400 F. App'x 854
5th Cir.2010Background
- Li, a Chinese citizen, seeks review of BIA denial of withholding of removal after IJ credibility ruling.
- Li entered the U.S. on a business visa in 2000 and basis his claim on his wife’s alleged coerced abortion in 1990.
- Li alleges job loss and two days of detention with coercive questioning and some non-medical physical abuse following resistance to the abortion.
- IJ found Li not credible due to inconsistencies between testimony and documentary records; BIA affirmed and denied withholding both for lack of past persecution and lack of fear of future persecution.
- Petitioner argues the credibility findings are not supported by the record and that there is evidence of past persecution; the government contends the totality supports credibility and denial.
- The court applies substantial evidence review and REAL ID Act standards, deferring to the credibility determinations if reasonable in light of the totality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ and BIA erred in adverse credibility findings | Li contends discrepancies undermine the finding | BIA/ IJ properly relied on inconsistencies in Li's evidence | Credibility determinations supported by substantial evidence |
| Whether Li proved past persecution | Li asserts extreme conduct via coercion and detention constitutes past persecution | Li's alleged conduct does not meet the extreme standard for persecution | Li failed to show past persecution |
| Whether Li has a current objective fear of future persecution | Fear tied to past persecution justifies future risk | No current objective basis for fear; events occurred decades ago | No current objective basis for fear; not eligible |
| Whether the IJ's reliance on Wikipedia undermines the credibility ruling | Reliance on Wikipedia is inappropriate and unreliable | Credibility upheld despite improper Wikipedia reference | Wikipedia reliance does not warrant reversal; concerns noted |
Key Cases Cited
- Mikhael v. INS, 115 F.3d 299 (5th Cir. 1997) (review of BIA/IJ decisions with deference to credibility findings)
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (substantial evidence standard for credibility and asylum withholding)
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (REAL ID Act totality of circumstances for credibility determinations)
- Roy v. Aschcroft, 389 F.3d 132 (5th Cir. 2004) (clear probability standard for withholding of removal)
- Chen v. Filip, 308 F. App’x 785 (5th Cir. 2009) (presumption of future persecution when past persecution shown)
- Tesfamichael v. Gonzales, 469 F.3d 109 (5th Cir. 2006) (extreme conduct threshold for persecution analysis in asylum cases)
- Abdel-Masieh v. I.N.S., 73 F.3d 579 (5th Cir. 1996) (detentions and non-severe beatings not per se past persecution)
- Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004) (non-severe beatings not enough for past persecution)
- Badasa v. Mukasey, 540 F.3d 909 (8th Cir. 2008) (Wikipedia reliability concerns in credibility determinations)
- Campbell v. Sec’y of Health and Human Servs., 69 F. Cl. 775 (Fed. Cl. 2006) (illustrates concerns about internet sources in adjudication)