Guang Run Yu v. JOHN ASHCROFT, Attorney General of the United States

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0106P (6th Cir.)
File Name: 04a0106p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GUANG RUN YU,
Petitioner,
v.
JOHN ASHCROFT, Attorney
General of the United States,
Respondent.
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No. 03-3137
On Appeal from the Board of Immigration Appeals.
No. A79 690 916.
Argued: December 2, 2003
Decided and Filed: April 15, 2004
Before: SILER, DAUGHTREY, and GIBBONS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Scott E. Bratton, MARGARET WONG &
ASSOCIATES, Cleveland, Ohio, for Petitioner. James A.
Hunolt, UNITED STATES DEPARTMENT OF JUSTICE,
OFFICE OF IMMIGRATION LITIGATION, Washington,
2 Yu v. Ashcroft No. 03-3137
D.C., for Respondent. ON BRIEF: Scott E. Bratton,
MARGARET WONG & ASSOCIATES, Cleveland, Ohio,
for Petitioner. James A. Hunolt, Emily A. Radford, UNITED
STATES DEPARTMENT OF JUSTICE, OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for
Respondent.
_________________
OPINION
_________________
SILER, Circuit Judge. Petitioner Guang Run Yu appeals
his denial of asylum, arguing that the Immigration Judge (IJ)
and Board of Immigration Appeals (BIA) erred in assessing
his credibility. We AFFIRM the BIA.
FACTUAL BACKGROUND
Yu is a native citizen of China, seeking asylum based on his
alleged connection with “Falun Gong” - a movement that
blends aspects of Taoism and Buddhism with martial arts
meditation. The Chinese Government declared Falun Gong
illegal in 1999; the U.S. State Department has since
documented reports of imprisonment, “re-education” in labor
camps, torture, and death of Falun Gong participants.
According to Yu, the wife of his friend Wang was arrested
as a Falun Gong leader in 2000. Yu testified that, after the
arrest, Yang hid at Yu’s house and gave Yu four boxes of
Falun Gong material to stash. Yu claimed that he hid the
boxes in an unused kitchen cupboard, unbeknown to his wife.
Public security arrested Wang at Yu’s house in June or July
2001, but failed to search the house. Yu testified that he
burned the “most important” box in August 2001, but did not
dispose of the other three. Yu also testified that both Wang
and Wang’s wife are presently in re-education camps.

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No. 03-3137 Yu v. Ashcroft 3
1The statute refers to the A ttorney G eneral. Since the Attorney
General has delegated his imm igration authority to the BIA and IJ, we
will refer to the IJ rather than the Attorney G eneral.
Later in August 2001, Yu, ostensibly seeking to avoid the
police, traveled to Singapore, Malaysia, and Thailand without
any difficulty, and returned 10-15 days later to hide at his
sister-in-law’s house. Yu claimed that during this time his
wife and child remained at home, with the three boxes.
According to Yu, public security again searched his house
sometime in late 2001, this time seizing the remaining three
boxes and telling Yu’s wife that he was to report to the public
security office. In December 2001, Yu entered the United
States and was stopped by the INS at the Detroit Airport.
Yu testified that public security has since visited his home
often and that his wife served time in a re-education camp.
PROCEDURAL BACKGROUND
Yu conceded removability but applied for asylum,
withholding of removal, and withholding under the Torture
Convention. The IJ denied Yu’s application based solely on
lack of credibility. The BIA affirmed without opinion, and
Yu petitioned this court for review. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(1), which provides for judicial
review of all final immigration removal orders. Because the
BIA affirmed the IJ without opinion, we review the IJ
decision as the final administrative order. See, e.g., Albathani
v. INS, 318 F.3d 365, 373 (1st Cir. 2003).
STANDARD OF REVIEW
The IJ, acting for the Attorney General,1 has discretion to
grant asylum to any alien who qualifies as a “refugee.”
8 U.S.C. § 1158(a) & (b). The statute defines a refugee as an
alien who is unable or unwilling to return to his home country
“because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a
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particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). Even if the alien qualifies as a refugee, the
IJ may, in his discretion, deny asylum. 8 U.S.C. § 1158(a) &
(b). Thus, fielding a request for asylum “involves a two-step
inquiry: (1) whether the applicant qualifies as a ‘refugee’ as
defined in § 1101(a)(42)(A), and (2) whether the applicant
merits a favorable exercise of discretion by the [IJ].” Ouda v.
INS, 324 F.3d 445, 451 (6th Cir. 2003) (internal quotation
marks and citation omitted).
At the first step, we review the IJ’s factual determination as
to whether the alien qualifies as a refugee under a substantial
evidence test. The Supreme Court found that the IJ’s
determination on eligibility for asylum had to be upheld if
“supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992). The Court was directly quoting
8 U.S.C. § 1105a(a)(4), which provided that the IJ’s findings
of fact had to be supported by this type of evidence. The
Court went on to find reversal available only if “the evidence
presented by [the alien] was such that a reasonable factfinder
would have to conclude that the requisite fear of persecution
existed,” citing NLRB v. Columbian Enameling & Stamping
Co., 306 U.S. 292 (1939), a case documenting “substantial
evidence” decisions for administrative orders. Elias-
Zacarias, 502 U.S. at 481.
However, in 1996, 8 U.S.C. § 1105a(a)(4) was repealed and
replaced by 8 U.S.C. § 1252(b)(4). Nevertheless, many
circuits, including the Sixth, see Ouda, 324 F.3d at 451,
continue to cite the “supported by reasonable, substantial, and
probative evidence” language as controlling. Given that this
language was repealed, we take this opportunity to clarify the
standard of review.
Now, findings of fact are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). Courts have found that
§ 1252(b)(4)(B) basically codifies the Supreme Court’s

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No. 03-3137 Yu v. Ashcroft 5
2Our circuit has no t officially pronounced this as the official
standard, and there seems to be some confusion. In Gumbol v. INS, 815
F.2d 406 , 412 (6th Cir. 1987), the court reviewed the credibility finding
for an “abuse of discretion.” Subsequently, the Supreme Co urt in Elias-
Zacarias implied the “substantial evidence” standard is co rrect. 502 U.S.
at 481 . While mo st of our sister circuits use the “substantial evid ence”
standard, see, e.g ., Bojorques-Villanueva v. INS, 194 F.3d 14 , 15-16 (1 st
Cir. 1999); Ahmad v. INS, 163 F.3d 457, 461 (7th Cir. 1999), the Sixth
Circuit’s unpublished opinions are split. In Jarjiss v. Reno, 191 F.3d 452,
1999 W L 7761 86, at *1 (6th Cir. Sept. 20, 1999), a panel still cited
Gumbol’s“abuse of discretion” standard, while another panel in Arboleda
substantial evidence standard. See Dia v. Ashcroft, 353 F.3d
228, 247-49 (3d Cir. 2003). Thus, our jurisprudence, except
for reiteration of the of the repealed “supported by reasonable,
substantial, and probative evidence” language, remains good
law. See Ouda, 324 F.3d at 451 (finding IJ’s determination
should be upheld unless evidence “not only supports a
contrary conclusion, but indeed compels it,” and “[a]s such,
the petitioner must show that the evidence presented was so
compelling that no reasonable factfinder could fail to find the
requisite persecution or fear of persecution”) (citation
omitted); accord Mikhailevitch v. INS, 146 F.3d 384, 388
(6th Cir. 1998).
Regarding the second step, the discretionary judgment to
grant asylum to a refugee is “conclusive unless manifestly
contrary to the law and an abuse of discretion.” 8 U.S.C.
§ 1252(b)(4)(D).
DISCUSSION
Yu’s Credibility
For asylum, Yu must demonstrate that he qualifies as a
refugee by producing evidence that he has suffered past
persecution or has a well-founded fear of future persecution.
8 U.S.C. § 1101(a)(42)(A). The IJ stated he would have
granted Yu asylum, if only he had found Yu credible.
Credibility determinations are findings of fact,2 falling within
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v. INS, 2002 WL 31477862, at *2 n.3 (6th Cir. Nov. 5, 2002 ), recognized
that Elias-Zacarias changed the standard. T oda y, we officially adopt the
“substantial evidence” standard.
3Since Yu does not establish eligib ility for asylum, he does not meet
the more stringent standards required for withholding or the T orture
Convention. See Mikhailevitch, 146 F.3d at 391.
4Yu refused to sign his interview statement because he claimed the
translation produced errors. Both the Ninth and Third Circuits have
discredited the reliability of initial airport interviews as “not sufficient
standing alone” to be a reliable impeachment source because of the
conditions under which they are taken (e.g., right off the plane, translation
problems). See Singh v. INS, 292 F.3d 101 7, 10 21-2 4 (9th Cir. 2002);
accord Senathirajah v. INS, 157 F.3d 210, 217-18 (3d Cir. 1998).
Assuming, without deciding, that our sister circuits are correct, Yu still
would not prevail. The interview discrepancies in this ca se make up only
part of the IJ’s basis, and do not “stand alone.”
the first step of determining whether the alien qualifies as a
refugee. See Dia, 353 F.3d at 247. Thus, we are reviewing
the IJ’s adverse credibility determination for “substantial
evidence,” reversing only if “any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). Under this highly deferential standard, we
uphold the IJ’s decision because the IJ laid out numerous
grounds for his adverse credibility finding.3
The IJ based his decision on implausibilities and
inconsistencies, using Yu’s four separate statements taken
from his airport interview,4 asylum application, credible fear
interview, and his testimony in front of the IJ. On
implausibilities, the IJ found it farfetched that (1) Yu’s wife
did not find the four boxes (each the size of a 14-inch TV) of
Falun Gong materials stashed in the kitchen for ten months,
(2) Yu got rid of only one of the four boxes, endangering his
wife and child in the house, after the police had dragged
Wang out of Yu’s house for being a Falun Gong member, and
(3) when coming to the United States for asylum, Yu so easily

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No. 03-3137 Yu v. Ashcroft 7
exited China when the police came to arrest him at his home
a month earlier.
In addition, there are three major inconsistencies going to
the “heart of [Yu’s] asylum claim,” Valderrama v. INS, 260
F.3d 1083, 1085 (9th Cir. 2001), namely, his fear of
persecution for Falun Gong. First, Yu claimed that he
obtained visas (for Malaysia, etc.) to leave China in
August 2001, fearing persecution after Wang’s arrest in July,
but the visas were issued to him before Wang’s arrest in June.
After being called on this, Yu changed his testimony to
Wang’s arrest occurring in June rather than July. Even if this
were true, the IJ pointed out that it would be implausible for
Yu to obtain the visa instantaneously with the arrest,
especially when he acquired the visa through a third-party
travel agency. Second, Yu never mentioned Falun Gong
during his initial airport interview, but only asserted it later in
his application. Third, he initially claimed that he had never
seen a letter from his wife warning him not to return to China
because the police were looking for him, but then changed his
mind and said that he had seen it, describing its contents in
detail.
Although the other remaining discrepancies could be
characterized as minor inconsistencies “in dates which reveal
nothing about an asylum applicant’s fear for his safety” that
would be an inadequate basis for the adverse credibility
finding, Senathirajah v. INS, 157 F.3d 210, 221 (3d Cir.1998)
(quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th
Cir.1988)), their cumulative effect gives support to the other
grounds. See Mejia-Paz v. INS, 111 F.3d 720, 724 (9th Cir.
1997). These minor inconsistencies include: (1) the days Yu
spent in Singapore, Malaysia, and Thailand (Yu said 10 days,
but the documents read 15 days), (2) the time he started
participating in Falun Gong (application read 1999, but Yu
testified that he participated in 1996 and joined the
organization in 1999), and (3) the month the police
apprehended Wang at Yu’s house (he switched from July to
June). Taking all these implausibilities and inconsistencies
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together, we find substantial evidence supporting the IJ’s
reservations about Yu’s credibility.
Yu has many explanations. For example, he claims that it
is not implausible that his wife would not find the boxes
because the kitchen cupboard was never used, that he did not
destroy the other three boxes because they would not burn,
and that he easily left the country because there was no
“official written” warrant for his arrest until February 2002.
Yu’s explanations provide some support against the IJ’s
adverse credibility determination, but there is nothing in Yu’s
explanations that meet the high standard of compelling a
contrary result. The IJ justified his determination with several
grounds in the record and found that Yu often turned “on a
dime in his testimony.” Although some of the IJ’s grounds
seem weak when the discrepancies are viewed in the context
of the surrounding record, we cannot say that a “reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B); see also Elias-Zacarias, 502 U.S.
at 483-84.
AFFIRMED.

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