     Case: 17-60048      Document: 00514519335         Page: 1    Date Filed: 06/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 17-60048                           June 19, 2018
                                                                            Lyle W. Cayce
FA WANG,                                                                         Clerk


              Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

              Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A087 834 841


Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:*
       Petitioner Fa Wang, a native and citizen of China, came to the United
States in 2009. The Immigration Judge denied his application for asylum,
withholding of removal, and relief under the Convention Against Torture after
finding Wang was not a credible witness when he described religious
persecution in China but failed to present corroborating evidence. The Board
of Immigration Appeals affirmed. We DENY Wang’s petition for review.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 17-60048

                FACTUAL AND PROCEDURAL BACKGROUND
       Fa Wang entered the United States on a student visa on November 11,
2009. He has remained since that time, even after his visa lapsed when he
discontinued his education. Wang had recently graduated from high school
when he arrived in the United States; he is now 27 years old. Within two
months of arriving in the United States, Wang submitted an application for
asylum based on persecution in China for his Christian religion.
       Wang described his experiences as follows. In 2008, Wang was invited
to attend a small underground Christian church in China that met in a
member’s home.        While visiting the house church, Wang met a man who
identified another house church with younger members. Wang switched his
attendance. There were 12 members in this house church, and Wang attended
it every week until August 23, 2009. On August 23, four police officers broke
into their gathering and arrested all of the members, confiscated their Bibles,
and took them to the Huanghai Police Station.
       The police interrogated Wang for about an hour, questioning him about
how he practiced his Christian religion. The police also slapped his face, broke
his glasses, and shocked him with an electric baton five times. The police then
detained Wang for eight days until his father paid 1,000 RMB 1 on September
1.   Before releasing Wang, the police required him to sign a statement
denouncing his Christian religion. As conditions of his release, Wang was also
required to stop attending the house church, avoid contact with any of the
house church members, and report to the police station every week.




       1This is about $160 dollars. YAHOO! FINANCE, https://finance.yahoo.com/currency-
converter/ (last visited April 19, 2018). RMB, renminbi, is also abbreviated as CNY, Chinese
yuan.
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      Shortly thereafter, with the help of his father who hired an agent, Wang
obtained a student visa to come to the United States. This success was after
two previous attempts to obtain a student visa had failed. After Wang left
China, the police continued to look for him, including by questioning his
parents. Wang does not report any harm to his parents.
      Upon arriving in the United States in November 2009 on his student
visa, Wang attended National University and started living in San Diego,
California. His attendance at the university ended after one month. He
explains that he discontinued his studies because he believed he would be
required to return to China upon graduation, which he wanted to avoid. Wang
alleges he claimed a desire to study in the United States because he thought
he had to do so in order to leave China. In January 2010, two months after
arriving in the United States, Wang filed his application for asylum, stating
that he faced persecution for his Christian religion in China. When later asked
why he did not seek asylum in November when he entered the United States,
Wang testified that he “did not know anything here and [he] did not get used
to the life here.”
      In December 2010, the Department of Homeland Security issued a notice
to appear, charging Wang with removability because he did not attend school
in compliance with the conditions of his status in the United States. Wang
admitted the allegations in the notice to appear and conceded removability.
On May 12, 2016, a final hearing was held on Wang’s application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). Wang was represented by counsel. Wang was the only witness to
testify. At the time, he had a limited ability to understand or communicate in
English, and he testified through an interpreter.


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      Wang testified about religious persecution in China and his three
attempts to come to the United States. He also testified about his life in this
country. Of concern to the Immigration Judge, Wang could not remember
important details about his life, such as where he had lived or how many jobs
he had worked since he arrived. He was uncertain about what states he had
lived in although he did testify that he had lived in both Texas and California.
Wang explained he had worked many jobs, exclusively at restaurants, and he
often lived with his employer. Wang was uncertain in describing his parents’
occupations. In response to why he did not know certain facts, Wang testified
he had “never been to any foreign country. I have no idea about United States.”
      As to his religious practices in the United States, he testified that he
attended church twice a month. In Texas, he believed that the church he
attended was Chinese Gospel Church, which was led by Pastor Liu. Wang
testified he feared returning to China because he would be arrested or detained
because he was a Christian. He also provided eight exhibits: a notarized
certificate of his birth, a notarized certificate of his household register, his
Chinese ID card, a police report of his arrest, police report notification, proof
of fingerprint, proof of residency, and verification certification.       These
documents were translated from Mandarin into English, and the translator
certified that the translation was correct.       Wang did not provide any
documents, such as letters, to corroborate his story of persecution in China.
      The Immigration Judge denied Wang’s applications for asylum,
withholding of removal, and relief under CAT. He found that Wang was not
credible, that his testimony was “hesitant, circular, non-responsive, [and] in
some cases nonsensical,” and that Wang had no corroboration. The Board of
Immigration Appeals (“BIA”) adopted and affirmed the decision. Wang timely
filed a petition for review.

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                                 DISCUSSION
      We review both the Immigration Judge’s and the BIA’s opinions because
the BIA adopted the earlier decision. See Zhu v. Gonzales, 493 F.3d 588, 593
(5th Cir. 2007). We review factual findings for substantial evidence and legal
conclusions de novo. Id. at 594. In reviewing the facts for substantial evidence,
we consider if the agency’s determination was based on a “full and fair
consideration of all circumstances” with “meaningful consideration of the
relevant substantial evidence supporting the alien’s claims.” Abdel-Masieh v.
INS, 73 F.3d 579, 585 (5th Cir. 1996) (citations omitted). Under this standard,
we must affirm the agency’s determination unless the evidence compels a
contrary conclusion. See id. “The applicant has the burden of showing that
the evidence is so compelling that no reasonable factfinder could reach a
contrary conclusion.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
      An applicant’s testimony alone may be sufficient to obtain relief, but
corroborating evidence should be provided if reasonably available. See Yang v.
Holder, 664 F.3d 580, 586 (5th Cir. 2011). The applicant must persuade the
factfinder that his “testimony is credible, is persuasive, and refers to specific
facts sufficient to demonstrate that the applicant is a refugee.”        8 U.S.C.
§ 1158(b)(1)(B)(ii).   The factfinder must make a determination on the
credibility of the witness. See Efe v. Ashcroft, 293 F.3d 899, 905 (5th Cir. 2002).
In making adverse credibility determinations, immigration judges frequently
rely on inconsistencies, inaccuracies, and falsehoods, even if inconsequential.
See Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009). Although we cannot
substitute our judgment for that of the factfinder, we will not uphold an
adverse credibility determination that is “based on pure speculation or
conjecture” because “an adverse credibility determination still ‘must be


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supported by specific and cogent reasons derived from the record.’” Id. (quoting
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005)).
      Wang seeks asylum, withholding of removal, and relief under CAT. The
Attorney General has discretion to grant asylum. See 8 U.S.C. § 1158, et seq.
To obtain asylum, an applicant must first qualify as a “refugee,” which is an
alien that is unable or unwilling to return to his home country because he has
been persecuted or has a well-founded fear of future persecution on account of
his “race, religion, nationality, membership in a particular social group, or
political opinion.” Id. § 1101(a)(42)(A). An applicant has a well-founded fear
if he has a subjective fear of persecution that is objectively reasonable. Zhao
v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005). For withholding of removal, an
applicant must show a “clear probability” of persecution in his home country
on account of race, religion, nationality, membership in a particular social
group, or political opinion.   Zhang, 432 F.3d at 344.      Unlike asylum or
withholding of removal, a CAT claimant must show that it is “more likely than
not” that he will be tortured if forced to return to his home country. 8 C.F.R.
§ 208.16(c)(2). The claim need not be based on race, religion, nationality,
membership in a particular social group, or political opinion. Zhang, 432 F.3d
at 344.
      Wang argues that there was substantial evidence supporting his claim
that he was persecuted before leaving China and he has a well-founded fear of
persecution if he returns. He further argues that the Immigration Judge
wrongfully speculated that his motivation for leaving China was to find
economic opportunity rather than to avoid religious persecution. He clarifies
that although he did want to leave China prior to being persecuted, the
persecution “accelerated his plan to leave China,” which is not inconsistent
with his prior desire to leave China.      He further argues that no specific

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inconsistency was identified regarding his conversion to Christianity and
persecution in China because of his religion. Wang contends that his exhibits
supporting his claim of persecution in China were authenticated in court. He
further explains that obtaining a corroborating letter from his father would
have been difficult because his father is still in China. Finally, he provides
reports showing that Christians are persecuted in China.
      The Government counters that there is no evidence in the record that
compels reversal of the BIA.        We often have upheld the BIA’s adverse
credibility determinations because of factual inconsistencies and omissions in
a petitioner’s testimony. For example, we agreed with the adverse credibility
determination and denied relief where a petitioner disavowed membership in
a political group and then stated that he had always been a member of the
group. Singh v. Sessions, 880 F.3d 220, 223, 226 (5th Cir. 2018). We also
denied relief when a petitioner failed to provide corroborating evidence without
any explanation for the lack of corroboration from family and friends. Diaz
Flores v. Ashcroft, 104 F. App’x 418, 419 (5th Cir. 2004). Though the latter
decision is not precedential, we agree with its conclusion that the absence of
corroboration can be suspicious.
      Although Wang’s testimony has been fairly consistent, it contains
significant omissions. He was uncertain of where he has lived, worked, and
attended church since arriving in the United States. The Immigration Judge
made an adverse credibility determination in part because Wang “made
several misstatements on his application and in his testimony, particularly
concerning his place of residence, his places of employment, and his places of
education.” In fact, Wang did not provide evidence of employment records or
evidence supporting his statement that “he attended many Christian churches
in the United States.” Most strikingly, the Immigration Judge found that

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Wang was “unable to give the name” of any church he attended in the United
States.   Also noted were inconsistencies in Wang’s testimony about his
residency in the United States. In addition, the Government argues that
corroborating evidence of various assertions was reasonably available yet not
provided. Wang fails to explain why he did not obtain a letter from his parents
or from someone at his church in the United States, which Wang implicitly
admits he could have done when he wrote in his appellate brief that “perhaps
he should have obtained a letter from his parents” and “evidence of his church
attendance in the United States.” Even if some of his uncertainties could be
explained by Wang’s difficulties with English, an adverse credibility
determination was justified.
      There also were less defensible reasons for the credibility finding,
reasons similar but distinguishable to those in another petition for review. See
Ye v. Sessions, 695 F. App’x 785, 786 (5th Cir. 2017). Though that decision is
not precedential, we see no error in it. There, we granted the relief after
concluding the BIA’s decision did not reflect meaningful consideration of the
evidence by the same Immigration Judge as heard Wang’s case. Id. at 790. In
Ye, this Immigration Judge improperly speculated about the sincerity of Ye’s
conversion to Christianity. Id. at 788–89.
      As to Wang, in addition to the credibility concerns that were reasonable,
the Immigration Judge found the timing of Wang’s participation in the Chinese
house church to be “highly suspicious” and “convenient.” Further speculation
was that “[l]uckily for [Wang], he was arrested by the police right at the time
he was trying to figure out a way to come to the United States.” Though
improperly speculative, these findings do not dominate the credibility analysis
as the panel in Ye concluded was the case there. Even when we doubt the
propriety of some of the credibility findings, we agree it is proper to affirm if

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other reasons are sound and “there is no realistic possibility that, absent the
errors, the [Immigration Judge] or BIA would have reached a different
conclusion.” See Yang v. Gonzales, 496 F.3d 268, 272 (2d Cir. 2007) (quoting
Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005)).
      We sustain the credibility finding here. First, we distinguish Ye. Wang
provided considerably less corroboration for his story than did Ye. Ye obtained
letters from her house church in China that confirmed the police raid there;
she provided a letter from her pastor in the United States corroborating that
she practiced her religion in this country; Ye also provided a witness at her
hearing that corroborated her story. Ye, 695 F. App’x at 787.
      Equally important, there was substantial support for the Immigration
Judge’s adverse credibility decision as to Wang that was independent of the
improper speculation. Thus, we are convinced a remand would not alter the
Immigration Judge’s or BIA’s findings on credibility, which are owed “great
deference.” Efe, 293 F.3d at 903.
      We are to deny a petition for review unless “the evidence is so compelling
that no reasonable factfinder could reach a contrary conclusion.” Chen, 470
F.3d at 1134. On this record, a reasonable factfinder could conclude that Wang
was not a credible witness and thus not entitled to asylum, withholding of
removal, or CAT relief.
      PETITION DENIED.




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