Thanga v. Gonzales

162 F. App'x 295
Court of Appeals for the Fifth Circuit·Decided January 10, 2006·No. No. 04-61058·Published

Opinion

PER CURIAM: *

Lai Tlan Thanga petitions this court for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”), which affirmed the immigration judge’s denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons that follow, we deny the petition for review.

I. FACTS AND PROCEEDINGS

Mr. Lai is a citizen of Burma who entered the United States on July 24, 2002 without inspection. On July 26, 2002, the former Immigration and Naturalization Service (“INS”) initiated removal proceedings against him, charging him as an alien subject to removal under the Immigration and Nationality Act (“INA”), § 212(a)(6)(A)(i). 8 U.S.C. § 1182(a)(6)(A)(i). Mr. Lai appeared before the immigration judge (“IJ”), admitted to the charges of removability, and also submitted an application for asylum, withholding of removal, and protection under the CAT.

Mr. Lai was the only witness at his hearing before the IJ. He testified that he is part of the Chin ethnic minority. The Chin are largely Christians in an otherwise dominantly Buddhist country; Mr. Lai is a Christian. He is also affiliated with the political group called the Chin National Front (“CNF”), which challenges the Burmese political system. He testified that he fears future persecution because of these affiliations. Specifically, he fears he will be arrested or killed by the Burmese government if he returns to Burma. He claims there is no safe place in the country for him to live.

In response to questions about past persecution, Mr. Lai testified that, in 1990 and 1991, he was beaten by the Burmese government because he suffered an illness and could not pay the government when unable to work. When questioned about this practice, Mr. Lai replied that non-Chin people also had to pay thé government [297] when unable to work. Mr. Lai also stated that he was forced to work without compensation on five different occasions, each for a week’s duration. Due to his Chin ethnicity, his land was confiscated in 1998, and his family was ordered not to participate in Christian worship services.

Mr. Lai stated that he joined the CNF in 1990 and that the government is aware of his affiliation. He said that he knew three members of the organization who were killed by the Burmese government. After a village elder advised him to escape, Mr. Lai fled to India in 2001, where he stayed in a friend’s hut for approximately one year. Mr. Lai testified that, in his absence, the Burmese government came looking for him and that the authorities raped his wife when she refused to disclose his whereabouts. In 2002, Mr. Lai traveled to Mexico with fourteen other individuals. While in Mexico, he and his friends rented a van and entered the United States by way of El Paso. Although he did not have a visa, Mr. Lai testified that the border patrol admitted him and the others in the van.

In his decision, the IJ demonstrated his concern with Mr. Lai’s credibility. Specifically, he doubted the plausibility of Mr. Lai’s entry into the United States. He also questioned why Mr. Lai first mentioned his wife’s rape at the hearing, even though Mr. Lai had known of the fact for five months. The IJ was particularly troubled by the fact that Mr. Lai was the sole person to testify and that he presented no documentary evidence or affidavits. The IJ observed that some of the friends Mr. Lai mentioned whom he knew in the United States or with whom he had traveled could have come forward, or letters from friends in India could have been produced. Though the IJ determined that evidence should have been reasonably available in corroboration of Mr. Lai’s story, none was given. As a result, the IJ found that Mr. Lai failed to meet his burden of proof that the alleged events did in fact occur.

The IJ further found that, even if Mr. Lai’s story was taken to be true, he did not qualify for asylum because he was not persecuted in his home country. The short period of forced labor and the land confiscation did not rise to a level of severity constituting persecution. The IJ noted that Mr. Lai alleged he was persecuted because the government was looking for him, but the IJ found this unlikely given that he had remained in the same village for a long period of time without incident. The IJ concluded that Mr. Lai had failed to meet his burden in establishing eligibility for asylum, and in failing to meet that burden, had also failed to meet the burden for withholding of removal and protection under the CAT.

The BIA adopted and affirmed the decision of the IJ. Moreover, the BIA agreed that Mr. Lai’s lack of reliable corroborating evidence casts doubt on his credibility and led to the conclusion that Mr. Lai did not meet his burden of proving eligibility for relief from removal.

II. STANDARD OF REVIEW

Where the BIA affirms the decision of the IJ without opinion or additional explanation, this court then reviews the decision of the IJ. Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.2003). This court reviews factual findings of the IJ and BIA under a deferential standard. For this court to reverse a factual finding, “the applicant must show that ‘the evidence he presented was so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution.’ ” Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 351 (5th Cir.2002) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). It is not enough that the evidence [298] supports the conclusion to reverse; the evidence must compel it. Elias-Zacarias, 502 U.S. at 481 n. 1,112 S.Ct. 812. See also Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.2001).

Credibility determinations are within the province of the factfinder. Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir.1994). This court will not substitute its judgment for that of the IJ with respect to the credibility of witnesses or ultimate findings of fact based on credibility determinations. Id.; Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005). Moreover, this court will not review decisions turning entirely on the IJ’s assessment of the alien petitioner’s credibility. Chun, 40 F.3d at 78.

III. DISCUSSION

A. Mr. Lai’s Claims for Relief

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Thanga v. Gonzales, 162 F. App'x 295 (5th Cir. 2006).

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