In re J-Y-C-

• Decision Date: 09 August 2007
• Docket Number: Interim Decision No. 3576.
• Citation: 24 I&N Dec. 260
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: In re J-Y-C-, Respondent.

24 I&N Dec. 260

In re J-Y-C-, Respondent.

Interim Decision No. 3576.

Board of Immigration Appeals.

Decided August 9, 2007.

(1) Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303 (to be codified at section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii)), a trier of fact may, considering the totality of the circumstances, base a credibility finding on an asylum applicant's demeanor, the plausibility of his account, and inconsistencies in statements, without regard to whether they go to the heart of the asylum claim.

(2) The Immigration Judge properly considered the totality of the circumstances in finding that the respondent lacked credibility based on his demeanor, his implausible testimony, the lack of corroborating evidence, and his inconsistent statements, some of which did not relate to the heart of his claim.

FOR RESPONDENT: Ron Behling, Esquire, Alhambra, California.

BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and GRANT, Board Members.

HURWITZ, Acting Vice Chairman:

In a decision dated September 15, 2006, an Immigration Judge denied the respondent's applications for asylum and withholding of removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3) (2000), and his request for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). The respondent has appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the People's Republic of China who attempted to enter the United States at Chicago O'Hare International Airport on or about August 4, 2005. After his attempted entry, the respondent was interviewed at the airport by officers of the Department of Homeland Security ("DHS"). He was subsequently placed into removal proceedings and filed his applications for relief on September 12, 2006.

The respondent's claim relates to his alleged persecution in China on account of his Christian faith.¹ In particular, the respondent asserted that on January 1, 2005, after visiting a home church for the first time, he was arrested and detained for 48 hours.² According to the respondent, during the detention he was slapped and mistreated and was asked about the leader of the home church. After his release, he was allegedly dismissed from his job. The respondent also claimed to have hosted two home church meetings after his arrest, one on April 10, 2005, and the other on May 25, 2005. He stated that his sisters were also present at the first meeting and that the police arrived at the second meeting, but that he escaped arrest.

The respondent claimed that he went into hiding after the May 25, 2005, incident, and he then secured the services of a smuggler who helped him leave China. According to the respondent's testimony, he left China on his own passport and arrived in Japan. At that time, he discarded his passport on the advice of the smuggler and used another passport to travel from Japan to the United States. He stated that he destroyed that passport on the flight.

The Immigration Judge denied the respondent's claim, finding that he lacked credibility and therefore failed to meet his burden of proving eligibility for the requested relief. The Immigration Judge based his adverse credibility determination on inconsistencies between the testimony of the respondent and his sister, on inconsistent statements made by the respondent in the airport interview, on the respondent's demeanor, and on inherent implausibilities with regard to the claim. In addition, the Immigration Judge noted that the respondent failed to produce corroborative documentary or testimonial evidence that was reasonably available to him.

II. ANALYSIS

A. REAL ID Act Amendments

The respondent filed his applications for relief on September 12, 2006. His asylum claim is therefore governed by the amendments to the Immigration and Nationality Act brought about by the passage of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302 ("REAL ID Act"), which was signed into law on May 11, 2005. See REAL ID ACT § 101(h)(2), 119 Stat. at 305 (stating that the amendments are applicable to asylum applications filed on or after the date of enactment). The REAL ID Act amended the Act to provide, in pertinent part, as follows:

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.

REAL ID Act § 101(a)(3), 119 Stat. at 303 (to be codified at section 208(b)(1)(B)(iii) of the Act, 8 U.S.C. § 1158(b)(1)(B)(iii)) (emphasis added).

The above factors listed in the amended Act, on which a trier of fact may base a credibility determination, were chosen because they were "identified in case law" and therefore would help establish a "uniform standard for credibility." H.R. Rep. 109-72, at 166-67 (2005) (Conf. Rep.). The credibility standard, as amended, is intended to allow Immigration Judges to follow a "commonsense" approach while "tak[ing] into consideration the individual circumstances of the specific witness and/or applicant." Id. at 167. The amendment also clarifies that "if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal." REAL ID Act § 101(a)(3) (to be codified at section 208(b)(1)(B)(iii) of the Act).³

The REAL ID Act also amended the Act with regard to corroborative evidence. See REAL ID Act § 101(a)(3) (to be codified at section 208(b)(1)(B)(ii) of the Act). The statute now provides that an applicant's testimony may be sufficient to sustain his burden of proof without corroboration if it is demonstrably credible, persuasive, and probative of facts sufficient to demonstrate that the applicant is a refugee. Id. However, if the trier of fact determines that corroborative evidence should be produced, it "must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." Id.

In adding the provisions regarding corroboration, Congress intended to "[c]odify[] the BIA's corroboration standards." H.R. Rep. 109-72, at 165-66 (citing Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997)). The amendments to the Act continue to allow an alien to establish eligibility for asylum through credible testimony alone, but they also make clear that where a trier of fact requires corroboration, the applicant bears the burden to provide corroborative evidence, or a compelling explanation for its absence. Id. Therefore, under the Act as amended by the REAL ID Act, "an asylum applicant should provide documentary support for material facts which are central to his or her claim and easily subject to verification . . . . The absence of such corroborating evidence can lead to a finding that an applicant has failed to meet [his] burden of proof." Matter of S-M-J-, supra, at 725-26.

B. Credibility and Corroboration

We must defer to the Immigration Judge's factual findings, including findings as to the credibility of testimony, unless they are clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i) (2007); see also Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). For the following reasons, we conclude that the Immigration Judge's findings of fact as to the respondent are not clearly erroneous under the standards set forth in the REAL ID Act. See United States v. National Ass'n of Real Estate Bds., 339 U.S. 485, 495 (1950) (stating that a factual finding is not "clearly erroneous" merely because there are two permissible views of the evidence).

The Immigration Judge observed that the respondent's testimony conflicted with that of his sister. Significantly, the respondent testified that he was arrested for the first time on January 1, 2005, mistreated, questioned, and held for 2 days. He further stated that after being released from jail 2 days later, he went home and saw his sister. His sister testified that she saw the respondent on January 1, 2005, and was told by their father that the respondent had been released several days earlier after being detained for about 20 hours.

These two stories cannot be reconciled. As the Immigration Judge noted, if the respondent indeed saw his sister on his release, then, according to her testimony, he could not have been arrested when he said he was. Furthermore the two stories are in conflict as to the length of the detention. The respondent's sister stated that he was held for 1 day, but the respondent claimed that he was held for twice that long.⁴ Upon being confronted with the discrepancies, the respondent stated that his sister was mistaken about the date, and that he had not gone directly home the day of his release, as he had previously testified, but rather went to his "godsister's" home, and then to his own. This explanation is plainly at odds with the earlier testimony. Furthermore, noting the respondent's ...