Daoi Kai He v. Lynch

638 F. App'x 717
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 12, 2016
Docket15-9557
StatusUnpublished

This text of 638 F. App'x 717 (Daoi Kai He v. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daoi Kai He v. Lynch, 638 F. App'x 717 (10th Cir. 2016).

Opinion

ORDER AND JUDGMENT **

TIMOTHY M. TYMKOVICH, Chief Judge.

Dao Kai He is a native and citizen of the People’s Republic of China who petitions *718 for review of a Board of Immigration Appeals decision affirming the immigration judge’s denial of asylum and withholding of removal. 1 We deny the petition for review.

Mr. He entered the United States in 2006 without being admitted or paroled. The Department of Homeland Security issued him a Notice to Appear before an IJ to answer the charge that he was removable, pursuant to 8 U-S.C. § 1182(a)(6)(A)(I). On May 6, 2012, in front of an IJ, Mr. He conceded his remov-ability based on section 237(a)(1)(B) of the Immigration Nationality Act as an alien present without being admitted or paroled.

On September 24, 2013, Mr. He applied for asylum, withholding of removal, and Convention Against Torture protection. At the hearing, Mr. He testified that he had been a member of the Catholic Church since he was a child. He stated that he had gone to a church until 2005, when the Chinese government dissolved the church because it determined that it had become too popular. After the formal dissolution, Mr. He continued to attend secret meetings at members’ homes. Mr. He claimed that he had been arrested, detained for fifteen days, interrogated, and beaten by Chinese authorities for attending illegal religious meetings.

To corroborate his testimony, Mr. He submitted several letters. Among them was a letter from his father stating that Mr. He had been arrested along with other church members and detained for ten days. A nun from the St. Thomas Aquinas Church in Monterey Park, California, wrote letters confirming that Mr. He had attended mass there since 2007. Mr. He testified, however, that he had been living in Utah since 2009.

The IJ questioned petitioner about the inconsistencies in his application. First, the IJ asked why the letter written by Mr. He’s father stated that Mr. He had been detained for ten days, while Mr. He testified he had been detained for fifteen. Mr. He gave two answers: that he had told his father he had been detained for “ten-something days,” and that his father was “getting old” so his memory was “not so good.” AR 186. The IJ next asked Mr. He to explain why the nun claimed he had attended church in Southern California since 2007 when Mr. He had testified he had been living in Utah since 2009. The IJ asked Mr. He three times to explain how he had continued to attend that church after he moved away. Each time, Mr. He provided a different answer.

The IJ denied Mr. He’s application in full, finding petitioner failed to establish his credibility in light of the inconsistencies identified above. The IJ was not persuaded that the letters from Mr. He’s father, cousin, or the nun were reliable. The IJ found that petitioner’s father did not show signs of poor memory, nor did Mr. He’s father preface his statement with any language indicating that his son had given him only an approximation of the length of his detention. Regarding the letters from the nun, the IJ found it improbable, given Mr. He’s full-time job as a waiter in Utah, that he made twice-monthly weekend trips to California to attend church. Thus, the IJ found Mr. He failed to make the required showing for asylum, and necessarily failed to meet the higher burden for withholding of removal.

Mr. He then appealed to the BIA, which dismissed his appeal on July 21, 2015. The BIA found the IJ’s credibility finding was not clearly erroneous, and that the inconsistencies identified by the IJ were *719 supported by the record. The BIA affirmed the denial of Mr. He’s petition.

When reviewing a brief order entered by a single member of the BIA under 8 C.F.R. § 1003.1(e)(5), we treat the BIA’s decision as the final order of removal, but “consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir.2007). In addition, “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.” Id. (quotation omitted).

While we review legal determinations de novo, we review factual findings for substantial evidence. See Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.2009). Thus, we “look to the record for ‘substantial evidence’ supporting the agency’s decision: ‘[0]ur duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole.’ ” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006) (alteration in original) (quoting Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.2004)). An alien seeking to overturn a factual finding must meet a demanding standard because “[t]he agency’s findings of fact are conclusive unless the record demonstrates that ‘any reasonable adjudicator would be compelled to conclude to the contrary.’” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir.2008) (quoting 8 U.S.C. § 1252(b)(4)(B)) (further quotation omitted).

“Credibility determinations are factual findings ... subject to the substantial evidence test.” Uanreroro, 443 F.3d at 1204. Accordingly, “we will not question the immigration judge’s or BIA’s credibility determinations as long as they are substantially reasonable.” Woldemeskel v. INS, 257 F.3d 1185, 1192 (10th Cir.2001). But because an alien’s credible testimony may support an application for asylum or restriction on removal without corroboration, see 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); 8 C.F.R. §§ 208.13(a), 208.16(b), the IJ or BIA “must give specific, cogent reasons for disbelieving it.” Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir.2004) (quotation omitted). An adverse credibility finding “may not be based upon speculation, conjecture, or unsupported personal opinion.” Chaib v. Ashcroft, 397 F.3d 1273, 1278 (10th Cir.2005) (quotation omitted).

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Related

Sviridov v. Ashcroft
358 F.3d 722 (Tenth Circuit, 2004)
Elzour v. Ashcroft
378 F.3d 1143 (Tenth Circuit, 2004)
Chaib v. Ashcroft
397 F.3d 1273 (Tenth Circuit, 2005)
Uanreroro v. Ashcroft
443 F.3d 1197 (Tenth Circuit, 2006)
Sarr v. Gonzales
474 F.3d 783 (Tenth Circuit, 2007)
Ismaiel v. Mukasey
516 F.3d 1198 (Tenth Circuit, 2008)
Witjaksono v. Holder
573 F.3d 968 (Tenth Circuit, 2009)
J-Y-C
24 I. & N. Dec. 260 (Board of Immigration Appeals, 2007)

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Bluebook (online)
638 F. App'x 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daoi-kai-he-v-lynch-ca10-2016.