Bao Qing v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [09-60786 Affirmed ] Judge: JLW , Judge: RHB , Judge: FPB Mandate pull date is 11/22/2010 [09-60786]

Bao Qing v. Eric Holder, Jr.

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Case: 09-60786

Document: 00511248711

Page: 1

Date Filed: 09/29/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60786 S u m m a r y Calendar September 29, 2010 Lyle W. Cayce Clerk

B A O CHENG QING, P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A094 939 865

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* B a o Cheng Qing, a native and citizen of the People's Republic of China, a p p lie d for asylum, withholding of removal, and relief under the Convention A g a in s t Torture (CAT), based on claimed persecution for supporting Falun Gong, a group that combines mystical tenets with traditional Chinese exercise d is c ip lin e and is presently banned in China. His application was denied based o n the adverse credibility determination of the immigration judge (IJ), which

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511248711 Page: 2 No. 09-60786

Date Filed: 09/29/2010

w a s upheld by the Board of Immigration Appeals (BIA) when it dismissed Qing's a p p e a l. A s detailed below, Qing contends the record does not support the IJ's and B I A 's adverse credibility determinations. This court has authority to review o n ly the order of the BIA unless the underlying decision of the IJ influenced the B I A 's decision. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Because the I J 's findings influenced the BIA's decision to affirm the denial of Qing's a p p lic a t io n , this court reviews both decisions. Zhu v. Gonzales, 493 F.3d 588, 5 9 3 -9 4 (5th Cir. 2007). Q in g maintains: he fully explained why he filed an initial false

a p p lic a t io n ; his explanation was reasonable enough to overcome any adverse in fe r e n c e ; he did not present inconsistent evidence; the inconsistencies identified b y the IJ and BIA do not concern the basis of his claim and are insufficient to s u s t a in an adverse credibility finding; and, the IJ's finding that his demeanor r e fle c t e d poorly on his credibility should be given little weight because the IJ fa ile d to give a specific description of his demeanor. A n immigration court's findings of fact are reviewed for substantial e v id e n c e . E.g., Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). That an alien is not eligible for asylum, withholding of removal, or relief under the CAT are fin d in g s of fact reviewed for substantial evidence. Zhang v. Gonzales, 432 F.3d 3 3 9 , 344-45 (5th Cir. 2005). In other words, an immigration court's factual fin d in g s will not be reversed unless "the evidence was so compelling that no r e a s o n a b le factfinder could conclude against it". Wang, 569 F.3d at 537. Under the REAL ID Act of 2005, "an IJ may rely on any inconsistency or o m is s io n in making an adverse credibility determination as long as the totality o f the circumstances establishes that an asylum applicant is not credible". Id. at 538 (emphasis in original, internal quotation marks and citation omitted); see a ls o 8 U.S.C. § 1158(b)(1)(B)(iii). As stated, we will "defer therefore to an IJ's c r e d ib ilit y determination unless, from the totality of the circumstances, it is 2

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p la in that no reasonable fact-finder could make such an adverse credibility r u lin g " . Wang, 569 F.3d at 538 (internal quotation marks and citation omitted). Q in g admitted to falsely claiming, in his first application, that he was p e r s e c u t e d for violating the Chinese government's family-planning policy; he c la im e d he lied because he feared persecution by the Chinese government if he t o ld immigration officials he was persecuted for supporting Falun Gong. The IJ d e t e r m in e d reasonably that Qing's explanation was incredible in the light of: the large sum of money ($70,000) he paid to be smuggled into the United States, p u r p o r t e d ly because he was persecuted for supporting Falun Gong; his c o n c e s s io n that he was already identified by the Chinese government as a Falun G o n g supporter. T h e adverse credibility finding is also supported by: the IJ's findings that Q in g 's demeanor reflected poorly on his credibility; Qing offered inconsistent and fa b r ic a t e d testimony and evidence in support of his application; Qing points to n o evidence that compels a contrary conclusion, see id. at 539-40; and, Qing's a s s e r t io n that these inconsistencies do not concern the basis of his claim and, t h e r e fo r e , do not compel an adverse credibility finding is based on the pre-REAL I D Act standard for assessing credibility. I n the light of Qing's false claim in his first application and the other in c o n s is t e n c ie s and incredible testimony found by the IJ, it is not plain that "no r e a s o n a b le fact-finder could make such an adverse credibility ruling". Id. at 538 (in t e r n a l quotation marks and citation omitted). Qing's claims (asylum,

w it h h o ld in g of removal, and relief under the CAT) were all based on persecution fo r supporting Falun Gong. Because the credibility determinations of the IJ and B I A withstand review, the decision to deny Qing relief is supported by s u b s t a n t ia l evidence. See Zhang, 432 F.3d at 344-45. P E T I T I O N DENIED.

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