Sun v. Holder
| Decision Date | 20 April 2015 |
| Docket Number | No. 14-9505,14-9505 |
| Parties | ZHE SUN, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(Petition for Review)
ORDER AND JUDGMENT*Before McHUGH, PORFILIO, and O'BRIEN, Circuit Judges.
Zhe Sun, a native and citizen of China, petitions for review of the denial of his application for asylum, restriction on removal, and relief under the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a) over those arguments Sun has administratively exhausted, we deny the petition.
In July 2007, Sun was arrested in China, along with his father and uncle, while attending an unregistered, Christian "house church." He was detained for three days, interrogated for thirty minutes about the church and its leader, slapped on the face, and kicked in the chest. He did not suffer any physical injuries. Upon his release, he was ordered to report to a village committee every two weeks, which he did three times. He was also made subject to random home surveillance and threatened with re-arrest, sentence, and imprisonment if he ever attended a house church again. His father paid a special penalty on Sun's behalf.
In September 2007, Sun entered the United States on a student visa and studied at various colleges until January 2011. Shortly thereafter, he applied for asylum, restriction on removal, and CAT relief. In a supporting statement, Sun referenced the 2007 incident and stated his father had been arrested again in January 2011 while holding a house church. At a hearing in August 2011, an immigration judge (IJ) required corroboration of the father's arrest for purposes of the REAL ID Act of 2005.1 The relevant portion of it addresses an applicant's testimony, which "may be sufficient to sustain the applicant's burden [to show he is a refugee] without corroboration," but "[w]here the trier of fact determines that the [asylum] applicantshould provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii).
At his individual hearing in December 2012, Sun testified about his 2007 arrest. He also produced a letter from his father dated November 2007. In it his father warned Sun not to return to China because the police had been inquiring when he would return and admit his crime, and they would probably arrest him if he returned. Sun also provided a receipt for the special penalty his father had paid on his behalf and an affidavit from his uncle, dated June 2011, stating Chinese police were still looking for Sun and would arrest him because he violated the terms of his release by leaving China.
Sun also testified about his father's 2011 arrest, which he learned of during one of their regular telephone conversations (every three or four days), but he provided little detail other than to say he thought his father lost his job as a result. According to that line of testimony the police told his father Sun needed to return to China and accused Sun of "illegal communication with foreign churches," R. at 166. When asked why he did not have any corroboration of his father's 2011 arrest, Sun responded only "why[] should I ask him to write a letter?" Id. at 149. But he added he could get a letter "[i]f it's necessary." Id. at 151. Sun added that his father and uncle continued to attend Christian house churches in China. He also claimed if he returned to China, he would be immediately arrested at the airport, and he would notbe able to move to another part of China to avoid problems with the government. He added he would not attend a registered Christian church because they are regulated by the Chinese government and are not free.
The IJ denied relief. She found serious problems with Sun's credibility and the lack of explanation for his failure to provide certain corroborating evidence, including a letter from his father regarding his father's 2011 arrest. The IJ was also concerned with his ignorance of the details of that arrest and questioned why his uncle did not mention it in his affidavit, which was dated some five months after that arrest.
The IJ also found irregularities with other documentary evidence Sun provided to corroborate his testimony. Sun initially testified his father's 2007 letter was sent in an envelope postmarked April 25, 2012, and addressed to a friend in Utah. He claimed his friend offered to receive the correspondence because Sun was in the process of moving from California to Utah. But when pressed, Sun admitted he had already moved to Utah by that date, a receipt for the special penalty his father had paid had actually come in that envelope, and he did not have the envelope his father's letter came in. He also did not have the envelope his uncle's affidavit came in. The IJ asked Sun why he had waited until his individual hearing in 2012 to submit his father's 2007 letter rather than include it with his asylum application. Sun claimed he had only found the letter after he moved from California to Utah in 2011. The IJ also expressed concern about Sun's ability to exit China through the Beijing airport without getting arrested if, in fact, he was under a reporting requirement, but Sun explained the Chinese government did not becomeconcerned about him until they found out he left China; before that, he was only reporting to the village committee.2
As a result, the IJ appeared to find Sun not credible, stating, in connection with her denial of restriction on removal: "[T]he irregularities with respect to the respondent's documentary evidence and the lack of specificity in his testimony have led me to make a negative credibility finding." Id. at 90.
Significantly, the IJ concluded Sun's arrest, brief detention, and mistreatment by the police in 2007 was not sufficiently severe to rise to the level of persecution. As to future persecution, the IJ found his testimony regarding alleged continued police interest in him to be vague, lacking in detail, and insufficiently corroborated. She also pointed to Sun's testimony about his father and uncle continuing to attend house churches even though they are occasionally harassed. She also looked to the 2007 U.S. Department of State (DOS) country report, which indicated a certain tolerance for Christian house churches if they were kept small and unobtrusive, and a DOS religious-freedom report from 2011, which showed continued religious tolerance (there were 200 Christian Bookstores and nine Christian publishers in China). Finally, the IJ determined Sun had not shown the threat of persecution exists nationwide. Accordingly, the IJ denied Sun's asylum application.
For similar reasons, the IJ denied Sun's request for restriction on removal. She denied CAT relief because Sun had failed to show he was more likely than not to be tortured if he returned to China.
The Board of Immigration Appeals (BIA) concluded the IJ did not make an explicit credibility finding and therefore considered Sun fully credible under 8 U.S.C. § 1229a(c)(4)(C).3 Nevertheless, it agreed with the IJ, in general terms, concluding that Sun failed to provide sufficient corroborating evidence to meet his burden of proof on his claims for asylum and restriction on removal. Moreover, it decided Sun's arrest did not rise to the level of persecution. It also affirmed the IJ's decision with respect to future persecution. As did the IJ, it relied on the country report, the religious-freedom report, and insufficient corroboration of Sun's testimony; it specifically noted Sun's failure to corroborate his father's 2011 arrest. It also denied restriction on removal and CAT relief.
A single BIA member entered a brief order under 8 C.F.R. § 1003.1(e)(5) affirming the IJ's decision. We therefore review the BIA's decision as the final order of removal. Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). Consequently, "we will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance." Id. But we "may consult the IJ's opinion to the extent that the BIA relied upon or incorporated it." Sarr v. Gonzales, 474 F.3d783, 790 (10th Cir. 2007). And "when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds." Uanreroro, 443 F.3d at 1204.
We review any questions of law de novo, and determine whether substantial evidence supports the agency's findings of fact. Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011). "[W]hether an alien has demonstrated persecution is a question of fact." Id. "Our duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole." Uanreroro, 443 F.3d at 1204 (alteration and internal quotation marks omitted). "Agency findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary." Sarr, 474 F.3d at 788-89 (internal quotation marks omitted); see 8 U.S.C. § 1252(b)(4)(B). Hence, we do not reweigh evidence. Sidabutar v. Gonzales, 503 F.3d 1116, 1125 (10th Cir. 2007).
Before turning to Sun's asylum claim, we note his challenge to the IJ's adverse credibility finding. But he overlooks the BIA's decision, which "deemed" his testimony "credible" and gave it "full weight" because, in its view, the IJ did not make an explicit credibility finding. R. at 2-3. Because we are limited to the grounds stated by the BIA, see Uanreroro, 443 F.3d at 1204, Sun's arguments about the IJ's statements regarding Sun's credibility are irrelevant.
"To be eligible for asylum, an applicant must be a 'refugee' within the meaning of . . . 8 U.S.C. § 1101(a)(42)." Pang v. Holder, 665 F.3d 1226, 1230 (10th Cir. 2012). A "refugee" is a person "unable or...
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