Thile v. Garland

• Decision Date: 19 March 2021
• Docket Number: No. 20-1259,20-1259
• Citation: 991 F.3d 328
• Parties: Dorjee THILE, Petitioner, v. Merrick B. GARLAND, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

991 F.3d 328

Dorjee THILE, Petitioner,

v.Merrick B. GARLAND,^* U.S. Attorney General, Respondent.

No. 20-1259

United States Court of Appeals, First Circuit.

March 19, 2021

Gary J. Yerman and The Yerman Group, LLC, New York, NY, on brief for petitioner.

Robbin K. Blaya, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Ethan P. Davis, Acting Assistant Attorney General, Civil Division, and John S. Hogan, Assistant Director, Office of Immigration Litigation, Civil Division, on brief for respondent.

Before Lynch and Selya, Circuit Judges, and Katzmann,^** Judge.

KATZMANN, Judge.

Dorjee Thile seeks relief from removal on the grounds of asylum, withholding of removal under the Immigration and Nationality Act (INA), and protection under the United Nations Convention Against Torture (CAT). He contends that the Board of Immigration Appeals (BIA) erred in affirming an Immigration Judge's (IJ) decision to deny his applications. He bases his petition for relief on a claim that the BIA erroneously disregarded his testimony and other evidence of his Chinese citizenship. We deny Thile's petition for review.

I. DETERMINATION UNDER REVIEW

Thile arrived in the United States on February 9, 2010, in Los Angeles, California. He was admitted to the United States on an Indian passport with a temporary visitor visa obtained at the United States embassy in Brisbane, Australia. On July 1, 2010, Thile applied for asylum, withholding of removal, and protection under CAT. Thile completed an asylum interview on August 10, 2010. The Department of Homeland Security thereafter issued Thile a Notice to Appear, which alleged that he was a native and citizen of India and charged him with removability for remaining in the United States longer than his visa permitted. Thile admitted the factual allegations and conceded the charge of removability but denied that he was an Indian citizen. Rather, he claimed that he was of Tibetan nationality with Chinese citizenship.

Thile's petition for review is based on the following testimony by Thile and supporting information in his asylum application: Thile stated that he was born and grew up in Kham, Tibet. He was a farmer in Tibet and married his wife in 1992, with whom he has three children. Because Thile was raised by an uncle after his father passed away when Thile was a child, he claimed he did not possess his birth certificate. Thile is a Buddhist and claims that he was unable to freely practice his religion because of the Chinese occupation of Tibet. Further, he reported that his family faced discrimination based on their opposition to the Chinese government's occupation of Tibet. He testified that in August of 2002 he distributed flyers with his friend that mentioned the Dalai Lama and freedom for Tibet. Thile claims his friend was then arrested in connection with the flyer distribution, and Thile decided to flee Tibet fearing arrest, torture, and/or being killed by police. He first fled to Nepal, and then further traveled to Darjeeling, India where his aunt lived. He claims that he discarded his Chinese identity card before entering India in order to avoid being deported.

Thile testified that he resided in India for more than six years, from October 2002 to May 2009. He claims that he was arrested in India on March 10, 2009, during a protest connected to events in Tibet. He further claims he was detained for two days, during which he was physically mistreated and threatened with deportation. Thile then decided to leave India but claims that he did not possess a Chinese passport because the Chinese government did not issue passports to Tibetans, and that he was unable to obtain a passport from either Nepal or India. He explained that he obtained a fraudulent Indian passport from a broker so that he could travel to Australia. Thile remained in Australia for nine months, during which time he obtained a visa from the United States embassy using the same fake Indian passport and based on documents indicating that he was an Indian citizen. He then traveled to the United States, after which he claims that he returned the Indian passport to the broker in India as arranged. Thile moved to New York and then to Boston in 2013, where he continues to participate in activities with the Tibetan community.

Based on this testimony and Thile's evidence, including a photocopy of his Chinese household register, a photocopy of his marriage certificate, a photocopy of his children's birth certificates, a letter from the Office of Tibet in New York certifying Thile as a Tibetan refugee, and evidence of country conditions of Tibetans in China, on November 4, 2015, the IJ granted Thile a continuance to obtain the original household register or other original documents regarding his Chinese citizenship so that he could meet his burden of proving his Chinese citizenship. More than two years later, at his next hearing on March 29, 2018, Thile newly provided only a Tibetan Green Book, a document issued in India indicating he was a Tibetan national, but no evidence that he was a Chinese citizen. The IJ explained that "the respondent [has not] produced any documentation to show that he made any efforts to get these documents .... He simply has not addressed this topic in terms of his submission to date."

Based upon the record and Thile's testimony, the IJ determined that Thile had not proven that he is a Chinese citizen without Indian citizenship, but rather that the record evidence "tends to show that the respondent is a citizen of India and the documents in the record do not support a finding that in India the respondent has suffered either past persecution or has a well-founded fear of future persecution." Further, the IJ determined that because he had not established past persecution or a well-founded fear of persecution in India, Thile did not meet the higher burdens for withholding of removal or protection under CAT.

Thile appealed the IJ's ruling to the BIA, which affirmed on all grounds. Specifically, the BIA concluded that the IJ "correctly found that the respondent submitted insufficient evidence to establish his Chinese citizenship in light of other record evidence showing that he is a citizen of India," and that the IJ did not err in determining that Thile did "not establish[ ] past persecution or a well-founded fear of persecution" in India, He now petitions for review of the BIA's decision.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252 over this timely appeal from a decision of the BIA following proceedings in Boston, Massachusetts. "Judicial review of immigration cases normally focuses on the final order of the BIA. But where, as here, the BIA accepts the IJ's findings and reasoning yet adds its own gloss, we review the two decisions as a unit." Moreno v. Holder, 749 F.3d 40, 43 (1st Cir. 2014) (quoting Xian Tong Dong v. Holder, 696 F.3d 121, 123 (1st Cir. 2012) ). We consider questions of law de novo. Ye v. Lynch, 845 F.3d 38, 42 (1st Cir. 2017). We consider factual findings "under the deferential ‘substantial evidence’ standard, reversing only if a ‘reasonable adjudicator would be compelled to conclude to the contrary.’ " Castillo-Diaz v. Holder, 562 F.3d 23, 26 (1st Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B) ) (other citations omitted).

III. DISCUSSION

Thile applied for asylum and withholding of removal under the INA and the CAT. Each applicant bears the burden of proving that he or she meets the criteria for asylum and withholding of removal. See 8 U.S.C. § 1158(b)(1)(B)(i) (stating that applicant bears burden of proving qualification for asylum); 8 U.S.C. § 1231(b)(3)(C) (stating that alien bears burden of proving withholding of removal); 8 C.F.R. § 1208.16(c)(2) (stating that applicant bears the burden of proving eligibility for withholding of removal under the CAT). Our caselaw dictates that this burden can be met by specific, credible testimony or by "easily obtainable corroborating documentation" where "testimony is not itself compelling." Chhay v. Mukasey, 540 F.3d 1, 6 (1st Cir. 2008) (first citing Sela v. Mukasey, 520 F.3d 44, 46 (1st Cir. 2008) ; then citing Eke v. Mukasey, 512 F.3d 372, 381 (7th Cir. 2008) ; then citing Pan v. Gonzales, 489 F.3d 80, 83 (1st Cir. 2007) ; then citing Hayek v. Gonzales, 445 F.3d 501, 508 (1st Cir. 2006) ; and then citing REAL ID Act § 101(a)(3)). Even where the petitioner is otherwise credible, we will uphold a decision of the BIA where there are explicit findings that corroboration was reasonable and the failure to provide corroboration was not adequately explained. Id.; cf. Soeung v. Holder, 677 F.3d 484, 488–89 (1st Cir. 2012) (vacating dismissal of petition where BIA made "no finding at all on the adequacy of Soeung's explanation for failing to provide the required corroboration"). "Although the threshold of eligibility for withholding of removal is similar to the threshold for asylum, withholding requires a higher standard." Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009) (citation omitted).

Thile alleges various errors on the part of the BIA in affirming the IJ's decision. First, he contends that the BIA erred in affirming the IJ's determination that he did not meet his burden of proving himself a citizen of China and for not presuming or addressing the credibility of his testimony. Second, Thile argues that he is eligible for asylum based on a well-founded fear of persecution in both China and India. We address each of these contentions in turn.

A. CITIZENSHIP AND CREDIBILITY

Thile first contends that the BIA's affirmance of the IJ's finding that he failed to produce sufficient evidence to establish Chinese citizenship rather than Indian citizenship was flawed because Thile "should be found to have established his Chinese citizenship through his credible testimony and corroborating evidence." Further, Thile claims that the BIA erred in not presuming him credible or further...