F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J I E C U I , AKA Chet Chui, P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 08-72936

Ag ency No. A096-231-179

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted F ebruary 5, 2013—Pasadena, California

F iled April 10, 2013

B e fore: Consuelo M. Callahan, Sandra S. I kuta, and Andrew D. Hurwitz , Circuit J udg es.

Opinion by

J udg e CallahanC U I V

. H O L D E R

2

SUMMARY *

Im m igration

The panel denied a petition for review from the B oard o f I mmig r a tion A ppeals’ denial, on adverse credibility g rounds, of asy lum, w ithholding of removal, and protection u nder the Convention a g ainst T orture to a native a nd citiz en of China who asserted a fear of p ersecution on account of his practice of Da Z ang Gong or “DZ Gong .”

The panel held that substantial evidence supported the immig ration judg e’s adverse credibility determination based

on pre-REAL I D A ct standards. T h e panel ex plained that petitioner’s travel to Mex ico, his lack of efforts to then enter the United States, and his voluntary decision to r e t urn to China g o to the heart of h is asy lum claim b e cau se they undermine his assertions that h e feared perse c ution. The panel further ex plained that p etitioner’s fau l t y memory o f whether he had to report to the police after an arrest, and his
vag ue, if not inconsistent, statements about whether he had to report to the police when h e re t u r n e d to China were p r o b l e matic, and that under the circumstances, it was reasonable to ex pect him to provide evidence to corroborate his arrests and beating s or o f the arrests and beating s of other DZ Gong members.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C U I V

. H O L D E R 3

COUNSEL

Cindy S. Chang of W alnut, California, for Petitioner.

Michael F

. He r t z , acting Assistant Attorney General; M. J o cely n L opez W rig ht, C h arles S. Greene, I I I (arg ued),

a n d J udith R. O’Sullivan, United States Department o f J ustice, Office of I mmig ration L itig ation, W ashing ton, D.C., for Respondent.

OP INION

CAL L A HAN, Circuit J udg e:

J ie Cui, a native of China, seeks a sy l u m , withholding o f removal, and relief under the Convention A g ainst Torture (“CAT”). Cui cla i m s t hat he has been, and will be, persecuted because o f his practice o f Da Z ang Gon g ( “ D Z Gong ”). T he I mmig ration J u dg e (“I J ”) and B o ard o f I mmig r a tion Appeals (“B I A”) found that Cui w as not

c r e d i ble. W e a f

firm because the adverse credibilit y determination is adequately supported by the record a nd g oes to the heart of his claim.

I

Cui was born in C h i n a i n 1969 and attended Harbin University of Science and Technolo gy , majoring in mechanical eng ineering

. W hile at the university he joined the

s t u d e n t d e m o c r a c y m o v e m e n t a n d h e l p e d l e a d demonstrations. Cui states that he w as then inve s t i g ated b y the Commu nist Party and used as an ex ample of having an incorrect “deep western freedom belief.”C U I V

. H O L D E R

4

I n 1992, after g raduation, Cui was assig ned to a machine factory but, because of his record in the student movement, he “was g iven nothi n g t o do but r eceive political belief ed u c a t i o n every

day .” H e claims he was attacked by a C ommunist party officer in the factory because he sec r e t l y listened to a banned radio prog ram.

I n 1994, Cui met Master Y u Qi, the leader of DZ Gong
, a teaching of Tibetan B uddhism. Cui was curious a bout the teaching a

nd anx ious to leave the f actory , so he became a disciple of Master Y u. F rom 1 994 to 1999, Cui traveled to different places in China arrang ing for and holding classes in DZ Gong

.

Cui claims that in October 1999, two police o f ficers came to his house, told him that DZ Gong was now a banned relig ious org a

niz ation, confiscated his D Z Gong materials,

a n d t old him not to c onduct further activities r elating to DZ Gong

. Cui states that thereafter authorities frequent ly came to his house to threaten h im and to discourag e h i m from practicing DZ Gong , but he continued to practice in secret.

Cui alleg es that one nig ht in December 1999, when he

was teaching a DZ Gong beg inners’ class, four police officers

came in and beat every

one with ba t o ns. He states that the officers arrested him and the other DZ Gong leader a nd took them to the police station where they were beaten, threatened and interrog ated. Cui asserts that the officers questioned him about the whe re a b o u t s of Master Yu, and beat him w hen he said he did not know w here Master Yu was. Cui was released after two weeks and warned that if he continued to practice DZ Gong , he would be detained even long er.C U I V

. H O L D E R 5

I n his application fo r political asy lum, Cui c laimed that “[ b] ecause of the ten s e atmosphere inside the country , on F ebruary 10, 2000, I and two other Gong teachers escaped to Mex ico. O ur purpose was t o f i n d a way to come to the United States and seek relig ious and political asy lum.”

C ui claims that during his two y ears in Mex ic o h e endured hardships because of the lang uag e b a rrier, different relig ious b eliefs, a lack of f riends and relatives, and the hig h cost of living

. He further stated that he could not find a way
to e nter the United States and that it was difficult to promote DZ Gong in Mex ico. He claims that with their money running o ut a

nd feeling homesick, when he and his c olleag ues heard that p olice in China were not arresting people any more, they returned to China in M a y 2 0 0 2 to reunite with their families.

Cui states that just two day s after he arrived home, the police came to his home to arrest him, but they d i d n o t find him because he was c leaning the basement. H e then went to his home town in a farm villag e, where he thoug ht he would be safe. However, a week later on May 21, 2 002, when he was teaching DZ Gong , the police came and arrested him.

Cu i a l leg es that he was detained for two weeks in o ne facility and beaten. He states that the a u thorities had learned of his prior participation in the student movement and asked him questions about his role in the student movement as w ell

as the whereabouts of Master Yu. He claims that they pushed his h e ad into a bucket of water until he almost drowned, beat him with a b aton on the back of his head until he passed out, made him stand outside in h is u nderwear for a whole evening to feed the mosquitos, and on occasion denied him food.C U I V

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Cui alleg es that in J u ne 2002, he was transferred to another jail, where h e was ag ain interrog ated, b eaten a nd tortured. He asserts that he was released at t h e end o f November 2 002 and warne d t h a t if he c ontinued to practice DZ Gong he would ag ain be arrested and detained f or e v e n long er.

Cui d ecided that DZ Gong would never be allowed in China, and after d iscussing the matter with his family
, he left China for Mex ico in March 2003, with the intent of seeking
asy lum i n t h e United States. W ithin day s of his arrival in Tijuana, Cui arrang ed to be smug g led into the United States. He relates that early in a morning he was hidden under a van, but half an h our later he w as discovered by B order Patrol
ag ents.

II

A Notice to Appear charg ed Cui with being removable for h a ving entered the United States without a valid entry document. Cui eventually applied for asy lum, 1 a nd a fter several c ontinuances had a hearing before an I mmig r ation J udg e (“I J ” ). Cui testified a nd o ffered two witnesses: Master Yu and Mr. Shuang -Xi Yang

. B o th were practitioners o f DZ Gong who had been g ranted asy lum. B oth had known Cui in China
, b u t could not testify as to Cui’s particular claims o f

1 Usu ally
, an asy lu m ap plicatio n m u st b e f iled w ith i n a y ea r o f a p erso n ’ s en try in to th e U ni ted States. 8 U.S.C. § 1 1 5 8 (a)(2 )(B ). A n

u n tim ely ap p licatio n m ay b e co n sid ered w h en th e A tto rn ey Gen eral f in d s th at ex trao rd in a ry circu m stan ces j u s t if y th e d elay in f

ilin g

. 8 U.S.C. § 1 1 5 8(a)(2 )(D). Here, th e IJ f o u n d th e req u isite ex t

rao rd i n a r y

c i r c u m stan ces, n otin g th at C u i’ s “ f ailu re to f

ile h is asy lu m ap plica t i o n

w ith in o n e y ear o f h is arriv al w as b ey o n d [h i s] co n tro l .” T h e Go v ern m en t d o es n o t ch allen g e th is f

in d in g

.C U I V

. H O L D E R 7

persecution. After a final hearing o n Aug ust 27, 2007, the I J noted that Cui admitted the alleg ations in t h e Notice to Appear, found Cui not to be credible, and denied him asy lum, withholding o f removal, a nd CAT relief. The I J based his adverse credibility determination on f ive inconsistencies, two material omissions, nine instances of inherently imp lausible
t e s t imony
, and a lack o f corroborative evidence. Cu i appealed to the B I A.

T h e BI A issued an opinion finding that the I J ’s adve r s e

cr edibility determination was not clearly e rroneous a nd dismissing the appeal. The B I A stated:

W h i l e w e do not ag ree with the whole o f the

c redibility determination

– particularly with
, e.g. , the finding that the respondent was inconsistent w i t h respect to when he g ot his visa to visit Mex ico in 1999 and about where he was when he wa s discovered listening to the u nauthoriz ed r adio p rog r am – we find that overall, o ther discrepancies, implausibilities, and the lack of c o r r oborative evidence found by the I mmig rat i o n J u dg e are sufficient to satisfy us that no clear error was committed in the rendering of the adverse credibility determination.

The B I A o b served that the I J c or rectly noted that Cui’s written stat e m e nt f

ailed to mention that he was required to report w eekly to the police station a fter his 1999 d e t e n t i on ended or that he was under p o l i ce supervision when h e left China in 2003. The B I A noted that these alleg ation s were sig nificant because Cui c ontends that he had to “escape” China and that the police we re i n terested in him when heC U I V

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returned to China in 2003. The B I A further noted the lack o f
any corrobor a t i v e evidence o f Cui’s arrests or of the b an on DZ Gong. I t also ag reed w ith the I J ’ s determination that it

was “implausible that someone would travel all the way from China to Mex ico, with th e c l aimed purpose of apply ing for
asy lum in the United States, and ultimately simply re turn to China despite fears of harm awaiting him there.”

The B I A denied Cui’s request for withholding of removal and for CAT relief, commenting : “[ I ] n the absence o f credible evidence reflecting

any reason why

the Chinese g overnment would seek [ Cui]
, there is no evidence of a clear probability of torture at the ins t i ga t ion of, o r with the consent o r acquiescence of, current g o vernment officials.”

III

W h ere, as here, the B I A’s decision in c o r p orates part o f the I J ’s opinion as its own, we review both. Aquilar-Ramos

v. Holder
, 594 F

. 3d 7 01, 704 (9th Cir. 2010) (citing MolinaEstrada v. I.N.S.
, 293 F .3d 1089, 1093 (9th Cir. 2002)). W e review the B I A’s f

inding s of fact, including cre d i b i lity findings, for substantial e vidence and uphold the B I A ’s finding s unl e ss the evidence compels a c ontrary r esult. Almaghzar v. Gonzales
, 457 F .3d 915, 920 (9t h C ir. 2 006);

see also Shrestha v. H

older
, 590 F .3d 1034, 1039, 1048 (9th Cir. 2010). “W hile t h e substantial evidence standard demands deferen c e t o t h e I J
, ‘[ w] e do n ot accept blindly an I J ’s conclusion that a petitioner i s n o t c r edible. Rather, we

ex a mine the reco r d t o see whether substantial evidence supports that conclusion and d etermine w hether the r easoning employ e d by the I J is fatally f lawed.’” Gui v. I.N.S.
, 280 F .3d 1217, 1225 (9th Cir. 2002) (quoting Osorio v. I.N.S.
, 99 F .3d 928, 931 (9th Cir. 1996)).C U I V

. H O L D E R 9

The applicant bears the burden of establishing elig ibility for asy lum throug h cr ed i b l e evidence. See Liu v. H older
, 640 F .3d 9 18, 92 5 (9 th Cir. 2011); Singh v. Ashcroft
, 367 F .3d 1139, 1142 (9th Cir. 2004); Ghaly v. I .N.S.
, 58 F .3d 1425, 1428 (9th Cir. 1995). To p revail, an applicant m u s t present substantial evidence that would support a finding that “any reasonable a djudicator would be compelled to conclude
to the contrary

. ” 8 U.S.C. § 1252(b)(4)(B ); Ali v

. H older
, 637 F .3d 1 025, 1029 (9th Cir. 2011). “W e have held that the uncorroborated testimony of the applicant, if credible, may be sufficient to sustain the applicant’s burden.” S e e Jibril v

. Gonzales
, 423 F

. 3d 1129, 1133 (9th Cir. 2005). “ I f the trier of fact either d oes not believe the applicant o r does not know what to believe, t h e applicant’s failure to corroborate testimo n y c a n be fatal to his a sy lum application.” Sidhu v

. I.N.S.
, 2 2 0 F

. 3d 1 085, 1090 (9th Cir. 2000); see also Malhi v

. I.N.S. , 336 F .3d 989, 993 (9th Cir. 2003).

Here, b ecause Cui filed his asy lum applica t i o n prior to May 11, 2005, the burden of proof provisions in the REAL I D Act of 2005 do not a

p ply

. I n stead, “[ w] h en t h e I J denies
asy lum based ‘on an a dv erse credibility d etermination, he

mus t provide specific, c og e n t r easons to support his determination

. . . [ w h i ch] cannot be peripheral, but rather
must g o to the h eart of p etitioner’s claim.’” Don v. G onzales
, 476 F .3d 738, 7 41 (9th Cir. 2007) (quoting Desta v. Ashcroft
, 365 F .3d 741, 745 (9th Cir. 2004)). I n affirming the d enial o f relief in D on , we ex plained:

Don’s inability to “state as to when it was that this man who was the source of him having to flee his country started to work for him” w ent to the heart o f Don’s claim b e c a u se it involved the very eve n t upon which heC U I V

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predicated his claim for asy lum. See Chebchoub v. INS
, 257 F .3d 1038, 104 3 (9th Cir. 2001) (ex p laining that inconsistencies in the d etails o f events that form the basis f or the
asy lum claim, specifically “testimony about the events leading up to [ p e titioner’s] de p a r t ure,” g o to the h eart of the claim, a nd support an adverse credibility f in d i ng ); see also Singh v. Gonzales
, 439 F. 3d 1100, 1108 (9th Cir. 2006) (affirming that “[ a] sing le

s u pported g round f

or an adverse credibility finding is sufficient if it relates to the basis for petitioner’s alleg ed f

ear of persecut i on a

nd
g oes to the heart o f the claim
, ” a nd “[ a] n inconsistency g oes to the heart o f a claim if it

concerns events central to p etitioner’s version

o f why he w as persecuted and fle d ” ) (citations, alteration
, and internal quotation marks omitted).

476 F .3d at 741–42.

IV

Cui’s a lleg ations, if true, mig ht render h im e l i g ible for
asy lu m , but h e has not demonstrated that the I J ’s credibility finding is not bas e d o n substantial evidence in the record. Rather than cite to the record, Cui p rimarily arg ues t h a t the adverse c redibility finding w as based o n misunde r s t a nding and misinterpretation of the facts and not on the totality o f the evidence. I n support o f his contention, Cui makes three leg al
arg uments. F irst, citing Damaize-Job v. I.N.S.
, 7 87 F .2d 1332, 1 337 (9th Cir. 1986), Cui arg ues that discrepancies in

an applicant’s testimony cannot be v iewed as attempts toC U I V

. H O L D E R 11

enhance his claim of persecution if t h e y h ave no bearing on his c redibility

. Second, c iting Lopez-Reyes v. I.N.S
., 79 F .3d 908, 911 (9th Cir. 1996), he asserts that an ap p licant’s testimony is n ot lackin g in credibility simply b e cause it includes details not des c r i b ed in the asy lum application. T hird, citing Maini v. I.N.S.
, 212 F .3d 1167, 1175 ( 9 t h C i r. 2000), Cui arg ues that a n I J ’ s view of what a persecuted
person should include in h is a sy lum application has n o w eig ht in an adverse credibility finding

. T h ese arg um e n t s a re unavailing

.

Cui’s challeng e to t h e adverse c redibility determination fails to show that the determina t i o n w as not supported b y substantial evidence. T h e I J ’s determination that Cui’s
account of his two-y ear stay in Mex ico and decision to return to China is in c r e d i ble g oes to the heart of his asy lum c laim. The I J reasonably found that, if Cui’s re a s o n f o r g oing to Mex ico was to escape p o litical or r elig i o u s p e rsecution b y seeking asy lum in the United States, h e s urely would have made some attempt to enter the United States during the two
y ears he resided in Mex ico. Cui offers n o ex planation for his actions consistent w ith his alleg ed fear of persecution, but his testimony does sug g est a much more likely motive for the
t r ip: to teach DZ Gong in Mex ico. Moreover, when the I J asked him to ex plain his actions in Mex ico, C u i w a s v ag ue and e v a s i v e. The I J also reasonably found that if Cui really feared persecution in China, h e would have soug ht asy lum in Mex ico, a

n d w o uld not have chosen instead to voluntarily
return to China. See Loho v. Mukasey
, 5 31 F

. 3d 1016, 1017–18 (9th Cir. 2008) ( holding that “[ i] t is well e stablished in th i s court that an alien’s h istory o f willing ly returning to his o r h er home country militates ag ainst a finding of past p e r s ecution or a well-founded fear of future persecution”). Cui’s ability to travel to Mex ico, his lack of effor t s t o t h e nC U I V

. H O L D E R

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enter the United States, a nd his voluntary decision to ret urn to China g o to the he a r t o f his asy lum claim because they undermine his assertions that he feared persecution.

Similarly
, Cui’s faulty memory of whether he h ad t o report to the p olice after his arrest in 1999 and h is vag ue, if
not inconsistent, statements about w hether he had to report to the police w hen h e returned to China in 2002 are problematic. I t is reasonable to e x pect an individual to remember whether he had been o rdered to r eport to the police on a weekly basis. F urthermore, the lack o f any corroborative evidence of Cui’s
arrests and beating s or of the arrests and beating s of other DZ Gong members is especially damag ing where, as here, the “trier of f a ct either does not believe the a pplicant or does not know what to believe.” 2 Sidhu , 220 F .3d at 190.

I n sum, althoug h Cui’s story , if true, mig ht show persecution, the inconsistencies noted b y the B I A are such that we are not compelled to accept it. Cui’s inconsistent
statements concerning police surveillance, his failure to

ex p lain why he did not seek to enter the United States during his two-y ear-stay in Mex ico, a nd his voluntary re t u r n to China from Mex ico, provide an a dequate basis for the adverse credibility finding

. See Jibril
, 423 F .3d at 1135 (holding that
t e s t imony that is implausible in lig h t of the backg r ound evidence can support a n adverse credibility determination). Moreover, they g o to the heart o f Cui’s asy lum claim because

2 Neith er o f Cu i’ s w itn esses, Master Yu an d Mr. Sh u an g Xi, h a d an y p erso n al k

n o w led g e o f C u i’ s arrests. Neith er h ad seen Cu i b etw een th e

su m m er o f 1 9 9 3 an d 2 0 0 3

.C U I V

. H O L D E R 13

they undermine h is contention that he had to “escape” from China. The petition is DENIED

. 3

3 T h e B IA den ied Cu i’ s req u ests f o r asy lu m , w ith h o ld in g o f rem o v al

an d relief u

n d er th e CA T . B ecau s e Cu i d o es n o t ad d ress w ith h o l d i n g o r C AT r e l i e f i n h is b rief

, h e w aiv ed an y o bj ectio n s to th e d en i al o f th ese req u ests. S

ee McMilla n v. Un ited S t a tes , 1 1 2 F.3 d 1 0 4 0, 1 0 4 7 (9 th Cir. 1 9 9 7 ). In an y ev en t, w

h ere, as h ere, th e claim f

o r w ith h o ld in g is b ased on th e sam e f

acts as th e claim f

o r asy lu m , th e f

ailu re to estab lis h e l i g i b i lity f o r asy l u m resu lts in th e f

ailu re to d em on strate elig ib ility f o r w ith h old in g

. S ee Ha lim v. I.N.S
., 3 5 8 F .3 d 1 1 2 8
, 1 13 2 (9 th Cir. 2 00 4 ). W h ile a p etitio n er can d em o n strate elig ib ility f o r CA T relief d esp ite an ad v erse cred ib ili t y fi n d i n g if “ th e State Dep artm en t rep o rts, stan d in g alo n e,

co m pel[] th e co n clu sio n th at [p etitio n e r ] i s m ore lik ely t h an n o t to b e to rtu red ” u

p o n retu rn , th e State Dep artm en t rep o rts in th is case d o n o t

co m pel su ch a co n clu sio n

. S

ee Dh ita l v. M

u ka sey , 5 3 2 F.3 d 1 04 4 , 1 0 5 1 (9 th Cir. 2 00 8 ) (q u o tin g Alma g h za r , 4 5 7 F.3 d at 9 2 2 –2 3 ).