# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 10, 2008

Decided June 27, 2008

Before

RICHARD A. POSNER, Circuit Judge

JOHN L. COFFEY, Circuit Judge

JOEL M. FLAUM, Circuit Judge

No. 07

‐ 2939

ZONG XIU OU YANG,

Petitioner

,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States,

Respondent

. Petition for Review of an Order of the

Board of Immigration Appeals.

No. A96

‐ 421

‐ 414

O R D E R

Facing removal proceedings after he illegally crossed the Canadian border, Zong Xiu

Ou Yang applied for asylum, withholding of removal, and relief under the Convention

Against Torture, claiming that he fears arrest and torture in his native China for his

participation in a religious group. The immigration judge (“IJ”) denied all forms of relief,

finding Ou Yang not credible based on inconsistencies between his testimony at the removal

hearing and his written application for relief. The Board of Immigration Appeals (“BIA”)

upheld the IJ’s decision, and Ou Yang petitions for review. Because the IJ’s adverse NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07

‐ 2939 Page 2

credibility finding is supported by substantial evidence, we deny the petition for review.

Background

At an initial hearing on July 14, 2004, Ou Yang, who was then nineteen years old,

presented his application for relief. In that application, he stated that he sought asylum on

account of his participation in what he characterized as the religious group known as

Iron Fan. Ou Yang reported that, because he has been a member of Iron Fan since May

2003, he was placed on a Chinese government “black list,” and that Chinese police had

pursued him on two occasions. Ou Yang stated that other members of Iron Fan had been

arrested, imprisoned, and tortured because of their religious beliefs and that, even though

he no longer practiced Iron Fan, he feared he would meet the same fate should he return to

China. He also asserted that he had never been arrested or detained in a country other than

the United States. Ou Yang’s attorney, who like Ou Yang speaks Mandarin, assisted him in

translating, preparing and filing his application. Ou Yang did not, however, submit a

narrative statement in support of his application.

The IJ granted an 18

‐ month continuance to permit Ou Yang to gather evidence in

support of his claim, although he ultimately supplied no evidence beyond his own

testimony. On January 6, 2006, the IJ held a final removal hearing. Before Ou Yang

testified, his attorney told the IJ that, contrary to Ou Yang’s statements in his written asylum

application, Ou Yang now intended to testify that Chinese police had detained and tortured

him for two days in 2003. The IJ observed that Ou Yang’s attorney had presumably done “a

thorough job” in preparing the application and warned Ou Yang that the contradiction

between his written application and his testimony would call his credibility into question.

Ou Yang proceeded to testify and told the IJ that he left China illegally because he

was a member of Iron Fan. Iron Fan, according to Ou Yang, is both a religious organization

and a political group critical of communism and the Chinese government. Ou Yang

explained that Iron Fan is “against anything that’s unfair to the people” and that its guiding

principle is to “resolve right away” all “unfair behaviors in the world.” Ou Yang stated that

Iron Fan is a local group found only in Fujian Province and his attorney conceded that he

had been unable to find any mention of Iron Fan in the Department of State’s official reports

on China.

Ou Yang next described his involvement with Iron Fan. Although he stated in his

asylum application that he had joined the group in May 2003, he testified that he had

practiced Iron Fan since May 30, 2002, the day it was founded. That same day he attended aNo. 07

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large Iron Fan gathering where the religion’s founder, “Lin,” criticized the Chinese

government’s persecution of a different religious group, Falun Gong, and denounced the

government’s attempts to control religious practice. The local police broke up the gathering

and arrested numerous attendees, though Ou Yang stated that he fled to avoid arrest. Ou

Yang did not have any documentation of his Iron Fan participation, although he said that he

formally joined the group by signing his name to a list of those who had attended the May

30 gathering.

After that gathering, Ou Yang’s parents, worried about his safety, moved Ou Yang

from their house to his aunt’s home, where he stayed for over one month. Upon returning

to his parents’ home in July 2002, he learned that the Iron Fan leader had been arrested, but

nonetheless he continued to attend Iron Fan classes once a week. Ou Yang testified that he

also participated in three more Iron Fan gatherings, which he described as “a lot of people

[who] would demonstrate in front of a government facility.” At a gathering on May 20,

2003, Chinese police allegedly arrested Ou Yang and ten more of the Iron Fan practitioners

who were protesting the Chinese government’s over

‐ taxing of farmers. According to

Ou Yang, the officers took him to a police station approximately one hour away, where they

severely beat him and held him for two days. Ou Yang’s parents posted bail, and Ou Yang

was permitted to leave police custody so long as he agreed to report to the police station in

his town every week. Ou Yang testified that the police did not provide him with any

documentation of his detention or give his parents a receipt for the bail they had posted.

Ou Yang also explained that he did not mention the arrest, detention, and beating in his

asylum application because he “forgot” to tell his attorney and only remembered to reveal

that information later.

Ou Yang testified that after his release from jail his parents took him to a hospital

where a doctor told him that his injuries were mainly internal. Ou Yang explained that the

police had placed a book against him “as a cover” and then beat him through the book to

avoid leaving external bruises. Ou Yang also stated that the police had handcuffed him to a

pole and taken turns beating him, first with a book, and then with closed fists when he still

refused to end his involvement with Iron Fan. Ou Yang admitted that while he was bruised

and had swollen eyes resulting from the beating, he suffered no internal or external

bleeding nor did he incur any organ damage. Ou Yang claimed that the hospital refused to

provide him with records of his treatment because the doctor knew his injuries were caused

by the police.

After that, Ou Yang said, he reported weekly to the police as required, and during

those visits the police examined him to assess whether his injuries had healed sufficiently in

order that he could appear in court to face criminal charges. Ou Yang maintained that theNo. 07

‐ 2939 Page 4

police had placed his name on a “black list” composed of people who attended the

inaugural Iron Fan gathering in May 2002 and that Chinese officials had issued warrants for

the arrest of everyone on the “black list.” Ou Yang explained that, although this list was

compiled in May 2002, he had managed to avoid arrest until 2003 because he was in hiding

when the police came to his village to make arrests in 2002.

Ou Yang further explained that his parents had agreed to pay $40,000 to smuggle

him to the United States after he learned that a friend and fellow member of Iron Fan had

been arrested and sentenced to twenty years in prison. Ou Yang left China on July 15, 2003,

and arrived in the United States about two months later. The petitioner testified that he

fears he will be beaten and imprisoned like other Iron Fan practitioners if he is forced to

return to China. Ou Yang also testified, however, that he believes Iron Fan no longer exists.

Ou Yang submitted no documentary evidence in support of his claim save for his Chinese

birth certificate.

After hearing testimony and reviewing the sparse documentary record, the IJ

concluded that Ou Yang was not credible and denied relief. The IJ observed that Ou Yang’s

testimony regarding his detention and beating by Chinese police was inconsistent with his

written application, and noted that he has failed to explain those inconsistencies. The IJ also

noted that, although Ou Yang had over a year between filing his application and his final

removal hearing to gather evidence, he had provided virtually no evidence to corroborate

his testimony. The IJ bolstered his adverse credibility determination by pointing to several

discrepancies in Ou Yang’s testimony compared to his application. For instance, although

Ou Yang stated in his application that he joined Iron Fan in May 2003, he then testified that

he joined the religion in May 2002 and that the 2003 date was a typographical error. More

importantly, Ou Yang omitted entirely from his written application the key event in his

testimony—that he was purportedly arrested, detained, and beaten by Chinese police—and

rather with his lawyer’s assistance checked a box on his application stating that he had never

been arrested or detained.

The IJ next ruled that, even if Ou Yang’s testimony regarding his detention was

credible, the mistreatment he described did not rise to the level of persecution because he

was detained only briefly and not seriously injured. The IJ also noted that Ou Yang had not

shown that he was detained and beaten because of his religion. Moreover, the IJ concluded

that Ou Yang had not established an objectively reasonable fear of future persecution

because he failed to corroborate his speculation that Chinese police had issued a warrant for

his arrest or that if he returned he would face criminal charges for his participation in Iron

Fan demonstrations. The IJ therefore denied Ou Yang’s applications for relief and ordered

him removed to China.No. 07

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1 Because Ou Yang filed his application for relief on July 14, 2004, our credibility

analysis is unaffected by the new standard of review for credibility determinations applied

to claims for asylum made after May 11, 2005. See 8 U.S.C. § 1158(b)(1)(B)(iii); Mitondo v.

Mukasey

, 523 F.3d 784, 787

‐ 88 (7th Cir. 2008). The BIA dismissed Yang’s appeal in a single

‐ member decision. The BIA upheld the

IJ’s adverse credibility determination, highlighting the discrepancies between Ou Yang’s

written application and his hearing testimony. The BIA also concluded that Ou Yang had

not provided sufficient corroboration of his claim to overcome the significant

inconsistencies in his testimony and therefore dismissed his appeal.

Analysis

Ou Yang argues that the IJ’s adverse credibility finding is not supported by

substantial evidence. He maintains that he simply omitted from his written application

some facts drawn out in his testimony, that omissions are not the same as inconsistencies,

and that he adequately explained any remaining discrepancies. Ou Yang also contends that

the IJ erred in weighing the contents of his application as evidence and in grounding his

decision on the dearth of documentary evidence to corroborate petitioner’s testimony.

Finally, Ou Yang argues that the IJ should have found that Ou Yang’s reports of beatings

rose to the level of persecution.

Where, as here, the BIA has dismissed an appeal in a single

‐ member decision, see 8

C.F.R. § 1003.1(e)(5), we review both the IJ’s decision and any supplemental reasoning of the

BIA. Gutnik v. Gonzales

, 469 F.3d 683, 685 (7th Cir. 2006). We will uphold the IJ’s decision so

long as it is supported by substantial evidence, and will overturn it “only if the record

compels a contrary result.” Mema v. Gonzales

, 474 F.3d 412, 416 (7th Cir. 2007)

. An IJ’s

credibility determination must be supported by “‘specific, cogent reasons that bear a

legitimate nexus to the finding.’” Feto v. Gonzales

, 433 F.3d 907, 911 (7th Cir. 2006) (quoting

Jamal

‐ Daoud v. Gonzales

, 403 F.3d 918, 922 (7th Cir. 2005)). Although immaterial

discrepancies in an asylum applicant’s testimony cannot support an adverse credibility

finding, see Adepke v. Gonzales

, 480 F.3d 525, 530

‐ 31 (7th Cir. 2007), we will not overturn an

IJ’s credibility determination simply because the evidence might support an alternate

finding, Kllokoqi v. Gonzales

, 439 F.3d 336, 341 (7th Cir. 2005). Credibility determinations

should be disturbed, therefore, only under “‘extraordinary circumstances.’” Song Wang v.

Keisler

, 505 F.3d 615, 621 (7th Cir. 2007) (quoting Shmyhelskyy v. Gonzales, 477 F.3d 474, 479

(7th Cir. 2007)). 1

In order to have established his claim for asylum, Ou Yang bore the burden of

proving that he cannot return to China based on a well

‐ founded fear of persecution onNo. 07

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account of his religion. See Soumare v. Mukasey

, 525 F.3d 547, 552 (7th Cir. 2008). If

petitioner Yang did not meet his burden of proof for his asylum claim, then it necessarily

follows that he did not make the more

‐ stringent showings required to succeed on his

requests for withholding of removal and relief under the Convention Against Torture. See

Shmyhelskyy v. Gonzales, 477 F.3d 474, 481

‐ 82 (7th Cir. 2007).

The petitioner first contests the IJ’s assessment of his credibility. He quibbles with

the IJ’s finding that his credibility was undermined by the discrepancy between his

application and his testimony regarding the precise date on which he joined Iron Fan. But

Ou Yang has not explained why the crux of the IJ’s credibility determination—that in his

written application he stated he had never been arrested, while at the hearing he described

in detail his arrest by Chinese police—is wrong. See Shmyhelskyy

, 477 F.3d at 481 (upholding

IJ’s adverse credibility determination where applicant testified in great detail about beating

while in detention but made no mention of beating in asylum application); Korniejew v.

Ashcroft

, 371 F.3d 377, 386 (7th Cir. 2004) (upholding adverse credibility

determination where petitioner described kidnaping in asylum application but “forgot” to

mention it at hearing). Ou Yang’s only attempt to resolve this contradiction misrepresents

the record by ignoring altogether his application statement that he had never been arrested

and instead treating the discrepancy as a mere omission. Ou Yang also contends that the IJ

improperly relied on the written application as evidence, but IJs routinely assess credibility

by comparing hearing testimony to applications for relief. See, e.g, Soumare

, 525 F.3d at 552

‐

53; Song Wang

, 505 F.3d at 621; Capric v. Ashcroft

, 355 F.3d 1075, 1090

‐ 91 (7th Cir. 2004). The

IJ reasonably found that Ou Yang’s explanation for his inconsistent testimony—that before

he filed his asylum application he simply forgot to tell his attorney that he had been

detained and tortured by Chinese police for two days—was “hardly believable,” and the

adverse credibility determination is therefore supported by substantial evidence. Capric

,

355 F.3d at 1091.

Ou Yang also claims that the IJ erred in requiring additional evidence to corroborate

his testimony. Although Ou Yang correctly observes that a lack of documentary evidence is

not alone a sufficient basis for rejecting an alien’s asylum application, see Lin v. Ashcroft

, 385

F.3d 748, 756 (7th Cir. 2004), we have routinely held that corroborating evidence is

“essential” where an alien’s testimony is otherwise not credible. Uwase v. Ashcroft

, 349 F.3d

1039, 1041 (7th Cir. 2003); see also Soumare

, 525 F.3d at 553; Eke v. Mukasey

, 512 F.3d 372, 381

(7th Cir. 2008). Because Ou Yang’s testimony was not credible and he failed to provide a

convincing explanation for the discrepancies between his testimony and his asylum

application, he needed to supply evidence corroborating his testimony in order to carry his

burden of proof. See Aung v. Gonzales

, 495 F.3d 742, 746 (7th Cir. 2007); Sina v. Gonzales

, 476

F.3d 459, 462 (7th Cir. 2007). Ou Yang, though, did not present any corroborating evidenceNo. 07

‐ 2939 Page 7

at all aside from an irrelevant Chinese birth certificate. The IJ noted that it was reasonable

to expect Ou Yang to provide some documentation, such as Iron Fan membership papers, a

record of his arrest, a bail receipt, medical records, an arrest warrant, or affidavits attesting

to Iron Fan’s existence and Ou Yang’s arrest. Although Ou Yang attempted to offer

justifications for why he could not obtain some of these documents, he fails to explain why

he could not have at least submitted affidavits from his parents or other members of Iron

Fan. His failure to present any corroborative evidence at all cannot satisfy “the high bar

necessary to surmount an adverse credibility decision.” Shmyhelskyy

, 477 F.3d at 481.

Conclusion

Because the IJ’s adverse credibility determination is on its own sufficient to doom Ou

Yang’s petition, we need not address his argument that he would likely face persecution if

he returned to China. We therefore deny his petition.