Zhongyan Shao and Xiangsen Meng, Chinese nationals, entered the United States in 2012 on visitor visas and overstayed. They applied for asylum, withholding of removal, and protection under the Convention Against Torture, alleging that Chinese family planning officials forced Ms. Shao to undergo an abortion in 2011 and beat Mr. Meng when he tried to intervene. During their asylum interview, Mr. Meng stated the pregnancy occurred in 2006, while Ms. Shao testified it occurred in 2011. At the Immigration Judge hearing, Mr. Meng changed his story to match Ms. Shao's timeline, attributing the earlier discrepancy to nervousness. The Immigration Judge found both petitioners not credible due to these inconsistencies and the lack of authentication for their medical records, denying their applications. The Board of Immigration Appeals affirmed, finding no clear error in the credibility determination and noting the CAT claim was waived.
The Tenth Circuit reviewed the BIA's decision under the substantial evidence standard, which requires affirming the agency's factual findings unless any reasonable adjudicator would be compelled to conclude otherwise. The court addressed three primary issues. First, regarding the adverse credibility finding, the court noted that the Immigration Judge reasonably relied on the inconsistencies between Mr. Meng's initial interview statements and his later testimony, as well as discrepancies between the spouses' accounts. The court rejected the petitioners' argument that the IJ should have found Ms. Shao credible while discrediting only Mr. Meng, emphasizing that the agency assesses the credibility of applicants who file jointly and that the inconsistencies went to the heart of their claim. Second, concerning the medical records, the court upheld the BIA's exclusion of the documents. The BIA found that the petitioners failed to lay a proper foundation for the records because their testimony was deemed not credible, and they failed to authenticate the documents. The court clarified that while federal rules of evidence are not strictly applied in immigration hearings, they serve as useful guideposts, and the BIA acted within its discretion to exclude evidence lacking a foundation. Third, regarding the Convention Against Torture claim, the court found that the petitioners waived this issue because they did not challenge the Immigration Judge's denial of CAT relief in their appeal to the BIA. The court cited precedent stating that arguments not raised in an appellant's opening brief are deemed waived.
The petition for review is denied, and the removal order against the petitioners remains in effect. The decision reinforces the high bar for challenging adverse credibility findings in immigration cases and underscores the necessity for petitioners to provide authenticated documentary evidence to support their claims. It also clarifies that failure to raise specific relief claims, such as CAT protection, in the appeal to the BIA results in a waiver of those issues in federal court.
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