Pan v. Gonzales

• Decision Date: 07 June 2007
• Docket Number: No. 06-2166.,06-2166.
• Citation: 489 F.3d 80
• Parties: Jian PAN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

489 F.3d 80

Jian PAN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 06-2166.

United States Court of Appeals, First Circuit.

Submitted May 9, 2007.

Decided June 7, 2007.

Sara Sailan Yang and Yang & Sacchetti on brief for petitioner.

Peter D. Kessler, Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Genevieve Holm, Attorney, Office of Immigration Litigation, on brief for respondent.

Before TORRUELLA, Circuit Judge, SELYA and CYR, Senior Circuit Judges.

SELYA, Senior Circuit Judge.

Claiming to be a religious refugee from his native China, the petitioner, Jian Pan, sought asylum, withholding of removal, or protection under the Convention Against Torture (CAT). An Immigration Judge (IJ), finding that the petitioner's religious persecution claim lacked both credibility and substance, ordered his removal. The Board of Immigration Appeals (BIA) summarily affirmed this case. The petitioner now seeks judicial review. We deny the petition.

When and how the petitioner arrived in the United States are hotly contested issues. It is clear, however, that he was here on May 28, 2002, when he initially applied for asylum. He alleged the following facts.

On July 20, 2001, four policemen forcibly entered a private residence in Changle China, where the petitioner, his father, and other persons were participating in a peaceful Christian "home church" gathering. The officers questioned the petitioner with respect to his membership in the home church and its connection to a "Taiwan anti[-]government group." Fourteen people, including the petitioner and his father, were detained at the local police station. There, the police interrogated the petitioner; angered by his responses one officer slapped his face, kicked him from his stool, and beat him with a baton. On the third of his eleven days in detention, the police handcuffed him to a pole behind the station house and forced him to stand overnight in the rain. His mother eventually posted bail to secure his release.

The petitioner claims to have fled from China on August 26, 2001, with the assistance of a snakehead (a professional smuggler). He says that he left in the nick of time; shortly after his departure, Chinese authorities consigned both his father and the host of the home church to a labor camp. According to his account, he arrived in the United States on August 28, 2001, and entered illegally.

The next material development occurred nine months later, when the petitioner self-reported to immigration authorities and sought asylum. On August 1, 2002, the former Immigration and Naturalization Service conducted an asylum interview. The interviewer (whom we shall refer to as the asylum officer) found that the petitioner was not credible, that both his chronology of events and his account of what had transpired were flawed, and that he had failed to show that his application for asylum was filed within one year of his arrival in the United States (as required by law). The asylum officer then referred the matter to the Immigration Court for the institution of removal proceedings.

The petitioner, who had traveled to the United States on a fraudulent passport, conceded removability. At the same time, he cross-applied for asylum, withholding of removal, or relief under the CAT. Following a series of evidentiary hearings, the IJ concluded that the petitioner had failed to carry the devoir of persuasion on any of his three claims for relief. The IJ's conclusion flowed in large measure from an adverse credibility determination. In that regard, the IJ zeroed in on a number of discrepancies in the petitioner's tale.

First, she noted that the petitioner had given conflicting accounts anent a taxi receipt introduced in the hope of showing his presence in China on August 26, 2001 (a date within the one-year eligibility period). Specifically, the petitioner testified before the IJ that he had carried the receipt out of China himself, whereas he had told the asylum officer that his mother had mailed the receipt to him from China some time after his arrival in the United States.

Second, the IJ found that the petitioner's testimony regarding the manner of his entry into and travel about the United States was wildly inconsistent. Before the IJ, the petitioner testified that he flew from Shanghai to Vancouver to Toronto; from there, he took a boat to the New York border. When asked for particulars, he replied that he had traveled by speedboat for five or ten minutes and then by car for approximately six hours to reach New York City's Chinatown district. In his asylum interview, however, the petitioner recounted that he had traveled six hours by boat from Toronto to an island in the middle of a lake and, from there, had traveled six more hours by boat to New York City.

Third, the IJ faulted the petitioner's testimony regarding the medium of travel on the next leg of his sojourn. The petitioner testified before the IJ that he had been driven in a small passenger car by a friend of his snakehead from New York to Los Angeles. This was at odds with what he had told the asylum officer: that he had traveled by truck between those two points.

Fourth, the IJ found that the petitioner's testimony as to how he had come into possession of various documents lacked coherence (and, thus, lacked reliability). The IJ specifically mentioned the petitioner's bank book, his outpatient medical records, and a police summons. The petitioner explained before the IJ that a mysterious individual named "May" — a California resident whose gender is obscure and whom the petitioner could not identify further — had gone to China and brought back the bank book, medical records, and summons at his request. He had told the asylum officer, however, that his mother had mailed those documents to him.

Finally, the IJ found inherently inconsistent the petitioner's accounts of his alleged arrest in China. Relatedly, she noted that the petitioner had failed to offer any corroboration of the claim that he had been arrested.¹ Although careful to note that corroborative evidence is not essential to the successful prosecution of an application for asylum, the IJ found this lack of corroboration particularly detrimental to the petitioner's credibility and claim.

Having made an adverse credibility determination, the IJ proceeded to find that the petitioner had not established that his application for asylum was timely. She rejected the asylum claim on that basis. As alternative grounds for her decision, the IJ found that, even assuming the truth of the petitioner's testimony, (i) there was insufficient evidence demonstrating that any persecution on account of a protected ground had occurred and (ii) that the petitioner had failed to show that he had an objectively reasonable fear of future persecution should he be returned to China. In reaching these conclusions, the IJ relied heavily on the State Department's Country Report on Human Rights Practices in China for 2003 (the 2003 Country Report). Pertinently, the IJ noted that, while the petitioner had stated that he did not want to register as a Christian with the Chinese government because of likely repercussions, the 2003 Country Report indicated that Christians returning to China should not be adversely affected by their religious preference.²

Consistent with these determinations, the IJ ordered removal and denied the petitioner's cross-application for asylum, withholding of removal, or relief under the CAT. The BIA summarily affirmed. This timely petition for judicial review followed.

Where, as here, the BIA has summarily affirmed an IJ's decision, we review the IJ's decision "as if it were the decision of the BIA." Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir.2005). In this instance, the IJ found that the petitioner had not made an adequate showing of timeliness and, thus, was not eligible for asylum. The petitioner seeks to revisit that determination here.

This effort is unavailing. To qualify for asylum, an alien ordinarily must "demonstrate[] by clear and convincing evidence" that his asylum application was filed within one year of his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).³ In this case, the petitioner first filed for asylum on May 28, 2002. Thus, he had to prove by clear and convincing evidence that he had first arrived in the United States no earlier than May 29, 2001. The IJ held that the petitioner had failed in this endeavor.

We are bound by that holding. Congress carefully circumscribed the scope of judicial review with respect to timeliness determinations in asylum cases. The relevant statute provides that "[n]o court shall have jurisdiction to review any determination of the Attorney General" concerning, inter alia, whether an asylum applicant has complied with the one-year filing deadline. Id. § 1158(a)(3).

This jurisdiction-stripping provision applies foursquare in the case at hand. Citing a dearth of credible evidence, the IJ found that it was at best "unclear" whether the petitioner had filed a timely asylum application. This was merely another way of saying that the petitioner had not clearly and convincingly demonstrated timeliness. Because the IJ found as a matter of fact that the petitioner had failed to prove timeliness and the BIA upheld that finding, we lack jurisdiction to review the petitioner's eligibility for asylum. See id.; see also Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005); Njenga v. Ashcroft, 386 F.3d 335, 339 (1st Cir.2004).

The petitioner strives to avoid this jurisdictional bar by relying on another statute, which provides that "[n]othing in ... this chapter ... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." 8...