Meixiang Cui v. Merrick B. Garland

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-2177

MEIXIANG CUI,

Petitioner,

v.

MERRICK B. GARLAND,

Attorney General of the United States,

Respondent.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A201-004-428

____________________

SUBMITTED NOVEMBER 30, 2022 * — DECIDED JUNE 16, 2023

____________________

Before WOOD, JACKSON-AKIWUMI, and LEE, Circuit Judges.

LEE, Circuit Judge. Meixiang Cui petitions for review of the

denial of her application for asylum, withholding of removal,

and protection under the Convention Against Torture. The

* We granted the joint motion to waive oral argument, and the appeal

is therefore submitted on the briefs and the record. FED. R. APP. P.

34(a)(2)(C).

2 No. 22-2177

immigration judge found that Cui was not credible due to her

inconsistent and evasive testimony. The Board of Immigra-

tion Appeals affirmed. Because substantial evidence supports

the adverse credibility determination, we deny Cui’s petition

for review.

I. Background

A. Factual Background

Cui, a 52-year-old woman, is a citizen of China. In April

2011, she entered the United States on a temporary business

visa. In October 2011, Cui filed an application for asylum, see

8 U.S.C. § 1158, and withholding of removal, see id.

§ 1231(b)(3), under the Immigration and Nationality Act. She

also applied for protection under the Convention Against

Torture, see 8 C.F.R. § 1208.16(c).

In her application, Cui asserted that Chinese officials had

previously forced her to undergo two involuntary abortions,

and she feared that authorities would forcibly sterilize her if

she returned to China. Cui submitted an affidavit in support

of her application. According to the affidavit, Cui gave birth

to her only child in April 1999. Family-planning officials then

forced Cui to insert a contraceptive ring (also called an intra-

uterine device, or an IUD). Cui secretly removed this IUD in

2003. In early 2004, Cui became pregnant again, but officials

forced her to undergo an abortion and insert another IUD.

The affidavit did not clarify whether Cui removed this IUD.

But Cui became pregnant again in 2010. When Cui was five

months pregnant, family-planning officials discovered the

pregnancy and forcibly took her to the hospital, where doc-

tors induced a stillborn birth. The officials also ordered that

No. 22-2177 3

Cui be sterilized in six months. Before she could be sterilized,

Cui fled to the United States.

In addition to submitting this affidavit, Cui also provided

an “outpatient certificate” from “Central Hospital of Fushun”

as part of her asylum application. The certificate states that

Cui had an “induced abortion” on November 8, 2010, and in-

cluded a suggestion that Cui rest for one month.

After Cui filed her asylum application, the government

commenced removal proceedings. In March 2012, Cui ap-

peared before an immigration judge in Chicago and conceded

removability as charged. The judge scheduled a hearing as to

her asylum application, request for withholding, and request

for relief under the Convention Against Torture for February

23, 2015.

This February 2015 hearing ended up focusing on Cui’s

activities in the United States, rather than her claimed perse-

cution in China. That is because a background check revealed

that in 2011, Cui had been arrested in Minnesota—a fact that

Cui had not disclosed to the immigration judge. Additionally,

Cui had received two citations in 2012 for an incident at a

massage spa in Oklahoma. Although she disclosed these cita-

tions to the judge, she did not provide much documentation

about them. The immigration judge therefore requested a full

record of both incidents and scheduled another hearing. Be-

fore that hearing occurred, Cui encountered more legal trou-

bles. In 2017, she pleaded guilty to a misdemeanor offense of

running a massage spa without a license in Missouri.

On December 10, 2018, Cui finally had her merits hearing.

At that hearing, Cui largely repeated the claims that she had

made in her 2011 affidavit. Cui testified that at some point

4 No. 22-2177

after giving birth to her only child, family-planning officials

forced her to insert an IUD, which she had removed in 2003

at a private clinic. Cui became pregnant in early 2004, but fam-

ily-planning officials forced her to have an abortion and insert

another IUD. Cui testified that she had this second IUD re-

moved at the same private clinic where she went for the first

removal. When the government pointed out that she did not

include this detail in her affidavit, Cui said, “I don’t remem-

ber why I didn’t put it in. I may have overlooked it.”

Cui also described her second abortion at the hearing. She

testified that the abortion happened at “Fushun City Number

Four Hospital.” When the government noted that her outpa-

tient certificate said the abortion occurred at “Central Hospi-

tal Fushun,” Cui explained that she may have made a mistake

because it was so long ago. Cui additionally confirmed that,

as noted on the outpatient certificate, the doctor had told her

she needed to rest for a month after the abortion; according to

the doctor’s instructions, she was supposed to “stay bedrid-

den” during this time. Cui said that she “kind of” rested dur-

ing this month. Concerning the outpatient certificate, Cui also

testified that she did not receive the certificate directly from

the hospital after her abortion, but from a friend who obtained

the certificate after Cui was already in the United States.

Next, Cui testified about her entry into the United States.

Cui explained that, in February 2011, she contacted a smug-

gler to help get her into the United States. Cui testified that

this was the first time she had ever applied for a visa. When

the government pointed out that she had applied for a visa in

November 2010, Cui clarified that she remembered applying

once and then applying again after the first one was rejected.

Cui also confirmed that she went in for an interview

No. 22-2177 5

(presumably to the United States Embassy) on November 30,

2010, apparently as part of her first application. This interview

was within one month of her second abortion, when she was

supposed to be on bedrest.

Finally, Cui testified about her activities in the United

States—namely, her work history, residences, and criminal

history. According to Cui’s asylum application, she had lived

in Chicago from her arrival to the United States in April 2011

until she submitted her application in October 2011. For her

December 2018 hearing, Cui submitted a document listing her

residences and work history, but only beginning in January

2012. According to that document, Cui lived in Oklahoma and

Missouri from 2012 to the present; the document did not state

that Cui had lived in Chicago in 2011 or any time afterwards.

At the hearing, Cui testified that she currently lives in Chi-

cago, but also said that she only comes to Chicago for short

periods of time, when she has “things” to take care of in the

city. When the immigration judge asked Cui about where she

lived in Chicago, Cui could not provide a full address.

Cui also testified about each of her run-ins with the law in

this country. When asked about her 2011 arrest in Minnesota,

Cui first denied that she was ever arrested. She then admitted

that she was initially charged with a crime, but insisted that

the situation was a misunderstanding, as the police were in-

vestigating the massage spa where she happened to be. Cui

never provided any documentation concerning this arrest, de-

spite the immigration judge’s earlier instruction to do so. As

for her two Oklahoma citations from 2012, Cui testified that

those citations arose when a customer at her sister’s massage

spa accused Cui of providing massages without a license. Cui

then denied working at her sister’s spa at the time (instead,

6 No. 22-2177

she claimed to be staying there temporarily) and denied

providing the customer a massage (though she admitted to

leading him to a different room in the spa). Finally, Cui ad-

mitted that she ran a spa without the proper licensing, which

was the conduct underlying her Missouri misdemeanor from

2017. But Cui again denied culpability, explaining that she did

not know she needed a state license in addition to a local li-

cense.

B. Agency Decision

On December 10, 2018, the immigration judge issued an

oral decision denying all of Cui’s claims for immigration re-

lief, largely because her testimony was not credible. To sup-

port the adverse credibility determination, the judge pointed

to five inconsistencies: (1) Cui’s 2011 affidavit did not mention

that she had her second IUD removed at a private clinic, even

though she testified to this effect at the hearing; (2) the name

of the hospital where she had her second abortion in 2010 was

different on the outpatient certificate than what she claimed;

(3) Cui testified that she first applied for a visa shortly after

she had contacted the smuggler in February 2011, but in fact

she had filed a visa application in November 2010, when she

was supposed to be on bedrest; (4) Cui did not testify truth-

fully about where she had lived in the United States, falsely

claiming to have lived in Chicago; and (5) Cui did not testify

truthfully about her criminal activities in the Unites States.

Additionally, the immigration judge concluded that Cui had

failed to sufficiently corroborate her claim with credible evi-

dence. 1

1 The immigration judge also provided two alternative grounds for

denying asylum: that Cui had failed to provide documentation of her

No. 22-2177 7

The Board of Immigration Appeals issued a written opin-

ion, affirming the immigration judge’s “adverse credibility

determination, as it [wa]s not clearly erroneous.” In doing so,

the Board highlighted most (but not all) of the inconsistencies

that the judge relied upon when making this finding. The

Board also affirmed the immigration judge’s conclusion that

Cui had failed to provide sufficient corroborating evidence. 2

II. Legal Framework

A. Claim for Asylum

As noted, Cui applied for asylum, withholding of removal,

and protection under the Convention Against Torture. We fo-

cus on her claim for asylum because the burden of establish-

ing asylum is less stringent than the burden of establishing

her other claims. Alvarenga-Flores v. Sessions, 901 F.3d 922, 926

(7th Cir. 2018). Thus, if Cui cannot establish eligibility for asy-

lum, her remaining claims fail as well. Id.

The Attorney General has discretion to grant asylum to an

individual who qualifies as a “refugee,” meaning someone

“who is unable or unwilling to return to … [the country of her

nationality] because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, member-

ship in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A); see id. § 1158(b)(1)(A). By statute, “a

Minnesota arrest, and that the judge would deny asylum as a matter of

discretion. The Board did not affirm on these alternative grounds, and so

we do not consider them either.

2 Additionally, the Board concluded that Cui’s evidence about the

general human rights conditions in China did not establish relief from re-

moval. Cui did not challenge this on appeal, and so any argument con-

cerning country conditions is waived.

8 No. 22-2177

person who has been forced to abort a pregnancy or to un-

dergo involuntary sterilization … shall be deemed to have

been persecuted on account of political opinion.” Id.

§ 1101(a)(42)(B). If an asylum applicant establishes past per-

secution, “a presumption arises that [she] also has a well-

founded fear of future persecution for the same reason.” Yi

Xian Chen v. Holder, 705 F.3d 624, 628 (7th Cir. 2013); see

8 C.F.R. § 208.13(b)(1). 3

The applicant bears the burden of establishing that she is

a qualifying refugee. 8 U.S.C. § 1158(b)(1)(B)(i). “In some

cases, the applicant may carry the burden through testimony

alone, but only if the immigration judge finds the testimony

credible and persuasive.” Cojocari v. Sessions, 863 F.3d 616, 620

(7th Cir. 2017) (citing 8 U.S.C. § 1158(b)(1)(B)(ii)).

The REAL ID Act of 2005 governs how an immigration

judge makes credibility determinations. When making an ad-

verse credibility finding, the judge may rely on any inconsist-

encies in the applicant’s testimony, not just inconsistencies at

the “heart” of her claim. Cojocari, 863 F.3d at 620 (quoting

8 U.S.C. § 1158(b)(1)(B)(iii)). At the same time, the immigra-

tion judge must “distinguish between inconsistencies … that

are material and those that are not.” Krishnapillai v. Holder,

563 F.3d 606, 617 (7th Cir. 2009). Trivial inconsistencies or in-

nocent mistakes cannot support an adverse credibility

3 Where the applicant establishes past persecution (and therefore is

entitled to a presumption of well-founded fear of future persecution), the

burden of proof shifts to the government to rebut this presumption by a

preponderance of the evidence. 8 C.F.R. § 208.13(b)(1); see Xiang v. Lynch,

845 F.3d 306, 309–10 (7th Cir. 2017). Cui did not make any argument con-

cerning the burden-shifting framework on appeal and, thus, any such ar-

guments are waived.

No. 22-2177 9

determination. See Cojocari, 863 F.3d at 622 (remanding where

most of the purported inconsistencies were “so trivial or be-

nign that they cast no reasonable suspicion on the substance

of [the applicant’s] testimony”); Chun Sui Yuan v. Lynch,

827 F.3d 648, 656 (7th Cir. 2016) (remanding where the pur-

ported inconsistencies were “either so easily explained or so

trivial as to call into doubt the Board’s decision”). Finally, “an

adverse credibility finding must be supported by specific and

cogent reasons, and the judge must consider explanations of-

fered for gaps and inconsistencies.” Santashbekov v. Lynch,

834 F.3d 836, 839 (7th Cir. 2016).

B. Scope of Review

“Where the Board of Immigration Appeals agrees with the

immigration judge’s decision but supplements that decision

with its own analysis, as it did here, we review both the

underlying decision and the Board’s additional reasoning.”

Cojocari, 863 F.3d at 621. We “consider not only those aspects

of the immigration judge’s decision that the Board chose to

emphasize but also those findings that the Board implicitly

endorsed.” Id. at 621 n.2.

In this case, the Board affirmed the immigration judge’s

credibility and evidentiary findings. In her petition for this

court’s review, Cui focuses almost entirely on the adverse

credibility determination. She spends only a single sentence

on the immigration judge’s conclusion that her evidence did

not sufficiently corroborate her account; this sentence con-

cedes that Cui’s evidence was “limited” and provides no rel-

evant authority to argue that the evidentiary findings were in

10 No. 22-2177

error. 4 Thus, any challenge to the evidentiary findings is

waived, see Shipley v. Chi. Bd. of Election Comm’rs, 947 F.3d

1056, 1063 (7th Cir. 2020) (“Arguments that are underdevel-

oped, cursory, and lack supporting authority are waived.”),

and we limit our consideration to the immigration judge’s ad-

verse credibility determination.

Our review of this determination is deferential. We uphold

the immigration judge’s factual findings so long as they are

supported by substantial evidence. Santashbekov, 834 F.3d at

839. This is particularly true for credibility findings, which are

overturned only in “extraordinary circumstances.” Id. (quot-

ing Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004)).

III. Analysis

This is not an “extraordinary” case where the adverse

credibility determination should be overturned. Although not

all of the immigration judge’s reasons for discounting Cui’s

testimony are compelling, the judge’s ultimate determination

was supported by substantial evidence.

Most significantly, the immigration judge found that Cui’s

testimony about her time in the United States—including

where she lived and her criminal record—was not truthful or

forthright. For instance, in both her 2011 asylum application

and at her immigration hearing, Cui stated that she lived in

Chicago, but the immigration judge concluded that she never

lived there. On appeal, Cui argues that this was in error,

4 Instead, Cui cites several decisions by the Board confirming that

forced sterilization and forced abortion constitute persecution on account

of political opinion. This does not address the immigration judge’s con-

clusion that her evidence failed to sufficiently corroborate her claim that

she underwent a forced abortion.

No. 22-2177 11

because she simply testified that she had lived in various

states for brief periods and always maintained her residence

in Chicago. But the immigration judge’s finding was sup-

ported by substantial evidence: Cui could not list her Chicago

address, testified that she only comes to Chicago when she

has business there, and did not list Chicago on the document

describing her prior residences.

The immigration judge’s discussion of Cui’s criminal rec-

ord was also reasonable. Cui had multiple encounters with

the law during her time in the United States (all related to im-

proper or unlicensed massage work), but denied any culpa-

bility at the immigration hearing regarding the Oklahoma ci-

tations and the Missouri misdemeanor. Furthermore, Cui tes-

tified inconsistently about whether she had been arrested in

Minnesota and failed to submit any documentation for that

arrest (despite instructions from the immigration judge to do

so). On this record, we cannot fault the immigration judge for

being troubled by Cui’s refusal to “admit to any wrongdoing”

regarding her Oklahoma citations, nor the judge’s conclusion

that Cui’s explanations for her criminal record lacked credi-

bility. Cf. Tawuo v. Lynch, 799 F.3d 725, 728 (7th Cir. 2015)

(“When caught in what appeared to be a lie, [the applicant]

provided an unconvincing explanation. The [immigration

judge] was well within his rights to regard this as evidence of

a lack of credibility.”). Although Cui continues to insist that

she testified about her criminal history truthfully, she merely

reiterates the explanations that she provided to the immigra-

tion judge. We will not disturb the judge’s rejection of her ex-

cuses unless the record “compels” such a result, see

Zhakypbaev v. Sessions, 880 F.3d 881, 887 (7th Cir. 2018), and

Cui has not shown that the judge’s conclusions lack substan-

tial support in the record.

12 No. 22-2177

Next, the immigration judge cited Cui’s inconsistent testi-

mony about her visa application process. Although Cui ini-

tially testified that she first applied for a visa after contacting

a smuggler in February 2011, she later acknowledged that she

previously had applied for a visa in November 2010. Moreo-

ver, Cui had a visa interview in conjunction with this first ap-

plication. The immigration judge reasonably concluded that

Cui’s shifting and internally inconsistent story reflected an

overall lack of credibility. See Tawuo, 799 F.3d at 728 (appli-

cant’s changing story about his visa application process sup-

ported the adverse credibility determination). Cui’s argu-

ments on appeal do not alter this conclusion, and she offers

no compelling explanation for why she initially testified that

the smuggler-assisted application was her first.

The immigration judge also pointed out that, at the hear-

ing, Cui provided a slightly different name for the hospital

where she had her second abortion, as compared to the name

listed on her outpatient certificate. This minor mistake does

not necessarily cast doubt on Cui’s testimony. See Cojocari,

863 F.3d at 622 (immigration judges cannot place “outsized

importance” on “the sorts of minor details that are most vul-

nerable to the vagaries of human memory,” such as small mis-

takes about dates and times). But the immigration judge was

also concerned about the authenticity of the outpatient certif-

icate because Cui did not receive the certificate from the hos-

pital, but from a friend who mailed it to the United States after

the abortion allegedly occurred. On appeal, we defer to the

immigration judge absent “extraordinary circumstances,”

and we are not convinced that this record presents such cir-

cumstances.

No. 22-2177 13

We are less concerned by the last discrepancy in Cui’s

story. The immigration judge noted that Cui did not discuss

the removal of her second IUD in her affidavit, but she did

detail this incident at her hearing. On its own, this type of mi-

nor discrepancy between an applicant’s pre-testimony writ-

ten statement and more detailed testimony given at a live

hearing might not support an adverse credibility determina-

tion. See Cojocari, 863 F.3d at 624. But, in combination with the

other inconsistencies identified by the immigration judge, we

are satisfied that the judge’s determination was supported by

substantial evidence.

IV. Conclusion

In sum, the record shows that the immigration judge con-

sidered Cui’s testimony and evidence, pointed to several ma-

terial inconsistencies and instances of evasive or untruthful

testimony, and determined that Cui’s overall testimony

lacked credibility. These findings find substantial support in

the record. Thus, Cui has not met her burden to establish eli-

gibility for asylum. And, because the burdens for securing

withholding of removal or protection under the Convention

Against Torture are more stringent, those claims fail as well.

Accordingly, Cui’s petition for review is DENIED.