2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-30-2011

Dawa v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3850

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 10-3850

_______________

PUCUO DAWA, Petitioner

v.

ATTORNEY GENERAL OF

THE UNITED STATES, Respondent

_______________

On Petition for Review of a Final Order 

of the Board of Immigration Appeals

Immigration Judge: Honorable Henry S. Dogin

(No. A088-533-371)

_______________

Submitted Under Third Circuit LAR 34.1(a)

November 15, 2011

_______________

Before: McKEE, Chief Judge, RENDELL, and AMBRO, Circuit Judges

(Opinion filed: November 30, 2011)

_______________

OPINION

_______________

AMBRO, Circuit Judge

Pucuo Dawa seeks review of a final order of the Board of Immigration Appeals 

(“BIA”) denying his request for asylum, withholding of removal, and protection under 

the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”), as affirmed by 
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the BIA, found that Dawa — a self-identified Tibetan dissident — did not credibly 

establish that the Chinese government persecuted him in the past nor did he credibly 

establish a well-founded fear that the Chinese government will persecute him in the 

future. In addition, the IJ and the BIA found that Dawa failed to establish a clear 

probability that his life or freedom would be threatened if he returned to China, that he 

was tortured in the past, or that it is more likely than not that he will be tortured in the 

future. Because the evidence does not compel a contrary conclusion, we deny the 

petition for review. 

I.

Because we write solely for the parties, we set forth only those facts necessary for 

our decision. Dawa was admitted to the United States in February 2007 on a religious 

worker visa. In October 2007, he filed an affirmative application for asylum, withholding 

of removal, and relief under the CAT. Dawa’s asylum officer denied his application 

because he failed to establish his identity as a Tibetan. In November 2007, the 

Department of Homeland Security (“DHS”) served Dawa with a Notice to Appear, 

alleging that he did not fulfill the requirements of his religious worker visa and was 

therefore out of status and removable. After two preliminary hearings, Dawa testified 

before an IJ in November 2008 as the sole witness in support of his applications for relief 

from removal. The IJ found Dawa not credible, denied all forms of relief, and ordered 

him removed. The BIA dismissed his appeal and this petition for review followed. 

At the removal hearing, Dawa testified that he is an ethnic Tibetan who was forced 

to flee China because he is an advocate for Tibetan independence. He did not produce 
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his birth certificate or his Chinese identification card, which would indicate any Tibetan 

ethnicity. His passport makes no mention of Tibetan ethnicity even though, as Dawa 

admits, the Chinese government would have relied on the information on his 

identification card when creating his passport. Dawa testified that he was born in Khula 

Shan Village in Sichuan Province; however, his green book (a document issued by the de 

facto Tibetan government in exile) lists his birthplace as Oatqku. 

According to his testimony, Dawa was arrested, interrogated, and detained for

over three months in 2001 for distributing pamphlets advocating Tibetan independence in 

Lithang, a town located in the Ganzi Tibetan Autonomous Prefecture. During his 

detention, Dawa claims he was physically abused and threatened with death. After his 

release, he continued his nomadic lifestyle with his wife and children, traveling 

throughout Sichuan Province and other parts of China. Dawa returned to Lithang in 

August 2006, scattering flyers advocating for a free Tibet. Several months later he met a 

Buddhist monk in Beijing who helped him obtain his passport and religious worker visa. 

After he arrived in the United States in February 2007, Dawa continued his advocacy by 

participating in demonstrations against the Chinese government. He testified that a few 

weeks before his hearing a man named Tharchen, a Tibetan living in New York who did 

not testify or submit any affidavits, supposedly spoke on the phone with others in Lithang 

who informed Dawa that the police were searching for him. 

When denying Dawa’s claims for relief, the IJ expressed doubt that he was in fact 

Tibetan because he provided no supporting documentation and his testimony about his 

birthplace conflicted with his green book. Nevertheless, the IJ assumed Dawa was 
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Tibetan and found that he did not meet his burden of establishing asylum eligibility. 

With respect to past persecution, the IJ found it implausible that the Chinese government 

would have allowed Dawa to continue traveling throughout the country without incident 

from 2001 to 2006 if he was in fact arrested and detained in 2001 for dissidence. In 

addition, the IJ concluded that Dawa did not meet his burden of showing a well-founded 

fear of future persecution because the IJ did not believe that there was credible evidence 

that anyone was looking for Dawa in China. The IJ also denied Dawa’s CAT claim 

because Dawa did not show that the Chinese government would torture him if he returned 

to China. 

The BIA dismissed Dawa’s appeal. It found that the IJ properly considered the 

totality of the circumstances in finding that Dawa lacked credibility based on problems 

with his evidence, portions of his testimony, and inconsistencies in the record. The BIA 

noted that Dawa did not present reasonably available corroborating evidence nor did he 

claim that such evidence was not reasonably available or offer a sufficient explanation, 

when given the opportunity, as to why he did not submit more evidence. The BIA also 

agreed with the IJ’s factual findings and legal conclusions regarding Dawa’s CAT claim.

II.

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) to review the IJ’s removal 

decision. We have jurisdiction under 8 U.S.C. § 1252 to review the BIA’s final order of

removal. 

“[W]hen the BIA both adopts the findings of the IJ and discusses some of the 

bases for the IJ’s decision, we have authority to review the decisions of both the IJ and 
5

the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review legal 

conclusions de novo. Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d Cir. 2006). We 

review factual findings, including adverse credibility determinations, under the 

substantial evidence standard. Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir. 2009). 

This is an “extraordinarily deferential standard.” Id. (quoting Chen, 376 F.3d at 226). 

We are required to afford the IJ’s adverse credibility determinations such great deference 

so long as the IJ provides “specific, cogent reasons” why the applicant is not credible. 

Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). If those reasons are provided, 

we may not overturn an adverse credibility determination unless we conclude that “any 

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

§ 1252(b)(4)(B) (emphasis added). To reverse an adverse credibility finding, “the 

evidence of credibility must be so strong . . . that in a civil trial [the applicant] would be 

entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222. 

III.

To establish eligibility for asylum, Dawa must show by a reasonable likelihood 

either that he experienced past persecution or that he has a well-founded fear of future 

persecution. 8 U.S.C. § 1101(a)(42)(A) & § 1158(b)(1)(A). To establish a well-founded 

fear of future persecution, he must first “demonstrate a subjective fear of persecution 

through credible testimony that [his] fear is genuine.” Lie v. Ashcroft, 396 F.3d 530, 536

(3d Cir. 2005). Then, he must make the objective showing that “‘a reasonable person in 

[his] circumstances would fear persecution if returned to the country in question.’” Id.

(quoting Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003)).
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To establish eligibility for withholding of removal, Dawa must show by a “clear 

probability that [his] life or freedom would be threatened” in China. Zubeda v. Ashcroft,

333 F.3d 463, 469 (3d Cir.2003) (internal quotation marks omitted). A “clear 

probability” means that it is “more likely than not” that he would be subject to 

persecution. Id. Similarly, to establish eligibility for relief under the CAT, Dawa must 

“establish that it is more likely than not that he . . . would be tortured if removed to” 

China. 8 C.F.R. § 1208.16(c)(2). The “clear probability” standard required for 

withholding of removal is a “more rigorous” standard than the “well-founded fear” 

standard for asylum. Zubeda, 333 F.3d at 469. Thus, if Dawa fails to meet the latter 

standard, he necessarily will fail to meet the clear probability standard required for 

withholding of removal. Id. at 469-70.

Under the REAL ID Act of 2005, which applies here, credibility determinations in 

relation to applications for asylum must be made “[c]onsidering the totality of the 

circumstances,” and may be based on “the inherent plausibility of the applicant’s . . . 

account, the consistency between the applicant’s . . . written and oral statements . . ., the 

consistency of such statements with other evidence of record . . ., and any inaccuracies or 

falsehoods in such statements.” 8 U.S.C. § 1158(b)(1)(B)(iii). The trier of fact may make 

the assessment “without regard to whether an inconsistency, inaccuracy, or falsehood 

goes to the heart of the applicant’s claim, or any other relevant factor.” Id. Even if the 

applicant gives otherwise credible testimony, the trier of fact may require the applicant to 

submit corroborating evidence, unless the applicant does not have the evidence or cannot 

reasonably obtain the evidence. 8 U.S.C. § 1158(b)(1)(B)(ii).
7

The IJ found that Dawa failed to establish past persecution because the IJ

considered implausible Dawa’s testimony that he had been detained and fingerprinted by 

Chinese authorities in 2001, but nonetheless was able to continue traveling as a known 

dissident throughout China and Tibet for the next five years without incident. After 

reviewing the record, we cannot say that no reasonable factfinder would find Dawa’s 

testimony to be incredible or (put differently) that a reasonable factfinder would be 

compelled to find in Dawa’s favor. 

In addition, Dawa failed to meet his burden of proof with respect to future 

persecution because he did not present corroborating evidence that appears to have been 

reasonably available to him. Dawa could have presented testimony or an affidavit from 

Tharchen, who was just across the Hudson River in New York City, but he did not. As 

the IJ and the BIA noted, Tharchen could have spoken to whether Chinese authorities 

were in fact looking for Dawa and how (and from whom) he obtained that information. 

Dawa has not offered a sufficient explanation as to why he did not and could not submit 

further evidence from Tharchen. 

Neither the IJ nor the BIA committed reversible error in finding that Dawa did not 

credibly establish that (1) he suffered past persecution, (2) he has a well-founded fear of 

future persecution, (3) there is a clear probability that his life or freedom would be 

threatened if he returned to China, (4) he was tortured in the past, or (5) it is more likely 

than not that he will be tortured in the future. Accordingly, we deny Dawa’s petition for 

review.