Ye Xian Jing v. Lynch

• Decision Date: 04 January 2017
• Docket Number: No. 16-1290,16-1290
• Citation: 845 F.3d 38
• Parties: YE Xian Jing, a/k/a Xian Jing Ye, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

845 F.3d 38

YE Xian Jing, a/k/a Xian Jing Ye, Petitioner,

v.Loretta E. LYNCH, Attorney General of the United States, Respondent.

No. 16-1290

United States Court of Appeals, First Circuit.

January 4, 2017

Gerald Karikari and Karikari & Associates, P.C. , New York, NY, 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.

Before Lynch and Selya, Circuit Judges, and Burroughs^* , District Judge.

BURROUGHS, District Judge.

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") denialof 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 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 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 States testified, and he submitted a 2012 State Department report on religious freedom in China. 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 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 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 determinations, under the 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 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

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