Htun v. Lynch, 2016 U.S. App. LEXIS 6460

Kyaw Myat Htun, a Burmese national, entered the U.S. on an F-1 visa in 2002, remained past authorized stay, and applied for asylum, withholding, and CAT relief in 2003 based on political-opinion claims arising from student protests in Burma.
At initial proceedings the IJ found Htun credible enough (supported by witness Tun Tun Oo) to grant asylum based on a well-founded fear of future persecution; DHS moved to reopen based on undisclosed material information.
On reopening, Htun admitted he had committed marriage fraud (married a U.S. citizen to obtain immigration benefits and later divorced) and that his witness Oo was his employee — facts not disclosed earlier.
At the second hearing the IJ found numerous inconsistencies in Htun’s testimony (reasons for his father’s arrests, ability to enter/exit Burma repeatedly without arrest, failure to disclose relationship with witness) and concluded Htun lacked credibility; IJ denied asylum as a matter of discretion and denied withholding and CAT relief.
The BIA affirmed, independently weighing favorable equities (U.S. citizen daughter, business ownership, long residence) against adverse factors (marriage fraud, guilty plea to disorderly conduct, credibility findings) and dismissed Htun’s appeal.
The Tenth Circuit reviewed the BIA decision, deferred to IJ credibility findings under substantial-evidence review, and denied Htun’s petition for review.

Issue	Htun's Argument	DHS/BIA/IJ Argument	Held
Whether the BIA/IJ’s adverse credibility finding was unsupported	Htun argued the BIA abused discretion; pre-REAL ID Act presumption of credibility should favor him	IJ and BIA argued record contained multiple inconsistencies and nondisclosures that negate credibility	Court affirmed: substantial evidence supports adverse credibility finding
Whether asylum should have been granted in exercise of discretion	Htun argued BIA improperly relied solely on marriage fraud and should have weighed positives more heavily	BIA considered totality (positive and negative factors), treating marriage fraud as a significant negative factor among others	Court held BIA did not abuse discretion in denying asylum on balance of equities
Whether withholding of removal was warranted (clear probability standard)	Htun argued past detentions and incidents establish persecution risk	DHS/BIA noted incidents were not severe, Htun repeatedly entered/left Burma without arrest, and no showing of current risk	Court held substantial evidence supports denial of withholding of removal
Whether CAT protection applies (more likely than not tortured)	Htun claimed risk of arrest, imprisonment, harassment, and targeting of family	DHS/BIA found no evidence of torture or likelihood of severe pain or suffering inflicted by public officials	Court held Htun failed to meet CAT burden

Ritonga v. Holder, 633 F.3d 971 (10th Cir.) (scope of review governed by form of BIA decision)
Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006) (review limited to grounds relied on by BIA; may consult IJ’s explanation)
Kapcia v. INS, 944 F.2d 702 (10th Cir.) (two-step asylum analysis: refugee eligibility then discretionary grant reviewed for abuse of discretion)
Kabba v. Mukasey, 530 F.3d 1239 (10th Cir.) (IJ credibility findings are factual and entitled to deference)
Estrada-Escobar v. Ashcroft, 376 F.3d 1042 (10th Cir.) (adverse credibility reversal requires that any reasonable adjudicator be compelled to conclude otherwise)
Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir.) (examples of more severe past mistreatment still found not to constitute persecution)
Woldemeskel v. INS, 257 F.3d 1185 (10th Cir.) (definition and threshold for persecution)
Ismaiel v. Mukasey, 516 F.3d 1198 (10th Cir.) (CAT factual determinations reviewed for substantial evidence)