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Chinese Citizen Denied Asylum in U.S. for Application Inconsistencies

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By Jonathan R. Tung, Esq. on January 14, 2016 12:50 PM

A Chinese national was denied asylum despite his claims of persecution in China for his Catholic beliefs. The denial of asylum was affirmed at the Court of Appeals for the Tenth Circuit for inconsistencies he presented first before an Immigration Judge.

According to the Immigration Judge, Mr. Dao Kai He failed to "establish his credibility" because he provided multiple answers when asked to reconcile inconsistencies.

Catholic Persecution in the PRC

Mr. He entered into the United States illegally sometime in 2006, failing to get admitted or paroled. The Department of Homeland security issued He a Notice to Appear before an IJ to respond to charges that he was removable under federal law. When he appeared, he conceded his removability under a different federal law, the Immigration and Nationality Act sec. 237(a)(1)(B).

He applied for asylum, withholding of removal, and protection under the Convention Against Torture. To support his CAT (and other petitioned for relief), he testified that he had been a member of the Catholic Church as a child in China. He claimed that he attended church until the 2005 when the Communist Party forcibly dissolved his church on fears of insurrection.

Supposedly, He clandestinely continued to attend secret meetings at the homes of members who refused to renounce their faith. Mr. He further claimed that he had been arrested, interrogated, detained for 15 days, and was beaten by Chinese authorities for subversion.

He Dooms Himself

He presented two pieces of physical evidence to bolster his story. One was a letter written by his father that his son was detained for 10 days. Another letter was allegedly written by the nun of the St. Thomas Aquinas Church in Monterey Park, California. The nun's letters claimed that He had been in attendance of Mass since 2007.

Unfortunately, He testified before the IJ that he had been living in Utah since 2009. He also gave two inconsistent answers explaining why his father's letter did not corroborate his oral testimony that he had been detained for 15 days. He first claimed that he had told his father that he had been detained for "ten-something" days, and then he claimed his father was "getting old." As for the geographic discrepancy between Monterey Park, California and Utah? The IJ asked He three separate times for an explanation and He gave different answers for the same question.

Even assuming, arguendo, that language nuances might make He's "ten-something" story possible, his multiple stories regarding his alleged trips to California could stretched all credulity.

IJ denial, BIA affirmation, Circuit Affirmation

The IJ denied He's petition in full because it concluded that He and his proffered evidence was unreliable. Not only did He's father not present any indication of impaired memory, the IJ found it highly dubious that He would make bi-monthly weekend trips to California from Utah to attend Church -- particularly on a waiter's salary.

The Board of Immigration appeals dismissed He's appeal because it found that the IJ's ruling was not "clearly erroneous" and that the IJ's concerns were "supported by the record."

The circuit applied standard review procedure, giving deference to the BIA's finding unless the record demonstrated that "any reasonable adjudicator would be compelled to conclude to the contrary." This language was from Ismaiel v. Mukasey. Here, that was not the case.

Under the substantial evidence test outlined in Uanreroro v. Gonzales, courts must give specific and cogent reasons for disbelieving petitioner testimony. More important for He's case, the IJ was to base its adverse finding against him based on "any inconsistency between the applicant's statements and other evidence in the record."

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