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Immigration - credibility - persecution.

Byline: Tom Egan

Where the petitioner, a native of China, was denied asylum, withholding of removal, and protection under the Convention Against Torture, the decision must be upheld despite his contentions that (1) the immigration judge clearly erred in finding him not credible, (2) he independently established a well-founded fear of persecution and (3) no substantial evidence supported the rejection of his CAT claim.

" ... The crux of (petitioner Xia Jing] Ye's petition is his challenge to the IJ's determination that he was not credible, and the BIA's acceptance of that adverse credibility determination. Ye also argues that, even if the adverse credibility determination stands, he established a well-founded fear of future persecution. ...

"There was substantial evidence supporting the IJ's adverse credibility determination and the BIA's acceptance of it. In supporting the determination, the IJ and BIA relied heavily on the (Department of Homeland Security (DHS)] Interview and the fact that Ye omitted any mention whatsoever of past persecution, a fear of future persecution, or events that might imply such a fear despite the fact that he received a direct instruction soliciting such information and a warning that he might not have the opportunity to disclose his fear later. ...

"The IJ and BIA did not err in finding that Ye's explanations for the inconsistency between the DHS Interview and later claims, which included nerves, lack of understanding, and the difficult journey, were insufficiently compelling. ...

"Ye next argues that the border interview was unreliable and urges us to assess its reliability under the Second Circuit standard as set forth in Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004). This Circuit does not require IJs to undertake an inquiry into the reliability of initial interviews with Border Patrol agents using specifically enumerated factors. ... Ye has failed to persuade us that the current case law in this Circuit and the applicable statutes provide insufficient guidance on making credibility determinations. ... For all the reasons already stated, including the confirmatory statements by Ye during his testimony before the IJ, the BIA's reliance on the Sworn Statement and Jurat was reasonable and supported by substantial evidence. Thus, substantial evidence supported the adverse credibility determination. Given that Ye's claim of past persecution relied on his credibility, the BIA also did not err in concluding that Ye failed to establish his eligibility for asylum based on past persecution.

"Ye claims that, regardless of any adverse credibility finding, he nonetheless adequately established a well-founded fear of future persecution. The argument runs as follows: because there is a pattern or practice of persecuting Christians in China and because Ye is Christian, Ye had a well-founded fear of future persecution. The BIA noted that Ye presented this argument for the first time before the BIA. He did not argue before the IJ that, independent of his claims of past persecution, he had a well-founded fear of future persecution because there was a pattern or practice of persecuting Christians in China. Thus, the BIA did not err in concluding that the argument was not exhausted. ...

"Nor did the BIA err in finding that the claim lacked merit, in any event. ... We have repeatedly recognized that the BIA is justified in concluding that there is no well-founded fear of future persecution based on a State Department report alone, when no connection is established between the incidents in the report and the petitioner's specific circumstances. ... Thus, because he is unable to establish either past persecution or a well-founded fear of future persecution, Ye's asylum claim fails."

Ye Xian Jing v. Lynch (Lawyers Weekly No. 01-002-17) (16 pages) (Burroughs, J., of the District of Massachusetts, sitting by designation) (1st Circuit) Gerald Karikari and Karikari & Associates on brief for the petitioner; Benjamin C. Mizer, Emily Anne Radford and Aric A. Anderson on brief for the respondent (Docket No. 16-1290) (Jan. 4, 2017).

Click here for the full-text opinion.


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Author:Egan, Tom
Publication:Rhode Island Lawyers Weekly
Date:Jan 6, 2017
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