Ni, Ji Cheng v. Gonzales, Alberto R.
134 F. App'x 977
7th Cir.
2005
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Docket

Ji Cheng NI, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-2677

United States Court of Appeals, Seventh Circuit

Submitted March 29, 2005. Decided June 20, 2005.

413 F.3d 977

fore, the BIA) did not err. Section 1229a(c)(5)(C) provides: “The motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.” See also (motions to reconsider should be grounded in “‘additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked,‘” quoting ). Garcia‘s motion to reconsider does not even identify an error in the IJ‘s earlier opinion, let alone support an argument for reversal. It simply introduces a psychological assessment that Garcia claims was not available to the IJ when the IJ denied his motion to reopen.

For this reason, as the IJ recognized, the “motion to reconsider” more closely resembles a statutory “motion to reopen,” which requires “new facts” and must be “supported by affidavits or other evidentiary material.” § 1229a(c)(6)(B); see also ; . But Garcia would not have been helped by recharacterization of the motion, as the IJ also recognized, because as a motion to reopen, it would have run afoul of the numerical limitation on motions to reopen in § 1229a(c)(6)(A). See .

The BIA did not abuse its discretion in denying the motion to reconsider. Consequently, the petition for review is DENIED.

We granted the petitioner‘s motion to waive oral argument. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P. 34(a), (f).*

Pengtian Ma, Chicago, IL, for Petitioner.

Randolph L. Hutter, Department of Justice Tax Division, Appellate Section, Washington, DC, Karen Lundgren, Department of Homeland Security Office of the District Counsel, Chicago, IL, for Respondent.

Before CUDAHY, WOOD, and SYKES, Circuit Judges.

ORDER

Ji Cheng Ni, a native of China‘s Fujian Province, entered the United States without documentation in 2001. Upon his arrival at Los Angeles International Airport (“LAX“), an asylum officer determined that he was removable but had a credible fear of persecution or torture if returned to China. An Immigration Judge subsequently found his testimony of persecution incredible and ordered him removed to China. Ni appealed to the Board of Immigration Appeals, which summarily affirmed the IJ‘s decision. Ni petitions for review of the BIA‘s order. We affirm.

Ni, who left China at the age of 21, arrived at LAX after snakeheads first arranged his travel through Hong Kong, Indonesia, and Australia. At his credible-fear interview, he gave a sworn statement, through an interpreter, that the Chinese authorities closed his bookstore and that he feared persecution for selling Falun Gong material. During the same interview, however, he also said that he had never been employed. Attempting to verify his story, the asylum officer called a phone number in China that Ni had given as his home number, and an individual identified as Ni‘s father answered. When asked through an interpreter if Ni “ever owned a store of any kind,” Ni‘s father reportedly replied, “[n]o, my son does not own a store.” Confronted with this apparent inconsistency, Ni then stated that he had not owned a bookstore and that he came to the United States to seek employment.

Ni subsequently applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT“), asserting a fear of persecution based on political opinion and specifically his sale of Falun Gong material. In that application, Ni alleged that he “operated a store” where the police discovered he was selling “Falungon [sic] stuff.” He went on to generally state that the police tried to arrest him, but that neither he nor his family had actually been “accused, charged, arrested, detained, interrogated, convicted and sentenced, or imprisoned” in China.

At his removal hearing before the IJ, Ni recounted a different set of facts. He revealed that his sister lived illegally in Maryland, contrary to a sworn statement at the credible-fear interview that none of his relatives resided in the United States. He also testified that the police arrested his parents and held them for ten days while investigating their ties to Falun Gong, even though he explicitly denied in his asylum application that family members had even been arrested or detained. Finally, he testified that he had lied to the asylum officer at his credible-fear interview when he told the officer that he feared arrest in China for impregnating his girlfriend. Ni added, “I was nervous and I was taught by the snakeheads what to say.”

The IJ denied Ni‘s application for asylum, largely on the basis of an implicit adverse credibility finding. The IJ point-ed to Ni‘s inconsistent accounts of his employment history in China and the alleged arrest and detention of his parents. The IJ also faulted Ni for not providing any corroborating evidence, such as a statement from his father or sister confirming that he sold Falun Gong material. Finally, the IJ noted other inconsistencies in Ni‘s statements, including the apocryphal pregnancy of a girlfriend and his sister‘s residency in the United States. The BIA summarily affirmed the IJ‘s opinion.

When, as it did here, the BIA adopts the decision of the IJ, that decision becomes the final decision of the agency and will be affirmed if it is supported by substantial evidence. .

We will give substantial deference to an IJ‘s adverse credibility finding that is supported by “specific, cogent reasons” that “bear a legitimate nexus to the finding.” (citations omitted). Moreover, only “extraordinary circumstances” warrant overturning a credibility finding, and reversal is not justified “simply because an alternate finding could also be supported by substantial evidence.” See (internal quotation marks and citation omitted).

On appeal Ni challenges only the IJ‘s denial of asylum and thus abandons any arguments for withholding of removal and for relief under the CAT. See . In a cursory argument, Ni first challenges the IJ‘s adverse credibility finding, asserting that the IJ overemphasized “minor inconsistencies” that “were sufficiently explained in other parts of the testimony.” Ni suggests, for example, that varying understandings of words like “employment,” “operated,” and “own” could explain his changing account regarding ownership of a bookstore.

The IJ, however, properly supported the adverse credibility finding. In addition to questioning whether Ni actually sold Falun Gong material, the IJ expressed skepticism regarding Ni‘s job history in China and highlighted Ni‘s inconsistent statements regarding the alleged arrest and detention of his parents and the reason he came to the United States. Although translation difficulties can account for some inconsistencies in an alien‘s testimony, see , Ni does not explain the numerous inconsistencies (beyond whether he sold Falun Gong materials) among the accounts given in his statement, application, and testimony. Indeed, “lying in a sworn statement is not irrelevant to credibility.” See (upholding IJ‘s adverse credibility finding when alien changed story after initial sworn statement; changes related to basis for asylum and original misstatements “were calculated attempts to mislead the immigration officials“). The IJ‘s adverse credibility finding—far from relying on minor inconsistencies—is supported by specific and cogent reasons.

Ni‘s second argument is that the IJ erred by basing the adverse credibility finding on a lack of corroborating evidence. It is true that “the testimony of the alien alone may be sufficient to sustain the burden of proof without corroboration.” (internal quotation marks and citation omitted). But Ni mistakenly presumes that a lack of corroboration compelled the IJ‘s adverse credibility finding. To the contrary, the IJ explained that Ni‘s “story here before the Court is negated by [inconsistencies in] a sworn statement” and “his own application for asylum.”

Finally, Ni raises the frivolous argument that the IJ improperly credited the state-ment of the individual alleged to be his father without confirming the man‘s identity. Ni has not suggested to date that the individual in question was not his father, but even if the IJ erred in crediting the alleged father‘s statement (and it is not clear from his order that he did), the notable inconsistencies upon which the IJ relied in discrediting Ni justify the denial of his asylum application.

The decision of the BIA is AFFIRMED. The petition for review is DENIED.

Notes

*
We granted the petitioner‘s motion to waive oral argument. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P. 34(a), (f).