Ying Chen v. Eric Holder, Jr.

NOT RECOMMENDED FOR PUBLICATION

File Name: 14a0698n.06

No. 13-3547

FILED

UNITED STATES COURT OF APPEALS Sep 08, 2014

FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

__________________________________ )

)

YING CHEN, )

)

Petitioner, )

)

V. ) ON APPEAL FROM THE BOARD OF

) IMMIGRATION APPEALS

ERIC HOLDER, JR., Attorney General )

of the United States, ) OPINION

)

Respondent. )

___________________________________ )

Before: ROGERS and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.*

VAN TATENHOVE, District Judge.

Petitioner Ying Chen is a citizen of China who came to the United States in November,

2008. A few months later, Chen filed an application for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). Chen now petitions this Court for

review of the decision of the Board of Immigration Appeals (BIA or Board), which affirmed the

immigration judge’s denial of her application. Chen argues that both the immigration judge and

the BIA erred in finding that her testimony lacked credibility. Chen further contends that she

met her burden of proof for establishing her eligibility for asylum, or for protection under the

CAT, because she sufficiently demonstrated that she had suffered past persecution in China on

account of her involvement with Falun Gong. However, because the Board’s finding of adverse

*

The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky,

sitting by designation.

credibility was supported by substantial evidence, we must DENY REVIEW.

I

Twenty-seven-year-old Petitioner Ying Chen was born and raised in the Fujian Province

of China. Chen left China in the fall of 2008 to come to the United States. In December, 2008,

the Department of Homeland Security served Chen with a Notice to Appear, alleging that she

attempted to enter the United States without valid entry documents during the previous month.

Chen successfully moved to change venue to the immigration court in Louisville, Kentucky,

because her sponsor, who was also her aunt, lived in Kentucky. In May, 2009, Chen applied for

political asylum, withholding of removal, and protection under the Convention Against Torture

(CAT). In her application, Chen claims that she left China on October 30, 2008, with the help of

smugglers, and came to the United States seeking asylum because she had been “persecuted by

the Chinese government” due to her involvement with Falun Gong.1 Chen also claims that if she

returns to China she will be put in jail, tortured, and fined for leaving.

Immigration Judge Rebecca Holt held a hearing on June 14, 2011, to decide the merits of

Chen’s claims. Chen’s application alleges that her mother had begun practicing Falun Gong in

2007 in order to improve her health, and that her mother eventually taught Chen’s father to

practice Falun Gong as well. Chen testified that she herself never practiced Falun Gong, nor

does she currently practice it in the United States. At the hearing, Chen answered further

questions about the sole incident discussed in her application for asylum. According to her

testimony, Chen was at home with her parents on March 8, 2008, when she saw two police

officers come to the door. Chen testified that her parents were practicing Falun Gong with one

1

Falun Gong is a “controversial Chinese spiritual movement” founded in 1992 by Li Hongzhi that draws

from various Asian religions such as Buddhism, Taoism, and Confucianism and involves ritual exercise “to obtain

mental and spiritual renewal.” “Falun Gong,” Encyclopaedia Britannica, Encyclopaedia Britanica Online Academic

Edition, http://www.britannica.com/EBchecked/topic/724793/Falun-Gong (last visited Aug. 4, 2014). The Chinese

government views the movement as a cult and has actively sought to suppress it in recent years. Id.

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of her uncles and an aunt, and that she let them all escape out the back door before answering the

front door. When Chen opened the door, the police informed her that they suspected that

someone in her home had been practicing Falun Gong, and they proceeded to search the house.

Upon finding a Falun Gong video tape in the VCR machine, the police asked Chen where it

came from. Chen said she told them that she found it outside on the street, but the police did not

believe her and took her to the police station, where she was interrogated. According to Chen,

the police asked her questions about where the video came from, who organized Falun Gong

activities, and who she knew that was associated with Falun Gong. Although Chen told them she

did not know anything about Falun Gong and did not practice it, she claimed that the police did

not believe her and detained her anyway.

Upon further questioning about her detention, Chen testified that during her interrogation

at the police station, the police hit her and kicked her when she did not answer their questions.

Chen claimed that she lost consciousness from the beating and that when she woke up, she found

herself “in a very small room.” After she woke up, the police interrogated her again. Chen

alleged that she was detained at the police station for one week, during which the police

interrogated her four times, and beat her at least three times. Upon cross-examination, Chen

described her injuries from the alleged beatings as consisting of bruises and “soft tissue injuries”

on her arms and neck, but conceded that she did not receive medical treatment.

Chen further testified that her family had to pay a fine of 10,000 RMB in order to obtain

her release. Chen alleged that, as a condition of her release, she was required to report to the

local police office once every week and to submit a list of all known Falun Gong associates

within the next three months. Chen testified that the police told her that if she did not comply

with their demands, they would arrest and imprison her. Chen claimed that after she was

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released, she reported back to the police station on a weekly basis as required about ten times,

but that as the three-month deadline approached, she went to live with an aunt in Fuzhou City in

order to avoid the police because she had no intention of giving them the list of Falun Gong

participants that would necessarily include her parents. Chen claimed that while she was staying

with her aunt, she contacted her parents and discussed with them her fear of being arrested if she

returned home. According to Chen, her parents told her that the police had come to their home

to search for her several times.

Chen testified that she was able to use her own passport to leave China, and that on her

way to the United States, she departed from the Hong Kong airport and stopped in Paris, France

for a brief layover before arriving in Mexico. She claimed that she did not go to Thailand,

although the government attorney pointed out that her passport contained a visa for Thailand.

Chen’s passport contains no entry stamps for France, Mexico, or any other country. No one

other than Chen testified at the hearing before the immigration judge.

After the hearing, Judge Holt issued her decision, denying Chen’s application for asylum,

withholding of removal, and protection under the CAT. The immigration judge (IJ) rejected

Chen’s claims because she found that Chen’s testimony was not credible and lacked

corroboration. In particular, the IJ determined that Chen’s testimony contains several

inconsistencies and also lacks detail concerning the place where she was detained, the types of

injuries she allegedly suffered, the circumstances of the alleged beatings, and the number of

police officers who purportedly interrogated and beat her. The IJ further noted that Chen’s

testimony about leaving China and entering the United States did not explain why her passport

lacked entry stamps for France or Mexico, nor how she was able to leave China while on the

verge of being arrested by the Chinese police. Accordingly, the IJ concluded that Chen does not

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carry her burden of establishing a well-founded fear of persecution upon returning to China, and

that, even if Chen’s testimony were credible, the alleged treatment does not rise to the level of

past persecution.

The BIA affirmed the IJ’s decision on the issues of asylum, withholding of removal, and

withholding of removal under the CAT. In response to Chen’s argument that the IJ erred in

determining she was not credible, the Board found that the IJ’s adverse credibility determination

was adequately supported by specific, cogent reasons including lack of detail about Chen’s

interactions with the police, inconsistencies between Chen’s testimony and the documentary

evidence which Chen did not reconcile on appeal, and vagueness in her testimony about her

passport that Chen did not sufficiently explain. The Board rejected Chen’s argument that the IJ

unreasonably required more detail about the alleged beatings because she lost consciousness

during one beating, explaining that Chen did not claim to have been unconscious during the two

additional alleged beatings, yet still did not provide sufficient detail about them. The Board also

found that Chen did not establish her claims by presenting corroborative evidence independent of

her own testimony, nor did she adequately explain why such corroborative evidence was not

reasonably available. Finally, the Board determined that it was unnecessary to reach Chen’s

additional contentions because of its decision to affirm the IJ’s adverse credibility determination.

Chen now petitions this Court to review the Board’s determination.

II

This Court has exclusive jurisdiction to review a final order of deportation or removal by

the Board of Immigration Appeals pursuant to 8 U.S.C. § 1252(a)(1). The parties do not dispute

that Chen exhausted her remedies by appealing the IJ’s decision to the Board. The Board

dismissed Chen’s appeal on April 3, 2013, which became a final order of removal. The parties

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also do not dispute that Chen’s petition for review of that decision was timely and that venue is

proper.

When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, this court

“directly reviews the decision of the IJ while considering the additional comment made by the

BIA.” Zhao v. Holder, 569 F.3d 238, 246-47 (6th Cir. 2009) (quoting Mapouya v. Gonzales,

487 F.3d 396, 405 (6th Cir. 2007)). We review legal conclusions de novo, Zhao, 569 F.3d at

246, but defer to reasonable agency interpretations of the INA. INS v. Aguirre-Aguirre, 526 U.S.

415, 424 (1999); Patel v. Gonzalez, 432 F.3d 685, 692 (6th Cir. 2005). Factual findings are

reviewed for substantial evidence. Zhao, 569 F.3d at 246. Under the deferential substantial

evidence standard, the IJ’s findings of fact are conclusive “[u]nless any reasonable adjudicator

would be compelled to conclude to the contrary.” Id. at 247 (internal citation and quotation

marks omitted); 8 U.S.C. § 1252(b)(4)(B). “Thus, the [Board’s] determination should be upheld

unless evidence not only supports a contrary conclusion but indeed compels it.” Id. We may not

reverse the agency’s determination simply because we would have decided the matter

differently. Id.

A

On appeal to this Court, Chen asserts that the BIA’s and the IJ’s adverse credibility

finding is “clearly erroneous” because their conclusions about Chen’s testimony are “contrary to

the evidentiary record” and based on speculation and conjecture. Second, Chen claims that the

BIA and the IJ erred by unreasonably expecting her to provide corroborating evidence. Finally,

Chen contends that she has met her burden for establishing withholding of removal and

protection under the CAT by demonstrating both past persecution and a well-founded fear of

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future persecution upon her return to China. Because the BIA’s and the IJ’s findings are

supported by substantial evidence, however, we must uphold the BIA’s decision.

An alien seeking asylum has the burden of demonstrating that she is a “refugee” by

showing that she is “unable or unwilling to return to” her country because she has suffered either

past persecution or has “a well-founded fear of persecution” in the future, because of the

applicant’s “race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42); see also 8 U.S.C. § 1158(b)(1)(B); Singh v. Holder, No. 13-

3993, 2014 WL 1424502, at *6 (6th Cir. Apr. 15, 2014). To succeed, the applicant must

demonstrate “a well-founded fear of persecution” upon return to her country of origin, which has

“both a subjective and an objective component” – the alien must subjectively fear persecution

upon return to her country, and she must also demonstrate that such fear is objectively

reasonable. Perkovic v. I.N.S., 33 F.3d 615, 620-21 (6th Cir. 1994) (citing I.N.S. v. Cardoza-

Fonseca, 480 U.S. 421, 431 (1987)); see also Gilaj v. Gonzales, 408 F.3d 275, 283-84 (6th Cir.

2005) (citing Perkovic, 33 F.3d at 620). The determination of whether the applicant qualifies for

asylum is within the discretion of the Attorney General. 8 U.S.C. § 1158(b)(1)(A); Cardoza-

Fonseca, 480 U.S. at 423. The applicant may meet her burden of proof through her own

testimony without corroboration, but only if the trier of fact is satisfied that the applicant’s

testimony “is credible, is persuasive, and refers to specific facts” that sufficiently demonstrate

her refugee status. 8 U.S.C. § 1158(b)(1)(B)(ii).

To establish a claim for withholding of removal, an alien must demonstrate that her “life

or freedom would be threatened in the country directed for removal on account of his [or her]

race, religion, nationality, membership in a particular social group, or political opinion.” Zhao,

569 F.3d at 245 (citing INS v. Stevic, 467 U.S. 407 (1984)); 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R.

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§ 1208.16(b). This standard to qualify for withholding of removal, however, “is even higher”

than the standard for asylum, requiring the alien “to demonstrate a clear probability that she

would more likely than not be subject to persecution” if she is forced to return to her country.

El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009); see also Liti v. Gonzales, 411 F.3d 631,

640-41 (6th Cir. 2005) (quoting Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004)). If the

applicant establishes past persecution on one of the five grounds enumerated above, then future

persecution is presumed. 8 C.F.R. § 1208.16(b)(1)(i). If the applicant cannot establish past

persecution, then she bears the burden of establishing that it is more likely than not that she

would suffer a future threat to her life or freedom if returned to the proposed country of removal.

8 C.F.R. § 1208.16(b)(2).

1

Clearly, an applicant cannot meet the above standard if her testimony lacks credibility.

Here, Chen primarily contends that the BIA and the IJ erred by determining that her testimony

was not credible. When a final order of removal has been issued, “this court reviews factual

findings, including credibility determinations, under a substantial evidence standard,” which is

highly deferential. Abdallahi v. Holder, 690 F.3d 467, 472 (6th Cir. 2012). Accordingly, this

court will uphold BIA and IJ determinations of credibility as long as the determination “is

supported by reasonable, substantial, and probative evidence.” Abdallahi, 690 F.3d at 472

(citation omitted). Since the passage of the REAL ID Act of 2005, such credibility

determinations are made by looking at the “totality of the circumstances,” and “taking into

account ‘all relevant factors,’” including:

the demeanor, candor, or responsiveness of the applicant or witness, the inherent

plausibility of the applicant’s or witness’s account, the consistency between the

applicant’s or witness’s written and oral statements, . . . the internal consistency

of each such statement, the consistency of such statements with other evidence of

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record (including the reports of the Department of State on country conditions),

and any inaccuracies or falsehoods in such statements, without regard to whether

an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's

claim, or any other relevant factor.

El-Moussa, 569 F.3d at 256 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)) (emphasis in original). This

same credibility standard applies to all three of Chen’s claims – for asylum, withholding of

removal, and for relief under the CAT. Id. at 256.2

Chen argues on appeal that the IJ’s credibility determination should be overturned

because it was based on factors that did not go to the heart of her claim.3 Since the REAL ID

Act was passed in 2005, however, an immigration judge may base his or her credibility findings

on any inconsistency or inaccuracy, regardless of whether such inconsistencies or inaccuracies

“go[] to the heart of the applicant’s claim.” El-Moussa, 569 F.3d at 256 (quoting 8 U.S.C.

§ 1158(b)(1)(B)(iii)); see also Masiko v. Holder, No. 13-3801, 2014 WL 1424497, at *4 (6th Cir.

Apr. 14, 2014) (rejecting petitioner’s argument that the IJ’s adverse credibility finding should be

overturned for citing discrepancies in applicant’s testimony that were not essential to his asylum

claim because the REAL ID Act allows an adverse credibility finding to rest on any

inconsistency regardless of whether it goes to the heart of an applicant’s claim). The

immigration judge should be given “substantial leeway” in determining credibility, and “[her]

on-the-scene credibility determination, when affirmed by the Board, must be upheld if

2

“The REAL ID Act of 2005 governs credibility determinations concerning applications for asylum,

withholding of removal, and protection under the CAT filed on or after May 11, 2005,” and thus applies in this case.

Gonzales-Lopez v. Holder, 518 F. App’x 370, 373 (6th Cir. 2013). Both the IJ and the BIA properly recognized this

change in the law and correctly applied the applicable standard.

3

The law cited by Petitioner in support of this contention has been abrogated by the REAL ID Act of 2005,

as explained above. The cases Petitioner cites dealt with asylum claims filed before May 11, 2005, and thus applied

the earlier and now inapplicable standard concerning adverse credibility findings. See, e.g., Chen v. Gonzales,

447 F.3d 468, 472 (6th Cir. 2006) (applying the pre-REAL ID Act standard to testimony given in a 2001 hearing);

Shkabari v. Gonzales, 427 F.3d 324, 329 (6th Cir. 2005) (applying the previous standard to an application filed

before the REAL ID Act took effect).

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substantial evidence supports it.” Masiko, 2014 WL 1424497, at *4 (citing El-Moussa, 569 F.3d

at 255-56).

Here, the IJ initially found that Chen’s testimony lacked credibility for several reasons.

First, the IJ found that Chen’s testimony lacked necessary detail concerning her arrest, detention,

and alleged interrogation and torture. Second, the IJ expressed concern regarding inconsistencies

in Chen’s testimony about her journey from China to the United States, including the

discrepancy between Chen’s testimony concerning where she traveled and the lack of stamps in

her passport to support that testimony. Due to such inconsistencies and lack of detail, the IJ

found that Chen’s testimony requires corroboration, but that Chen failed to provide any

corroborating evidence to support her claims. The IJ also determined that Chen’s reliance on

Country Reports of general conditions concerning government treatment of Falun Gong

practitioners is insufficient to corroborate Chen’s claims concerning her alleged past persecution

or fear of future persecution. Finally, Chen also failed to explain why such corroborating

evidence was not readily available to substantiate her claim. The BIA subsequently determined

that Chen also does not adequately explain the inconsistencies in her testimony or provide

corroborative evidence on appeal, and that the lack of persuasive explanations to reconcile the

discrepancies and lack of detail in her testimony provided an adequate basis for upholding the

IJ’s adverse credibility finding.

Before this Court, Chen first contends that basing an adverse credibility determination on

the lack of stamps in her passport was clearly erroneous because Chen did not testify she had

such stamps and because this issue does not go to “the heart” of her claim. However, when

comparing Chen’s testimony about leaving China to the record before us, clear discrepancies

exist. Chen testifies that she traveled from Hong Kong to Paris, and then from Paris to Mexico,

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yet there are no stamps in her passport reflecting travel into France or Mexico. Her passport also

contains a tourist visa from Thailand, although she specifically denied going to Thailand.

Additionally, despite Chen’s claim that she left China because of fear of imminent arrest, her

passport contains an exit stamp from China indicating her apparent ability to leave China without

any difficulty. The IJ was troubled by this fact and noted that the Chinese authorities have an

“extensive system for tracking criminal violators,” which would seem to make it difficult for

Chen to leave China under the circumstances alleged. Chen did not, and still does not, provide

any satisfactory explanation as to this apparent discrepancy in her story. Contrary to Chen’s

assertion, such inconsistencies are relevant to her overall asylum claim, and her ability to leave

China in particular would seem to diminish her claim concerning fear of future persecution. 4

Moreover, as explained above, the REAL ID Act specifically permits the IJ to base credibility

determinations on inconsistencies regardless of whether or not they “go to the heart” of the

applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Singh, 2014 WL 1424502, at *5

(“Even if it has little relevance to the proceedings, under the REAL ID Act, the IJ can use a

contradiction to determine a petitioner is not credible.”). Thus, the finding of inconsistency by

the IJ was not based purely on speculation or conjecture, but was in fact supported by the record.

Chen also contends that the IJ erred by determining that her testimony lacked detail about

her detention and beatings. The IJ specifically found that although Chen claimed she was

detained for a week, interrogated at least four times, and beaten at least three times, Chen did not

provide any detail concerning the place where she was detained, how many police officers

4

The transcript of the hearing before the immigration judge on June 14, 2011, reflects that Chen’s counsel

argued that Chen’s fear of future persecution was largely based on her fear that “the moment she returns” to China,

“the persecution will continue” because she failed to submit the list of Falun Gong practitioners, and that she will

have to betray her parents by turning in that list or else face physical abuse or even death. This assertion indicates

some inconsistency with Chen’s apparent ease in being able to leave China, and in the still unanswered question as

to why the police never interrogated, detained, or even suspected her parents or other relatives due to their own

involvement with Falun Gong.

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questioned or beat her, what specific types of injuries she received, or how she was beaten. The

IJ determined that Chen’s testimony on these matters was vague and thus not credible. Chen

argues that it was unreasonable to expect her to provide more detail about the alleged beatings

because she was beaten into unconsciousness. Chen also contends that she did provide sufficient

detail by stating how long she was detained, mentioning some of the questions she was asked,

explaining the conditions of her release, and stating how many times she was beaten. Chen

argues that if the IJ wanted more detail, the IJ should have asked Chen at the hearing. However,

as both the IJ and the BIA correctly noted, the burden of proof is entirely on Chen to provide

sufficient detail demonstrating that her testimony is credible, and not on the IJ or on government

counsel to solicit all necessary information. See, e.g., Singh, 2014 WL 1424502, at *5 (finding

that the burden is on petitioner challenging credibility determination “to show that any

reasonable factfinder would find him credible when considering the record as a whole”). In this

case, Chen’s allegations about her detention and beatings form the basis for her entire claim of

past persecution and most of the reasons supporting her alleged fear of future persecution. It was

therefore reasonable for the IJ to require more detail concerning this part of Chen’s testimony.

The transcript of the hearing reflects that only a few portions of approximately four pages

discuss Chen’s detention and three alleged beatings. Although it is a logical assumption that

Chen likely could not provide details of any beating she received while she was unconscious, the

BIA properly noted that Chen alleged that she was unconscious on only one of those occasions,

yet still provided no detail about the other alleged beatings.

Moreover, even if this lack of detail does not support the IJ’s ultimate finding, the IJ

based her finding on other evidence as well, as discussed herein. For instance, the IJ was

troubled by other aspects of Chen’s story that seem implausible. As the Board pointed out,

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although Chen’s parents practiced Falun Gong for some time before March 8, 2008, the police

apparently never questioned her parents or questioned Chen as to their whereabouts or activities.

Chen testified that she has never practiced Falun Gong, yet she was the one interrogated, beaten,

and detained; and she testified that her parents told her the police came to their home to search

for Chen but never detained or questioned her parents about their own Falun Gong activities.

While Chen correctly notes that her testimony described how the police hit her with their

fists and kicked her, and she generally described some of the questions they asked her, Chen’s

contention about the lack of detail is ultimately a disagreement with the IJ’s conclusion as to how

much detail is necessary. For an asylum applicant, “the mere failure . . . to include every detail

of an asylum claim in the application itself should not be considered fatal to a petitioner’s request

for relief.” Kaba v. Mukasey, 546 F.3d 741, 749 (6th Cir. 2008). Such omissions of detail in the

application are generally “not definitive when they involve claims that are subsequently

elucidated at the hearing.” Seo v. Holder, 533 F. App’x 605, 611 (6th Cir. 2013). However, in

Chen’s case, her testimony before the IJ does not reveal much more detail than was included in

her application, and the IJ thus found that her claims were not “subsequently elucidated.” Id.

Moreover, it is ultimately the immigration judge, and not Chen who must make the credibility

decision, and thus decide how much detail is necessary. In doing so, the IJ did not base her

adverse credibility determination solely on Chen’s lack of detail about her alleged beatings, but

rather on the totality of the considerations.

In a similar situation in Seo v. Holder, we upheld an IJ’s adverse credibility determination

even when two of the four inconsistencies upon which the IJ based that determination did not

support a finding of adverse credibility. Seo, 533 F. App’x at 611-12. There, we reasoned that

the other two inconsistencies supported the adverse credibility finding, and although they were

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“relatively inconsequential” to the petitioner’s asylum claim, they could still serve as a basis for

an adverse credibility determination under the new standard established by the REAL ID Act of

2005. Id. Additionally, we determined that the very existence of two identified inconsistencies

supporting the adverse credibility finding, though not vital to petitioner’s claim, made it

“difficult to argue that the evidence ‘compels’” a finding of credibility, especially when

combined with the IJ’s determination of the petitioner’s demeanor as a witness, which “is

virtually impossible to assess from a written transcript.” Id. at 612.

Similarly, the record as a whole in this case demonstrates that the BIA did not err in

upholding the IJ’s adverse credibility determination because that finding was supported by

substantial evidence. See, e.g., Gonzalez-Lopez v. Holder, 518 F. App’x 370, 373 (6th Cir. 2005)

(concluding that the IJ’s adverse credibility finding was supported by substantial evidence when

the record included significant inconsistencies that petitioner was unable to adequately explain);

Chagnaa v. Holder, 430 F. App’x 508, 511-13 (6th Cir. 2011) (affirming BIA’s adverse

credibility determination even when omissions cited by the BIA were insufficient to find

petitioners not credible because other noted inconsistencies were supported by specific reasons

and substantial record evidence).

2

Chen further contends that the IJ and BIA erred by requiring corroborating evidence. An

asylum applicant’s testimony standing alone may be sufficient to meet her burden without

corroboration, but only if the trier of fact is satisfied that the testimony is credible, persuasive,

and specific. 8 U.S.C. § 1158(b)(1)(B)(ii). Here, the BIA and the IJ determined that Chen’s

testimony is not credible or sufficiently detailed, and therefore Chen would have needed to

corroborate her testimony in order to meet her burden. Even if Chen’s testimony were found

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credible, the permissive language of the statute employed by use of the term “may” indicates that

even “credible testimony may not always satisfy the burden of proof.” Diallo v. INS, 232 F.3d

279, 286 (2nd Cir. 2000).

Immigration judges typically require corroborating evidence “when the applicant has

submitted little or no evidence to corroborate his testimony,” and “where it is reasonable to

expect corroborating evidence for certain alleged facts pertaining to the specifics of an

applicant’s claim.” Abdurakhmanov v. Holder, 735 F.3d 341, 347 (6th Cir. 2012) (quoting Lin v.

Holder, 565 F.3d 971, 977 (6th Cir. 2009)). Whenever the trier of fact determines that

corroboration is necessary, “such evidence must be provided unless the applicant demonstrates

that the applicant does not have the evidence and cannot reasonably obtain the evidence.”

8 U.S.C. § 1229a(c)(4)(B). This Court is “bound by the REAL ID Act of 2005 and may not

reverse an agency finding as to the availability of corroborating evidence unless the Court finds

. . . that a reasonable trier of fact is compelled to conclude that such corroborating evidence is

unavailable.” Urbina-Mejia v. Holder, 597 F.3d 360, 367 (6th Cir. 2010) (internal quotation

marks omitted).

Here, the only corroboration Chen provided was a declaration from her mother, her

mother’s medical reports to establish why her mother wanted to practice Falun Gong, and

Country Reports of the Chinese government’s general treatment of Falun Gong practitioners.

The IJ, however, determined that this is insufficient to establish Chen’s claims and that further

corroboration is necessary. Specifically, the IJ noted that Chen failed to corroborate her

testimony 1) by not producing the bail receipt she had indicated was issued upon her release

from the police; 2) by not providing a declaration from the aunt with whom Chen claimed to

have been hiding for some time; and 3) by not producing any corroborating declarations from the

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aunt and uncle who Chen claimed were present at her home when the police arrested her. Chen

never provided the IJ or the BIA with any explanation as to why these materials, or other

corroborating evidence, were not provided. In her appeal before this Court, Chen merely asserts

that the further corroboration required by the IJ was “unreasonable and unavailable.”

First, Chen strongly disagrees that a bail receipt should have been produced to the IJ.

Whether a bail receipt was actually issued to Chen upon her release from prison, and whether

Chen could reasonably have had access to such a document if it did exist, is certainly

questionable. Chen correctly argues that the transcript of the hearing does not necessarily

establish that such a receipt existed or was in Chen’s possession, yet Chen does not actually deny

its existence or explain why she did not have one. However, this was not the only corroboration

that was lacking, nor was the lack of a bail receipt the sole basis for the IJ’s decision. While the

Court recognizes that corroborating evidence in the form of a bail receipt very well may be

unavailable, the burden of demonstrating such unavailability is on Chen, particularly where her

testimony has already been deemed not credible.

Second, concerning the declarations of allegedly involved relatives, the IJ noted that a

declaration from the aunt with whom Chen claimed to have lived while hiding from the police,

or declarations establishing that her aunt and uncle escaped with her parents when Chen was

arrested, would have better substantiated her claims than simply her mother’s statement.

Additionally, Chen’s mother’s medical records do not substantiate Chen’s claim of persecution

nor do they reveal anything about Chen’s own potential danger of future persecution – while

they perhaps substantiate Chen’s mother’s reasons for practicing Falun Gong, they say nothing

about Chen’s own experience.5

5

The only other corroborating evidence Chen relies on are the Country Reports she submitted concerning the

Chinese government’s treatment of Falun Gong practitioners, but Chen has clearly testified that she is not, nor ever

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“In this circuit, supporting documentation is reasonably available ‘if it is of the type that

would normally be created or available in the particular country and is accessible to the alien,

such as through friends, relatives, or co-workers.’” Seo, 533 F. App’x at 614 (quoting Dorosh v.

Ashcroft, 398 F.3d 379, 382-84 (6th Cir. 2004)). While we doubt whether the bail receipt

referenced by the IJ would meet this definition of availability, Chen does not provide any

evidence as to why corroborating testimony is not reasonably available from her other family

members, nor does she assert that she has lost contact with all involved family members. Thus,

nothing in the record, and no part of Chen’s argument on appeal, “compels” the conclusion that

additional corroborating evidence is unavailable. See 8 U.S.C. § 1252(b)(4)(D).

In summary, both the Board and the IJ considered the totality of the circumstances and

provided the reasons for their adverse credibility determination using the factors set forth in

8 U.S.C. § 1158(b)(1)(iii). In light of that determination, it was reasonable for the IJ to expect

corroborating evidence, which Chen has not adequately established is unavailable. See, e.g.,

Hachem v. Holder, 656 F.3d 430, 434-45 (6th Cir. 2011) (affirming IJ’s adverse credibility

determination when IJ considered totality of circumstances and petitioner failed to provide

reasonably available corroborating evidence). Given the adverse credibility determination, Chen

cannot establish a reasonable fear of persecution. Because the “clear probability” standard

applicable in cases concerning withholding of removal is a more stringent standard than the

“well-founded fear of persecution” requirement for asylum cases, “an applicant who fails to

establish a well-founded fear of persecution for purposes of establishing asylum is necessarily

ineligible for withholding of removal.” Zhao, 569 F.3d at 246 n.10 (citing Lumaj v. Gonzales,

462 F.3d 574, 578 (6th Cir. 2006)); see also Hachem, 656 F.3d at 435 (“Because [petitioner] was

has been, a practitioner of Falun Gong, so it is difficult to see how the Country Reports support a reasonable fear of

future persecution.

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found not credible, he failed to present adequate and credible evidence that he was subject to

persecution or has a well-founded fear of future persecution so that he may be entitled to asylum

relief.”). Accordingly, the adverse credibility finding, which we uphold, precludes Chen from

meeting her burden on her claims for both asylum and withholding of removal.

C

Finally, Chen challenges the IJ’s decision that she failed to establish either past

persecution or a well-founded fear of persecution such that she could seek protection under the

Convention Against Torture. The adverse credibility finding, however, defeats this claim as

well. An applicant seeking eligibility for protection under the Convention Against Torture must

establish that “it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” Singh v. Ashcroft, 398 F.3d 396, 404 (6th Cir. 2005) (quoting

8 C.F.R. § 208.16(c)(2)). Torture is “an extreme form of cruel and inhuman treatment,” 8 C.F.R.

§ 208.18(a)(2), and is “any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted” as a means of intimidating, punishing, or coercing on the part of a public

official or other person acting in that capacity. 8 C.F.R. § 208.18(a)(1). Thus, to obtain

protection under the CAT requires an even greater showing on the part of an applicant than is

required for asylum and withholding of removal.

As explained above, an adverse credibility finding “is fatal to all three of [Chen’s] claims

for relief,” El-Moussa, 569 F.3d at 256, because such a finding “precludes an applicant from

demonstrating either the well-founded fear of future persecution necessary to establish eligibility

for asylum, or the ‘clear probability’ of future persecution necessary” for withholding of

removal. Seo, 533 F. App’x at 615 (quoting El-Moussa, 569 F.3d at 267). When an applicant

fails to satisfy “the threshold showing of credibility to warrant withholding of removal. . . , it

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logically follows that he cannot demonstrate that he is entitled to relief under the CAT.” Zhao,

569 F.3d at 249. Because the IJ properly determined that Chen did not present credible

testimony, Chen cannot establish that she reasonably fears torture or other persecution upon

return to China and thus cannot make the necessary showing to obtain protection under the CAT

as well. See, e.g., Chagnaa v. Holder, 430 F. App’x 508, 514 (6th Cir. 2011) (denying

petitioner’s CAT claim because she did not present independent evidence apart from her

testimony that was found not credible); Masiko, 2014 WL 1424497, at *5 (finding that without

credible testimony supporting his story, petitioner could not establish his claims for asylum,

withholding of removal, or protection under CAT).

Moreover, even apart from the adverse credibility finding, Chen still fails to demonstrate

a clear probability of future persecution based on her arguments on appeal. Chen’s brief

primarily argues that she has demonstrated a fear of future persecution “on account of her

practice of Falun Gong” and because “she is a Falun Gong practitioner,” and she also asserts that

she has “provided sufficient evidence regarding her Falun Gong activities in the United States.”

Presumably, Chen then relies on the information provided concerning the Chinese government’s

poor treatment of Falun Gong practitioners. However, the transcript of the hearing before the

immigration judge, as well as Chen’s asylum application, show that Chen specifically testified

that she is not a Falun Gong practitioner, and that she has never practiced Falun Gong either in

China or in the United States. Thus, the record does not support her arguments concerning her

fear of persecution.

III

As this Court explains, “[a]pplicants for asylum, withholding of removal, and protection

under the torture convention have an affirmative duty to demonstrate entitlement to each form of

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relief.” El-Moussa, 569 F.3d at 257. For each of Chen’s claims, the IJ and the BIA found that

she does not meet this burden, primarily because Chen’s testimony was deemed not credible, and

such findings are supported by substantial evidence. Accordingly, “the adverse credibility

finding thus provides an alternative ground for upholding the denial of asylum, and a primary

ground for denying [Chen’s] other claims,” since a lack of credible testimony prevents her from

meeting any of the required burdens of proof. Id. For these reasons, the petition for relief is

DENIED.

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