Qiang Chen-Guo v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 5, 2024
• Docket: 23-3520
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION FILE NAME: 24A0096N.06

Case No. 23-3520

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

) FILED QIANG CHEN-GUO, Mar 05, 2024 ) Petitioner, ) KELLY L. STEPHENS, Clerk ) v. ) ON PETITION FOR REVIEW ) FROM THE BOARD OF MERRICK B. GARLAND, Attorney General, ) IMMIGRATION APPEALS Respondent. ) ) OPINION )

Before: BATCHELDER, MOORE, and CLAY, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Qiang Chen-Gou sought asylum and

withholding of removal under the Immigration and Nationality Act (INA), and protection under

the Convention Against Torture (CAT). An Immigration Judge (IJ) denied his application, the

Board of Immigration Appeals (BIA) dismissed the appeal, and Qiang petitions this court for

further review. We DENY the petition.

I.

Qiang Chen-Guo is a 27-year-old native and citizen of China. He entered the United States

in 2013 and the Department of Homeland Security (DHS) issued him a Notice to Appear. He

conceded removability, with China as the country of removal, but sought asylum, withholding of

removal, and CAT protection due to his fear of persecution for his Christian religious beliefs.

Specifically, Qiang claimed to fear religious persecution in China, asserting that he had been

arrested, beaten, and detained because he attended an underground Christian church.

At the immigration hearing, Qiang was the only witness and the IJ found that his testimony

was not credible. The IJ listed several reasons for this finding, starting with her assessment of No. 23-3520, Chen-Guo v. Garland

Qiang’s demeanor as evasive and non-responsive, explaining that he “had to be asked multiple

simple questions over and over again before providing an answer” and then frequently answered

“that he did not remember, particularly if the question asked about a subject that was potentially

negative to [his] claim.” But the IJ also described three specific instances of Qiang’s inconsistent

testimony as a basis for finding that he lacked credibility.

One, Qiang testified that when the police arrested him at the church in 2013, they beat him

severely before taking him to the police station. He further testified that, later at the police station,

when he would not answer their questions, they beat him again until he lost consciousness. But in

his prior written statement, he never said that he was beaten at the police station.

Two, he testified that upon release from custody on June 15, 2013, he went to hide at the

home of his father’s friend, where he hid for three months (until he left China) to avoid persecution

by the police. Importantly, he testified that he never left that house during those three months.

But the DHS presented evidence that, during the time that he claimed to be in hiding, he went to

the United States Consulate in China and had his fingerprints taken for his visa application.

Three, Qiang testified that he was only ever issued one passport, but could not explain why

his proffered passport had no entry or exit stamps for the countries that he had traveled through on

his way to the United States (i.e., Russia, France, and Mexico). The DHS submitted another

passport, which Qiang had used to apply for a visa to come to the United States. Confronted with

this, Qiang testified that he could not remember if he had ever been issued any other passports.

Moreover, Qiang did not submit evidence to corroborate his claim. Qiang testified that he

had a sister, a brother, and some cousins living in the U.S. and that they were familiar with his

arrest and injury in China, but he did not provide any affidavit(s) from any of them or call any of

them to testify at the hearing.

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The IJ found that Qiang was not credible and held that he was not entitled to relief. The IJ

further explained, in dicta, that even if Qiang were credible, the harm he described from the arrest

and mistreatment in China would not constitute past persecution, inasmuch as Qiang testified that

the result of those beatings was “only bruises that were treated with some ointment.” Moreover,

based on his own description of his trip from China, Qiang had not established a fear of future

persecution. According to Qiang, he made several aborted attempts to come to the United States

before finally doing so; he passed through several countries before arriving in the United States

without making a claim of fear in any of those countries (notably France, which is a signatory to

the same protective conventions as the United States); and, despite his testimony that the police in

China continued to search for him, he was not only allowed to leave China, he was issued a new

passport from the Chinese authorities to facilitate his departure. Finally, the DHS produced

evidence that Qiang would not be at risk personally for his practicing Christianity in China, and

that he was unlikely to be tortured if removed to China.

Qiang sought review from the BIA, claiming that the inconsistencies in his testimony were

not relevant to his credibility, so the BIA should overrule the IJ’s determination, deem him

credible, and grant him the relief he sought. The BIA found that the IJ’s “cogent reasons” for

finding that Qiang was not credible were supported by the record, see N’Diom v. Gonzales, 442

F.3d 494, 500 (6th Cir. 2006), upheld the IJ’s determination, and dismissed Qiang’s appeal.

II.

When the BIA issues an opinion, rather than a summary affirmance, we review that BIA

opinion as the final agency decision. Umaña-Ramos v. Holder, 724 F.3d 667, 670 (6th Cir. 2013).

We review questions of law de novo and the BIA’s factual findings under the highly deferential

substantial-evidence standard, meaning that “findings of fact are conclusive unless any reasonable

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adjudicator would be compelled to conclude to the contrary.” Id. (quoting 8 U.S.C.

§ 1252(b)(4)(B)).

“An asylum applicant bears the burden of demonstrating that [he] qualified as a refugee by

establishing either that [he] has suffered actual past persecution or that [he] has a well-founded

fear of future persecution.” K.H. v. Barr, 920 F.3d 470, 475 (6th Cir. 2019) (quotation marks and

citation omitted). For withholding of removal, the applicant must show that it is “more likely than

not,” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987), that he will be harmed because of his

“race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C.

§ 1231(b)(3)(A). “This more-likely-than-not test sets a higher bar to relief than the well-founded-

fear test required for asylum.” Mbonga v. Garland, 18 F.4th 889, 899 (6th Cir. 2021). “To obtain

relief under the CAT, the applicant bears the burden of establishing it is more likely than not that

he . . . would be tortured if removed to the proposed country of removal.” Marqus v. Barr, 968

F.3d 583, 589 (6th Cir. 2020) (editorial marks, quotation marks, and citation omitted). “Torture is

defined as any act by which severe pain or suffering, whether physical or mental, is intentionally

inflicted on a person when such pain or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official capacity.” Bonilla-

Morales v. Holder, 607 F.3d 1132, 1139 (6th Cir. 2010) (quotation and editorial marks omitted).

We review the BIA’s adverse credibility determination under the substantial-evidence

standard. 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); Marikasi

v. Lynch, 840 F.3d 281, 288 (6th Cir. 2016). Under that standard, which is “extremely deferential,”

Ben Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007), factual findings are “conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C.

§ 1252(b)(4)(B); Garland v. Ming Dai, 593 U.S. 357, 365 (2021). We “may not reverse on the

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basis that [we] would have decided the case differently; rather reversal is merited only if the

evidence not only supports a contrary conclusion as argued by the petitioner, but indeed compels

it.” Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009) (editorial marks, quotation marks, and citation

omitted).

Pursuant to the REAL ID Act, 8 U.S.C. §§ 1158(b)(1)(B)(iii) & 1229a(c)(4)(C), an adverse

credibility determination may be based on any inconsistencies or falsehoods in the record,

regardless of whether they go to the “heart” of the applicant’s claim for relief or protection from

removal. El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009); accord Slyusar v. Holder, 740

F.3d 1068, 1073 (6th Cir. 2014) (explaining that “under the REAL ID Act, even ancillary

inconsistencies in a petitioner’s testimony support adverse credibility determinations”); Seo v.

Holder, 533 F. App’x 605, 611-12 (6th Cir. 2013) (holding that “two inconsistencies that the BIA

identified as a basis for the adverse credibility determination do provide support for its finding that

[petitioner] is not credible, even though both of them are relatively inconsequential to [the] asylum

claim”).

An applicant does not need to provide corroborating evidence if his testimony is credible

and persuasive. 8 U.S.C. § 1158(b)(1)(B)(ii). But, if not, then an applicant’s failure to provide

reasonably available corroborating evidence can support an adverse-credibility determination.

Pilica v. Ashcroft, 388 F.3d 941, 954 (6th Cir. 2004) (holding that the IJ “did not err in using [the

applicant]’s failure to provide corroborating evidence as further support for the negative credibility

finding”); Altangerel v. Holder, 366 F. App’x 574, 578 (6th Cir. 2010) (“Although corroborating

testimony is not required for a favorable credibility determination, the BIA may rely on a lack of

corroborative evidence to reach its conclusion when it finds that the applicant’s testimony lacks

credibility.”).

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Corroborating evidence is reasonably available “if it is of the type that would normally be

created or available in the particular country and is accessible to the alien, such as through friends,

relatives, or co-workers.” Dorosh v. Ashcroft, 398 F.3d 379, 382-383 (6th Cir. 2004) (quotation

marks and citation omitted). “An [IJ]’s determination regarding the availability of corroborating

evidence will not be reversed ‘unless . . . a reasonable trier of fact [would be] compelled to

conclude that such corroborating evidence is unavailable.’” Lin, 565 F.3d at 977 (quoting 8 U.S.C.

§ 1252(b)(4)).

Qiang argues here that the inconsistencies in his testimony are explainable and, therefore,

they do not demonstrate that he is not credible. He also argues that the discrepancy between his

written statement and his testimony was only minimal and should not support an adverse

credibility finding. He adds that, because the IJ did not fully describe—or give specific examples

of—his evasive or non-responsive demeanor, we should reject that assessment. Finally, he insists

that the country-conditions report for China establishes his well-founded fear of future persecution

and that is enough to entitle him to the relief he seeks.

But the BIA reasonably relied on the inconsistencies in Qiang’s testimony, the

discrepancies between Qiang’s testimony and the documentary evidence in the record, and Qiang’s

failure to produce reasonably available corroborating evidence in finding Qiang not credible. Even

without reference to Qiang’s demeanor and evasiveness, the BIA found that Qiang presented

inconsistent testimony related to the central event that formed the basis for his claim, the beating

by police; that Qiang visited the United States Consulate despite testifying that he was in hiding;

and that Qiang possessed two passports and used a different passport to travel through countries

en route to the United States and to apply for a visa, despite claiming to have only one passport.

Considered in totality, these inconsistencies support the IJ’s and BIA’s adverse credibility

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determinations. Nothing in the record—certainly nothing Qiang points to—compels a contrary

conclusion.

III.

For the foregoing reasons, we DENY the petition for review.