FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 16, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JINHUI ZHANG,
Petitioner,
v. No. 20-9596 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, ∗
Respondent. _________________________________
ORDER AND JUDGMENT ** _________________________________
Before TYMKOVICH, Chief Judge, BRISCOE and BACHARACH, Circuit Judges. _________________________________
Jinhui Zhang (“Petitioner”), proceeding pro se, 1 petitions for review from the
Board of Immigration Appeals’ (“BIA’s”) denial of asylum, withholding of removal,
∗ On March 11, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for Robert M. Wilkinson as Respondent, per Fed. R. App. P. 43(c)(2). ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because he proceeds pro se, we liberally construe Petitioner’s filings, but “we do not assume the role of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal quotation marks omitted). and relief under the Convention Against Torture (“CAT”). Petitioner is not entitled
to any of these forms of relief because substantial evidence supports the finding that
he did not testify credibly at his individual immigration hearing. Accordingly,
exercising jurisdiction under 8 U.S.C. § 1252, we DENY the petition for review.
I. Background
Petitioner is a native and citizen of China. He came to the United States in
October 2015 without a valid entry document and expressed fear of returning to
China. An asylum officer interviewed Petitioner and found his fear to be credible.
The government thereafter served Petitioner with a notice to appear, charging him as
removable as a noncitizen not in possession of a valid entry document at the time of
his application for admission. Petitioner admitted the factual allegations in the notice
to appear, conceded the charge of removability, and applied for asylum, withholding
of removal, and protection under the CAT. In support of these applications,
Petitioner asserted he faced religious persecution because he was arrested for
attending an underground Christian church in China and that he was beaten,
interrogated, and threatened during his detainment by Chinese officials.
An Immigration Judge (“IJ”) held an individual hearing at which Petitioner,
but not the asylum officer, testified. After the hearing, the IJ found Petitioner’s
testimony was not credible and the other evidence presented was insufficient to meet
his burden of proof. Although the asylum officer did not testify, the IJ considered the
officer’s notes from the interview with Petitioner. Specific reasons for the IJ’s
adverse credibility finding included: inconsistencies between the claims Petitioner
2 made during his interview and those he made in his testimony, inconsistencies
between Petitioner’s testimony on direct and cross-examination, and Petitioner’s
statements and conduct evidencing a past willingness to lie to obtain immigration
benefits.
For example, in his interview with the asylum officer, Petitioner expressly
denied experiencing physical abuse during his detention in China and stated only that
he faced “not severe” harm from fellow inmates who kicked him. In his testimony
before the IJ, though, Petitioner claimed he was beaten twelve times by the Chinese
police while detained, and that during an interrogation officers slapped him, pulled
his hair, pounded his head on the table, pushed him to the ground and kicked him.
This level of detail was also absent from his written I-589 asylum application. The IJ
therefore found that “from his credible fear interview to his testimony in court, there
was a dramatic crescendo, and what the Court finds an embellishment, of the level of
harm claimed . . . .” R. at 48. Petitioner also testified contrary to his interview on
the subjects of whether the house church he attended in China was illegal and the
dates of his arrest and detention.
The BIA affirmed the adverse credibility determination on appeal because it
was not clearly erroneous. The BIA specifically concluded Petitioner had the
opportunity to explain these discrepancies during his testimony but did not do so.
The BIA also rejected Petitioner’s argument that it was error to consider his past
misrepresentations to immigration officials because, even without those
3 misrepresentations, the IJ had sufficiently supported her adverse credibility findings.
See R. at 3.
Petitioner timely requested review from this court.
II. Standard of Review
We review the decision of the BIA “as the final agency determination, limiting
our review to the issues specifically addressed therein.” Gutierrez-Orozco v. Lynch,
810 F.3d 1243, 1245 (10th Cir. 2016). But “we may consult the IJ’s opinion to the
extent that the BIA relied upon or incorporated it, so as to give substance to the
BIA’s reasoning.” Id. (internal citations and quotation marks omitted). “We review
the BIA’s findings of fact under the substantial-evidence standard.” Id. Under this
“highly deferential” standard, “[t]o obtain reversal of factual findings, a petitioner
must show the evidence he presented was so compelling that no reasonable factfinder
could find as the BIA did.” Id. (internal quotation marks omitted).
III. Use of Interview Notes
Petitioner argues the IJ erred in basing her adverse credibility finding, in part,
on inconsistencies between his statements at the hearing and the notes from his
interview with an asylum officer because the asylum officer was not present at the
hearing to testify. But “evidentiary rules are not strictly applied at immigration
hearings.” Bauge v. I.N.S., 7 F.3d 1540, 1543 (10th Cir. 1993). Instead, “[t]he test
for admissibility of evidence in a deportation hearing is whether the evidence is
probative and whether its use is fundamentally fair so as not to deprive the alien of
due process of law.” Id. (internal quotation marks omitted).
4 Petitioner does not challenge the probative value of the interview notes. He
instead asserts reference to the notes was fundamentally unfair because he could not
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 16, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JINHUI ZHANG,
Petitioner,
v. No. 20-9596 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, ∗
Respondent. _________________________________
ORDER AND JUDGMENT ** _________________________________
Before TYMKOVICH, Chief Judge, BRISCOE and BACHARACH, Circuit Judges. _________________________________
Jinhui Zhang (“Petitioner”), proceeding pro se, 1 petitions for review from the
Board of Immigration Appeals’ (“BIA’s”) denial of asylum, withholding of removal,
∗ On March 11, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for Robert M. Wilkinson as Respondent, per Fed. R. App. P. 43(c)(2). ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because he proceeds pro se, we liberally construe Petitioner’s filings, but “we do not assume the role of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal quotation marks omitted). and relief under the Convention Against Torture (“CAT”). Petitioner is not entitled
to any of these forms of relief because substantial evidence supports the finding that
he did not testify credibly at his individual immigration hearing. Accordingly,
exercising jurisdiction under 8 U.S.C. § 1252, we DENY the petition for review.
I. Background
Petitioner is a native and citizen of China. He came to the United States in
October 2015 without a valid entry document and expressed fear of returning to
China. An asylum officer interviewed Petitioner and found his fear to be credible.
The government thereafter served Petitioner with a notice to appear, charging him as
removable as a noncitizen not in possession of a valid entry document at the time of
his application for admission. Petitioner admitted the factual allegations in the notice
to appear, conceded the charge of removability, and applied for asylum, withholding
of removal, and protection under the CAT. In support of these applications,
Petitioner asserted he faced religious persecution because he was arrested for
attending an underground Christian church in China and that he was beaten,
interrogated, and threatened during his detainment by Chinese officials.
An Immigration Judge (“IJ”) held an individual hearing at which Petitioner,
but not the asylum officer, testified. After the hearing, the IJ found Petitioner’s
testimony was not credible and the other evidence presented was insufficient to meet
his burden of proof. Although the asylum officer did not testify, the IJ considered the
officer’s notes from the interview with Petitioner. Specific reasons for the IJ’s
adverse credibility finding included: inconsistencies between the claims Petitioner
2 made during his interview and those he made in his testimony, inconsistencies
between Petitioner’s testimony on direct and cross-examination, and Petitioner’s
statements and conduct evidencing a past willingness to lie to obtain immigration
benefits.
For example, in his interview with the asylum officer, Petitioner expressly
denied experiencing physical abuse during his detention in China and stated only that
he faced “not severe” harm from fellow inmates who kicked him. In his testimony
before the IJ, though, Petitioner claimed he was beaten twelve times by the Chinese
police while detained, and that during an interrogation officers slapped him, pulled
his hair, pounded his head on the table, pushed him to the ground and kicked him.
This level of detail was also absent from his written I-589 asylum application. The IJ
therefore found that “from his credible fear interview to his testimony in court, there
was a dramatic crescendo, and what the Court finds an embellishment, of the level of
harm claimed . . . .” R. at 48. Petitioner also testified contrary to his interview on
the subjects of whether the house church he attended in China was illegal and the
dates of his arrest and detention.
The BIA affirmed the adverse credibility determination on appeal because it
was not clearly erroneous. The BIA specifically concluded Petitioner had the
opportunity to explain these discrepancies during his testimony but did not do so.
The BIA also rejected Petitioner’s argument that it was error to consider his past
misrepresentations to immigration officials because, even without those
3 misrepresentations, the IJ had sufficiently supported her adverse credibility findings.
See R. at 3.
Petitioner timely requested review from this court.
II. Standard of Review
We review the decision of the BIA “as the final agency determination, limiting
our review to the issues specifically addressed therein.” Gutierrez-Orozco v. Lynch,
810 F.3d 1243, 1245 (10th Cir. 2016). But “we may consult the IJ’s opinion to the
extent that the BIA relied upon or incorporated it, so as to give substance to the
BIA’s reasoning.” Id. (internal citations and quotation marks omitted). “We review
the BIA’s findings of fact under the substantial-evidence standard.” Id. Under this
“highly deferential” standard, “[t]o obtain reversal of factual findings, a petitioner
must show the evidence he presented was so compelling that no reasonable factfinder
could find as the BIA did.” Id. (internal quotation marks omitted).
III. Use of Interview Notes
Petitioner argues the IJ erred in basing her adverse credibility finding, in part,
on inconsistencies between his statements at the hearing and the notes from his
interview with an asylum officer because the asylum officer was not present at the
hearing to testify. But “evidentiary rules are not strictly applied at immigration
hearings.” Bauge v. I.N.S., 7 F.3d 1540, 1543 (10th Cir. 1993). Instead, “[t]he test
for admissibility of evidence in a deportation hearing is whether the evidence is
probative and whether its use is fundamentally fair so as not to deprive the alien of
due process of law.” Id. (internal quotation marks omitted).
4 Petitioner does not challenge the probative value of the interview notes. He
instead asserts reference to the notes was fundamentally unfair because he could not
cross-examine the asylum officer and because the notes were not a complete
transcript of the interview. But Petitioner does not explain what information he
would have elicited from the asylum officer on cross-examination or what
information was left out of the officer’s notes. And, in any event, the IJ’s adverse
credibility finding was supported by more than inconsistencies with the credible fear
interview; she also cited inconsistent testimony Petitioner presented at the hearing
itself and Petitioner’s inability to explain the changes in his story. See Diallo v.
Gonzales, 447 F.3d 1274, 1283 (10th Cir. 2006) (affirming adverse credibility
determination where petitioner “was given the opportunity to explain the
inconsistencies but failed to do so to the IJ’s satisfaction”).
IV. Consideration of Past Willingness to Lie to Immigration Officials
Petitioner also argues it was error for the IJ to base her adverse credibility
finding, in part, on his admitted past willingness to lie to obtain immigration benefits.
But the BIA concluded, and we agree, that “[e]ven without [Petitioner’s]
misrepresentations to the immigration official, the [IJ] provided sufficient support for
her adverse credibility finding.” R. at 3. Petitioner therefore falls well short of
5 showing no reasonable factfinder could have reached the same conclusions as the
BIA, so we deny the petition for review.
Entered for the Court
Mary Beck Briscoe Circuit Judge