Guan v. Gonzales

• Decision Date: 23 December 2005
• Docket Number: Docket No. 03-40574-AG.
• Citation: 432 F.3d 391
• Parties: Yun-Zui GUAN, Petitioner, v. Alberto R. GONZALES, United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

432 F.3d 391

Yun-Zui GUAN, Petitioner, v. Alberto R. GONZALES, United States Attorney General,^* Respondent.

Docket No. 03-40574-AG.

United States Court of Appeals, Second Circuit.

Argued: December 8, 2005.

Decided: December 23, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas V. Massucci, New York, NY.

Susan Lindquist, Assistant United States Attorney (Timothy M. Burgess, United States Attorney for the District of Alaska, on the brief), United States Attorney's Office for the District of Alaska, Anchorage, AK.

Before: NEWMAN, CABRANES, and HALL, Circuit Judges.

PER CURIAM.

We consider here whether (1) in an instance where the BIA agrees with the IJ's adverse credibility determination and, without rejecting any of the IJ's grounds for decision, emphasizes particular aspects of that decision, we may base our decision on a ground of the IJ's decision not explicitly discussed by the BIA; and (2) in the circumstances presented, adverse credibility findings of the BIA and IJ were based on substantial evidence insofar as they relied on inconsistencies between petitioner's account of persecution in an airport interview and her subsequent testimony before the IJ.

BACKGROUND

Yun-Zui Guan ("Guan"), a native and citizen of the People's Republic of China ("China"), petitions for review of an August 23, 2003 decision of the Board of Immigration Appeals ("BIA"). The BIA affirmed a November 8, 2001 decision of an immigration judge ("IJ") which denied petitioner's application for asylum, withholding of removal to China, and protection under Article 3 of the United Nations Convention Against Torture ("CAT").¹

In proceedings before the IJ, Guan alleged that on approximately seven or eight occasions between April 1998 and June 1999, Chinese police confiscated property from the clothing store that she operated. Guan asserted that following a June 1, 1999 incident in which police officers purloined a large amount of merchandise, she mailed a letter the next day to city government officials complaining of corruption among the police and local authorities. According to Guan, one week later, on June 9, 1999, police destroyed her store to punish her for having filed a complaint and threatened to arrest her if she did so again. Guan testified that on June 10, 1999, she closed her store, and that on June 14, 1999, she participated in a brief demonstration against the city government, at which she carried a sign protesting government corruption. Guan claimed that on June 16, 1999, she was told by her mother not to return home from her boyfriend's house (where she had gone to stay following her demonstration) because "there were police coming to arrest" her. To avoid being arrested and detained, Guan allegedly fled to a rural village before emigrating from China to the United States in September 1999.

The IJ's decision was based on her finding that Guan's testimony was not credible. The IJ "listened to [petitioner's] testimony. . . looked at the documentary evidence, and considered the [petitioner's] demeanor," and on this basis concluded that petitioner's testimony was "confusing and contradictory, vague and lacking in detail . . . [as well as] unconvincing." Tr. of Oral Decision of the Immigration Judge, at 4. To substantiate her conclusions, the IJ referred to Guan's denial of having told immigration officials at the airport in Los Angeles that she left China because she didn't want to get married and to Guan's confusing "testimony . . . as to the date that she actually did close the store." Id. The IJ also added, without elaborating, that she "found it very difficult to believe that the [petitioner] would go and demonstrate against the government with the sign." Id. at 4-5.

The BIA "agree[d] with the [IJ]'s ultimate conclusion that the [petitioner] did not meet her burden of demonstrating eligibility for [the requested] forms of relief," Order of the BIA, at 1, but elaborated upon the IJ's reasoning. As the basis for its agreement with the IJ's assessment that the petitioner's testimony was "confusing and contradictory, vague and lacking in detail," the BIA listed (1) the fact that petitioner "could not explain who came to collect fees and who took the clothes from her boutique; (2) petitioner's inconsistent testimony about the date on which she allegedly wrote a letter to the city government;² and (3) petitioner's contradictory testimony about the date on which she permanently closed her store.³ Id.

DISCUSSION

Where, as here, the BIA agrees with the IJ's conclusion that a petitioner is not credible and, without rejecting any of the IJ's grounds for decision, emphasizes particular aspects of that decision, we will review both the BIA's and IJ's opinions—or more precisely, we review the IJ's decision including the portions not explicitly discussed by the BIA. See Fiadjoe v. Att'y Gen., 411 F.3d 135, 152-53 (3d Cir.2005) (holding that where the BIA has relied in its opinion on an IJ's adverse credibility analysis, a Court of Appeals may review both opinions); Xin Jie Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004) (same); cf. Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir.2005) (noting that where the BIA declines to adopt portions of an IJ's reasoning but affirms the IJ's decision in every other respect, we review "the judgment of the IJ as modified by the BIA's decision—that is, minus the single argument for denying relief that was rejected by the BIA"); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) ("Where the BIA adopts the decision of the IJ and merely supplements the IJ's decision . . . we review the decision of the IJ as supplemented by the BIA.") (citing Niam v. Ashcroft, 354 F.3d 652, 655 (7th Cir.2004)).

We review an IJ's factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . . ") (emphasis added); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) ("[W]e will not disturb a factual finding if it is supported by `reasonable, substantial, and probative' evidence in the record when considered as a whole.") (internal quotation marks omitted).

We afford "`particular deference to the credibility determinations of the IJ.'" Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). Accordingly, our review does not permit us to engage in an independent evaluation of the cold record or ask ourselves whether, if we were sitting as fact finders, we would credit or discredit an applicant's testimony. See Zhou Yun Zhang, 386 F.3d at 74 ("[T]he [reviewing] court may not itself hypothesize excuses for . . . inconsistencies [in a petitioner's testimony], nor may it justify the contradictions or explain away the improbabilities. Its limited power of review will not permit it to `reverse the BIA simply because [it] disagree[s] with its evaluation of the facts.'") (internal quotation marks omitted, last alteration in original) (quoting Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003)). "Where the IJ's adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise." Id.

Of course, "the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review." Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). An adverse credibility determination must be based on "specific, cogent reasons" that "bear a legitimate nexus" to the finding. Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted) (quoting Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotations omitted)). Inconsistent testimony often bears a legitimate nexus to an adverse credibility finding, but it need not be fatal if it is minor and isolated, and the testimony is otherwise generally consistent, rational, and believable. See Diallo v. Immigration & Naturalization Service, 232 F.3d 279, 288 (2d Cir.2000).

At oral argument, counsel for the Government declined to rely on contradictory statements made by petitioner concerning the precise dates on which she allegedly sent a letter of protest to city government officials and closed her clothing store for fear of further retribution by local police. We therefore set aside petitioner's statements concerning the chronology of events and consider whether other more significantly inconsistent statements relied upon by the IJ and BIA provide sufficient support for their adverse credibility findings.

In an airport interview conducted immediately after petitioner's entry into the United States—which occurred less than three months after the events giving rise to her claim—petitioner was asked, under oath, "Why did you leave your home country or country of last residence?," to which she replied: "Because of the blind marriage. I refused and now they are trying to get me." Next, petitioner was asked "Do you have any fear or concern about being returned to your home country or being removed from the United States?," to which she replied, in a sworn statement: "Yes, [they] will put me in jail because I refused to marry." When asked "[w]hat [was] the purpose of [her] entry into the United States," petitioner stated that it was "to be with [her] father" who had applied to obtain legal resident status for petitioner. At the conclusion of her interview, petitioner was asked whether she "ha[d] any questions" or if there was "anything else [she] would like to add," to which she replied "No." In her airport interview, p...