Jiang v. Gonzales, 06-1649.

• Citation: 474 F.3d 25
• Decision Date: 23 January 2007
• Docket Number: No. 06-1649.,06-1649.
• Parties: Xue Deng JIANG, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 25

474 F.3d 25

Xue Deng JIANG, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 06-1649.

United States Court of Appeals, First Circuit.

Submitted January 16, 2007.

Decided January 23, 2007.

Gary J. Yerman on brief for petitioner.

Peter Keisler, Assistant Attorney General, Civil Division, Greg D. Mack, Senior Litigation Counsel, and Robbin K. Blaya, Attorney, Office of Immigration Litigation, on brief for respondent.

Before TORRUELLA, SELYA, and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Xue Deng Jiang, seeks judicial review of a decision of the Board of Immigration Appeals (BIA), which affirmed an order denying his application for asylum, withholding of removal, or relief under the Convention Against Torture (CAT). The petitioner claims that an adverse credibility determination is not supported by substantial evidence in the record and that the BIA erred in holding that he was not entitled to relief. Concluding, as we do, that the BIA's decision is sustainable without regard to the disputed credibility determination, we deny the petition for review.

The facts are relatively uncomplicated. The petitioner, a 25-year-old native and citizen of the People's Republic of China, arrived in the United States on November 4, 2003, without valid entry documentation. The authorities immediately detained him. Because he claimed to have been a victim of religious persecution in China, an immigration officer conducted an interview to assess his eligibility for asylum.

The petitioner told the interviewer that he had lived in Yutou Village with his parents who, like the petitioner, are practicing Catholics. He explained, albeit without specifying a date, that he had attended a gathering of Catholic youths; that the local police had interrupted the gathering and attempted to arrest a Catholic priest who was in attendance; and that the petitioner helped the priest escape.

Fearing the consequences, the petitioner left the village and traveled approximately an hour to his aunt's residence in Fuzhou City. When he arrived, he heard that the police had visited his parents' abode in an effort to locate him. The petitioner never returned home and eventually made his way to the United States.

The petitioner told the immigration officer of his fear that, should he return to China, the police would arrest him, beat him, and make him reveal the priest's hiding place. He said that the police had told his mother (falsely) that he had assaulted a police officer, and that they threatened to shoot him if they were able to run him to ground.

The interviewer referred the petitioner to the Immigration Court, and he entered removal proceedings on November 12, 2003. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). He conceded removability and cross-petitioned for asylum, withholding of removal, or protection under the CAT.

On his asylum application, filed May 11, 2004, the petitioner again described the events leading up to his departure from China. He added that these events occurred in July of 2001, and that the police had disrupted the gathering because it was an outgrowth of an "illegal church." He made no mention of any threat to shoot him but instead claimed that the police told his mother that if he did not "hand over the priest," he would be imprisoned.

An immigration judge (IJ) convened a hearing on May 12, 2005. During the hearing, the petitioner largely recapitulated the substance of his original asylum interview. He also claimed, for the first time, that the police arrested and interrogated his parents in an endeavor to learn his whereabouts. When asked why he had not mentioned his parents' arrest at any earlier time, he explained that he had not given "a lot of detailed information" in either the asylum interview or the asylum application.

On cross-examination, the petitioner reiterated that the police had threatened to shoot him if he did not betray the priest. When asked why he had omitted any mention of this threat from his asylum application, he explained that he had not learned about it until August of 2004. The cross-examiner quickly defenestrated this explanation, pointing out that the petitioner had first alluded to the threat of shooting in November of 2003. The petitioner thereupon reversed his field and admitted that he knew of the threat earlier; he asserted, however, that he was unsure whether the threat actually had been made until an August 2004 conversation with his parents.

In addition to his own testimony, the petitioner presented an affidavit signed by his father and a declaration signed by his parish priest in China.¹ These documents corroborated bits and pieces of the petitioner's story, particularly his status as a practicing Catholic and the happenings leading up to his abrupt departure from Yutou Village. However, neither document clarified the inconsistencies in the petitioner's account, such as whether the police had threatened his life or whether they had arrested his parents.

The proffer proved to be an exercise in futility. The IJ excluded the two documents on the ground that neither was properly authenticated in accordance with 8 C.F.R. § 287.6(b).

After hearing the evidence, the IJ noted that the petitioner had embellished his trial testimony by adding important information that was inexplicably omitted from his earlier statements. The IJ also noted the absence of any corroboration that any of this had ever happened. He proceeded to find the petitioner's testimony incredible. Having made this adverse credibility determination, the IJ concluded that the petitioner had failed to carry his burden of establishing a well-founded fear of persecution and, thus, had failed to show an entitlement to the requested relief.

On appeal, the BIA affirmed the IJ's ukase. It did not mention the IJ's exclusion of the affidavit and the declaration. Rather, in apparent disregard of that ruling, the BIA scrutinized the affidavit of the petitioner's father and concluded that it offered no corroboration of either the parents' alleged arrest or the supposed threat that the petitioner would be shot. Emphasizing these shortcomings, the BIA upheld the IJ's adverse credibility determination and, thus, the IJ's rejection of the petitioner's application for relief. The BIA held, in the alternative, that even if the petitioner's testimony was deemed credible, he had not made out a case for asylum or other redress. That decision precipitated the filing of this timely petition for judicial review.

The petitioner's argument is two-tiered: he maintains that the adverse credibility determination is not supported by substantial evidence and that, once his testimony is deemed credible, the record compels a finding of a well-founded fear of persecution (and, therefore, an entitlement to relief). We address the two halves of this argument separately.

We begin with the adverse credibility determination. This court reviews findings of fact in immigration proceedings, including findings with respect to credibility, to determine whether those findings are supported by substantial evidence in the record. Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir.2005). Under that standard, an adverse credibility determination may stand if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1252(b)(7)(B)(i); see Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.1999).

Here, the petitioner argues that there is insufficient grounding for an adverse credibility determination. The record, however, reveals three separate articulated justifications for that determination. Taken as a whole, they comprise the platform on which the BIA's determination rests.²

First, the BIA observed that the petitioner's claim concerning his parents' arrest was of recent vintage and appeared to have been manufactured. That claim was not made either in the petitioner's asylum interview or his asylum application but surfaced only during his trial testimony.³ The petitioner's counter is not convincing; he glosses over the interview, says that there was limited space available on the asylum application, and argues that the BIA should have excused this discrepancy on that basis.

This argument trenches on the frivolous. For one thing, the petitioner attached a two-page letter to his asylum application, thus exhibiting that he knew how to create space to include additional information. For another thing, even if the BIA could have reasoned as the petitioner advocates, it was not compelled to do so. See Tai v. Gonzales, 423 F.3d 1, 5 (1st Cir.2005). Where there are two plausible but conflicting views of the evidence, the BIA's choice between them cannot be found to be unsupported by substantial evidence.

The second pillar that the BIA used to undergird the adverse credibility determination relates to the petitioner's testimony that the police threatened to shoot him if he did not surrender the priest. The BIA stressed that the petitioner had neglected to mention this threat on his asylum application. The petitioner initially attempted to explain the omission by claiming that he did not learn of this incident until August of 2004. When adroit cross-examination cut the ground from under that canard, he then switched gears and averred that he was unsure of the accuracy of what he had heard until August of 2004. Obviously, the BIA was under no obligation to credit a self-serving and wholly uncorroborated explanation that followed hard on the heels of an earlier lie.

In a related vein, the petitioner suggests that these and other inconsistencies identified by the BIA are trifling. He reminds us that an adverse credibility determination "cannot rest on trivia but must be based on discrepancies that involved the heart of the asylum claim." Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.1999) (citation and internal quotation marks omitted). The problem here is that the...