 F.3d at 8).
The

IJ

and

BIA

did

not

err

in

finding

that

Ye’s

explanations for the inconsistency between the DHS Interview and
later claims, which included nerves, lack of understanding, and
the difficult journey, were insufficiently compelling. The BIA
noted that Ye never told the Border Patrol agent that he could not
understand the questions or that he was too nervous to be accurate.
The BIA clearly articulated its reasons for treating the DHS
Interview as reliable: the interview record and Ye’s subsequent
testimony

indicated

that

an

interpreter

was

used,

that

Ye

understood the questions asked, and that he attested to the
accuracy and truthfulness of his answers. In finding Ye not
credible

in

his

explanation

that

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he

did

not

understand

the

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questions, the IJ emphasized that Ye had admitted to answering at
least some of the questions during the DHS Interview correctly,
which undermined his claim that he could not understand what he
was being asked. The IJ reasonably found it implausible that Ye
would have so blatantly omitted any mention of the alleged past
persecution from the DHS Interview if it had actually happened.
Finally, the BIA explained that it relied on the DHS Interview
despite the different dates on the Jurat and the Sworn Statement
because Ye did not raise the issue of the dates before the IJ and
also failed to explain why any such discrepancy substantially
affected the record.
Ye next argues that the border interview was unreliable
and urges us to assess its reliability under the Second Circuit
standard as set forth in Ramsameachire v. Ashcroft, 357 F.3d 169,
180 (2d Cir. 2004). This Circuit does not require IJs to undertake
an inquiry into the reliability of initial interviews with Border
Patrol agents using specifically enumerated factors. See, e.g.,
Conde Cuatzo v. Lynch, 796 F.3d 153, 156 (1st Cir. 2015) (finding
inconsistencies across three interviews, including omissions in
initial interview with Border Patrol, to support IJ’s adverse
credibility determination); see also Jianli Chen v. Holder, 703
F.3d 17, 23 (1st Cir. 2012) (holding that BIA could rely on a form
customarily prepared by Border Patrol agents in supporting adverse
credibility determination because “[i]t is normally enough if the

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IJ reasonably finds a proffered piece of evidence to be reliable
and its use to be fundamentally fair”). Ye has failed to persuade
us that the current case law in this Circuit and the applicable
statutes

provide

insufficient

guidance

on

making

credibility

determinations. Section 101(a)(3) of the REAL ID Act outlines how
IJs must make credibility determinations, and was added following
the decision in Ramsameachire. See REAL ID Act of 2005, Pub. L.
No. 109–13, Div. B, Title I, § 101(a)(3), 119 Stat. 302, 303
(codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). Section 101(a)(3)
specifically allows IJs to consider “the consistency between the
applicant’s or witness’s written and oral statements (whenever
made

and

whether

or

not

under

oath,

and

considering

the

circumstances under which the statements were made).” 8 U.S.C. §
1158(b)(1)(B)(iii). For all the reasons already stated, including
the confirmatory statements by Ye during his testimony before the
IJ, the BIA’s reliance on the Sworn Statement and Jurat was
reasonable

and

substantial

supported

evidence

by

substantial

supported

the

evidence.

adverse

Thus,

credibility

determination. Given that Ye’s claim of past persecution relied on
his credibility, the BIA also did not err in concluding that Ye
failed to establish his eligibility for asylum based on past
persecution.
Ye claims that, regardless of any adverse credibility
finding, he nonetheless adequately established a well-founded fear

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of future persecution. The argument runs as follows: because there
is a pattern or practice of persecuting Christians in China and
because Ye is Christian, Ye had a well-founded fear of future
persecution. The BIA noted that Ye presented this argument for the
first time before the BIA. He did not argue before the IJ that,
independent of his claims of past persecution, he had a wellfounded fear of future persecution because there was a pattern or
practice of persecuting Christians in China. Thus, the BIA did not
err

in

concluding

that

the

argument

was

not

exhausted.

See

Kechichian v. Mukasey, 535 F.3d 15, 22 (1st Cir. 2008).
Nor did the BIA err in finding that the claim lacked
merit, in any event. Asylum “solely based on [an applicant’s]
membership in a protected group” is only available in “some extreme
cases.” Rasiah v. Holder, 589 F.3d 1, 5 (1st Cir. 2009) (emphasis
omitted). The standard for proving a “pattern or practice” of
persecution “is demanding and in substance requires a showing of
regular

and

widespread

persecution

creating

a

reasonable

likelihood of persecution of all persons in the group.” Id. at 5.
Here, the only evidence submitted regarding a pattern or practice
of

persecution,

independent

of

Ye’s

discredited

testimony

regarding past persecution, was the 2012 State Department report
on religious freedom in China. The report, which indicates that
certain Christians can avoid persecution in certain areas under
certain circumstances, is not enough. See Chen Qin v. Lynch, 833

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F.3d 40, 45 (1st Cir. 2016) (holding that State Department report
was “not enough to establish a pattern or practice of persecution”
of Christians in China). Moreover, Ye’s failure to tie the report
to his specific circumstances proves fatal to his argument. See
id. (“Nor is [the State Department report] sufficiently related to
her

own

situation

to

be

persuasive.”).

We

have

repeatedly

recognized that the BIA is justified in concluding that there is
no well-founded fear of future persecution based on a State
Department report alone, when no connection is established between
the

incidents

in

the

report

and

the

petitioner’s

specific

circumstances. See, e.g., Xian Tong Dong v. Holder, 696 F.3d 121,
126 (1st Cir. 2012) (“[O]verview reports . . . ‘do very little to
substantiate’ claims of persecution as they do not ordinarily
‘either

directly

or

by

reasonable

implication,

connect

these

foibles with the petitioner’s particular situation.’” (quoting
Lopez Perez v. Holder, 587 F.3d 456, 461 (1st Cir. 2009))); see
also Hong Chen v. Holder, 558 F. App’x 11, 16 (1st Cir. 2014)
(collecting cases). Thus, because he is unable to establish either
past persecution or a well-founded fear of future persecution,
Ye’s asylum claim fails.
B. Withholding of Removal
To qualify for withholding of removal, an applicant must
demonstrate that it is more likely than not that his “life or
freedom would be threatened in that country because of the alien’s

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race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R.
§ 1208.16(b). Because the bar for withholding of removal is higher
than

the

bar

for

asylum,

an

applicant

cannot

prevail

on

a

withholding application if he fails to establish the elements of
an asylum claim. Jianli Chen, 703 F.3d at 27; see also MendezBarrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010) (“After all,
withholding of removal requires a showing, by a clear probability,
that an alien will more likely than not face persecution if
repatriated.”). Because his asylum claim fails, Ye’s withholding
of removal claim necessarily fails as well.
C. CAT Protection
Finally,

CAT

protection

requires

an

applicant

to

demonstrate that in the proposed country of removal, “it is more
likely than not that he or she would be tortured” by or with the
acquiescence of the government. 8 C.F.R. § 1208.16(c)(2); MendezBarrera, 602 F.3d at 27. Ye failed to present any credible,
“particularized facts relating to [his] specific claim that [he]
would face a likelihood of government-sanctioned torture.” MendezBarrera, 602 F.3d at 28. Besides his discredited testimony, Ye
presented a country report on religious freedom in China from 2012.
Country reports “are rarely dispositive” because of their “generic
nature,” id., and Ye does not persuade us that the IJ or BIA erred

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in their determinations. Thus, substantial evidence existed to
support the BIA’s rejection of Ye’s CAT claim.
IV.

CONCLUSION
For the foregoing reasons, the petition for review is

DENIED.

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