Xiu Zheng v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 15, 2020
• Docket: 19-12781
• Status: Unpublished

Opinion

Case: 19-12781 Date Filed: 04/15/2020 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12781 Non-Argument Calendar ________________________

Agency No. A208-931-288

XIU ZHENG,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(April 15, 2020)

Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 19-12781 Date Filed: 04/15/2020 Page: 2 of 10

Xiu Zheng seeks review of the Board of Immigration Appeals’ (BIA) final

order dismissing his appeal of an Immigration Judge’s (IJ) denial of his claims for

asylum and withholding of removal under the Immigration and Nationality Act

(INA), and for protection under the Convention Against Torture (CAT). Zheng

argues that the BIA erred in concluding (1) that he did not provide credible

testimony; (2) that his corroborating evidence was insufficient to establish a well-

founded fear of persecution to qualify for asylum; and (3) that he was ineligible for

withholding of removal or CAT protection. Because substantial evidence supports

the BIA’s findings, we affirm.

As the facts of the case are familiar to the parties, we will proceed straight to

the merits of Zheng’s appeal, taking each of his arguments in turn.

I

“We review the BIA’s decision as the final judgment, unless the BIA

expressly adopted the IJ’s decision.” Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,

403 (11th Cir. 2016). “Where the BIA agrees with the IJ’s reasoning, we review

the decisions of both the BIA and the IJ to the extent of the agreement.” Id. “We

do not consider issues that were not reached by the BIA.”1 Id.

We review all conclusions of law by the BIA de novo, but we review factual

1 Here, therefore, we need not discuss Zheng’s arguments pertaining to the IJ’s findings surrounding his church attendance in the United States, as the BIA did not rely on those findings in its order. Gonzalez, 820 F.3d at 403. 2 Case: 19-12781 Date Filed: 04/15/2020 Page: 3 of 10

findings under the substantial-evidence test, which requires us to “view the record

evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision.” Kazemzadeh v. U.S. Att’y Gen.,

577 F.3d 1341, 1350–51 (11th Cir. 2009) (internal quotation marks and citation

omitted). Likewise, we review credibility determinations under the substantial-

evidence test. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th Cir. 2006).

Under this highly deferential standard, we must affirm the BIA’s decision if it is

supported by substantial evidence on the record considered as a whole. D-

Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817–18 (11th Cir. 2004). Factual

findings “may be reversed . . . only when the record compels a reversal; the mere

fact that the record may support a contrary conclusion is not enough to justify a

reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004) (en banc).

II

A

We will start with the BIA’s findings about Zheng’s credibility. The BIA

must support an adverse credibility determination with “specific, cogent reasons

for the finding.” Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1305 (11th Cir.

2009). “The burden then shifts to the alien to show that the credibility decision

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was not supported by specific, cogent reasons or was not based on substantial

evidence.” Id. (internal quotation marks and citation omitted).

In making a credibility finding, the BIA may base its considerations on “the

totality of the circumstances,” including “the demeanor, candor, or responsiveness

of the applicant[,] . . . the inherent plausibility of [his] account, the consistency

between [his] written and oral statements[,] . . . the internal consistency of each

such statement, the consistency of such statements with other evidence of

record[,] . . . and any inaccuracies or falsehoods in such statements.” 8 U.S.C.

§ 1229a(c)(4)(C). Indeed, the BIA may rely on these relevant credibility

considerations “without regard for whether an inconsistency, inaccuracy, or

falsehood goes to the heart of the applicant’s claim.” Id. The BIA does not have

to accept an explanation for an inconsistency simply because the explanation is

“tenable.” Chen, 463 F.3d at 1233. Additionally, “[t]he IJ alone is positioned to

make determinations about demeanor—by observing the alien and assessing his or

her tone and appearance—and in that sense is uniquely qualified to decide whether

an alien’s testimony has about it the ring of truth.” Todorovic v. U.S. Att’y Gen.,

621 F.3d 1318, 1324 (11th Cir. 2010) (internal quotation marks and citation

omitted).

4 Case: 19-12781 Date Filed: 04/15/2020 Page: 5 of 10

B

Here, substantial evidence supports the BIA’s adverse credibility

determination, which was substantiated by specific and cogent findings. Between

Zheng’s asylum application, his testimony before the IJ, and his mother’s reference

letter, the BIA identified two discrepancies: First, the BIA noted that there was

inconsistent information in the record about how many times the police had visited

Zheng’s home in China. Specifically, Zheng initially testified that the police had

come looking for him three times before he left China, but that he didn’t know how

many times they had come after he left. Later in that same testimony, though,

Zheng testified that his family had told him that the police had come to his home

looking for him three times after he left China. Compounding matters, his

mother’s undated reference letter mentions only one police visit. Although Zheng

argued that his mother’s letter was written before additional police visits occurred,

the BIA and IJ were not required to accept this explanation. 2 See Chen, 463 F.3d

at 1233. Second, and separately, the BIA observed that Zheng had not fully and

accurately described his travel to the United States through Mexico on his asylum

2 In his brief, Zheng notes that the envelope containing his mother’s letter was dated January 4, 2017, which he argues supports his story that the letter could have been written before additional police visits occurred. Even assuming that this is true, and that the letter does predate additional police visits made after Zheng left China, that does not fully account for the inconsistencies in his own testimony, or the inconsistencies between the letter and his testimony as to the number of police visits that occurred before he left China.

5 Case: 19-12781 Date Filed: 04/15/2020 Page: 6 of 10

application. Although Zheng testified that he had entered Mexico on a six-month

work visa, he did not disclose that fact on his asylum application.3

Additionally, the BIA held that the IJ had not clearly erred in its

determination that Zheng was not credible based on his “demeanor, candor, and

responsiveness to questions posed.” Although the IJ didn’t specifically mention

Zheng’s demeanor in his order, he was in the best position to assess Zheng’s

behavior and candor at the hearing, and he did note that Zheng’s accounting of

events “was not sufficiently detailed and . . . was not a plausible or coherent

account of the basis of his fear.” See Todorovic, 621 F.3d at 1324. Even though

the IJ’s demeanor finding wasn’t particularly strong or detailed, the record here

nevertheless does not “compel” a contrary credibility determination in light of the

specific and cogent inconsistencies in the record.

III

Taking this adverse credibility finding into account, we next address the

BIA’s determination that Zheng did not establish a well-founded fear of future

persecution for purposes of his asylum claim. An alien may be granted asylum if

3 The question at issue on Zheng’s asylum application stated as follows: “Have you . . . ever applied for or received any lawful status in any country other than the one from which you are now claiming asylum?” In response, Zheng checked the “No” box and wrote the following comment: “I left from Shanghai, China on May 4, 2016 and arrived at Tijuana, Mexico on May 5, 2016. I then went from there to California that night.” 6 Case: 19-12781 Date Filed: 04/15/2020 Page: 7 of 10

he or she qualifies as a refugee under the INA. 8 U.S.C. § 1158(b)(1)(A). A

“refugee” is:

any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Id. § 1101(a)(42)(A).

The asylum applicant carries the burden of proving statutory “refugee”

status. Id. § 1158(b)(1)(B)(i). An applicant must “establish (1) past persecution on

account of a statutorily listed factor, or (2) a well-founded fear that the statutorily

listed factor will cause such future persecution.” Diallo v. U.S. Att’y Gen., 596

F.3d 1329, 1332 (11th Cir. 2010) (internal quotation marks and citation omitted).

Additionally, “[a]n applicant must demonstrate that his or her fear of persecution is

subjectively genuine and objectively reasonable.” Yang v. U.S. Att’y Gen., 418

F.3d 1198, 1202 (11th Cir. 2005) (internal quotation marks and citation omitted).

“The subjective component is generally satisfied by the applicant’s credible

testimony that he or she genuinely fears persecution.” Id. (quotation omitted).

And, “[i]n most cases, the objective prong can be fulfilled either by establishing

past persecution or that he or she has a good reason to fear future persecution.” Id.

(internal quotation marks and citation omitted). The applicant must “present

specific, detailed facts showing a good reason to fear that he or she will be singled 7 Case: 19-12781 Date Filed: 04/15/2020 Page: 8 of 10

out for persecution on account of . . . a protected activity.” Forgue v. U.S. Att’y

Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (internal quotation marks and citation

“The testimony of an applicant, if found to be credible, is alone sufficient to”

sustain the burden of proof. Id. at 1287. “Conversely, an adverse credibility

determination alone may be sufficient to support the denial of an asylum

application.” Id. All corroborating evidence must still be considered, though,

when evaluating an asylum application after an adverse credibility determination

has been made. Id. “The weaker an applicant’s testimony, however, the greater

the need for corroborative evidence.” Yang, 418 F.3d at 1201.

Substantial evidence supports the denial of Zheng’s asylum claim, as a

reasonable factfinder could determine that Zheng’s corroborating evidence was

insufficient to meet his burden of proof, particularly in light of the adverse

credibility finding. First, Zheng conceded that he did not suffer from past

persecution, so he needed to establish a well-founded fear of future persecution to

qualify for asylum. See Diallo, 596 F.3d at 1332. In support of his claim, Zheng

presented a significant amount of evidence to corroborate what happened to him

and his classmates in China, as well as evidence of his practice of Christianity in

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the United States, and country-condition reports detailing the negative treatment of

Christians in China.

The BIA, however, adopted the IJ’s finding that some of Zheng’s

corroborating evidence appeared fabricated—specifically his mother’s reference

letter and the affidavits of two colleagues who had been arrested for distributing

Christian flyers. This finding seems to have been based on the previously

discussed discrepancies between Zheng’s testimony and his mother’s undated

letter, as well as the affidavits’ overall generality and lack of detail. The BIA

further found that although the country-condition reports Zheng submitted did

show that Chinese authorities were hostile to Christians in some regions of the

country, and he had submitted evidence that he had been baptized as a Christian,

that evidence didn’t independently establish a sufficient fear or probability of

future persecution, particularly in light of the adverse credibility determination.

Under the highly deferential substantial-evidence standard, we cannot say

that the record “compels” a different finding. As a result, Zheng has not met his

burden to show a well-founded fear of future persecution. See Adefemi, 386 F.3d

at 1027.

IV

Finally, we briefly discuss the denial of Zheng’s applications for

withholding of removal and CAT protection. Under the withholding of removal

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statute, an alien shall not be removed to a country if his “life or freedom would be

threatened in that country because of [his] race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “The

alien bears the burden of demonstrating that it is ‘more likely than not’ [he] will be

persecuted or tortured upon being returned to [his] country. This is a more

stringent standard than for asylum.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,

1232 (11th Cir. 2005) (quotation omitted).

An applicant seeking protection under CAT must show “that it is more likely

than not that he . . . would be tortured if removed to the proposed country of

removal.” Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004)

(internal quotation marks omitted) (quoting 8 C.F.R. § 208.16(c)(2)).

Additionally, the alien must show that the torture would be by, or with the

acquiescence of, the government. Id. If an applicant fails to meet his burden to

prove eligibility for asylum, he cannot meet the higher standards for withholding of

removal or CAT protection. See Forgue, 401 F.3d at 1288 n.4.

Because we’ve held that Zheng did not meet his burden of proof for asylum

eligibility, he is likewise ineligible for withholding of removal or CAT protection.

See id.

PETITION DENIED