Zhongwei Liu, et al v. U.S. Attorney General

22-11778Court of Appeals for the Eleventh CircuitMar 19, 2024

Full text

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11778
Non-Argument Calendar
____________________
ZHONGWEI LIU,
a.k.a. Tomm Hall Ingod,
ZELI WANG,
a.k.a. Ivy E. Ingod,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
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2 Opinion of the Court 22-11778
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-060-691
____________________
Before L AGOA , BRASHER , and TJOFLAT, Circuit Judges.
PER CURIAM:
Pro se petitioners Tomm Hall Ingod and Ivy E. Ingod seek
review of the Board of Immigration Appeals’s (BIA) final removal
order.1 The BIA affirmed the Immigration Judge’s (IJ) denial of the
Ingods’ application for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The Ingods seek review for two reasons. First, they argue that the
BIA erroneously affirmed the IJ’s decision because the IJ violated
their due process rights. Second, they assert that the BIA errone-
ously affirmed the IJ’s finding that the Ingods failed to establish that
they are eligible for asylum, withholding of removal, and CAT re-
lief. For the reasons below, the Ingods’ petition is denied.
I. Background
Around August 27, 2012, Mr. Ingod was admitted into the
United States with a transit visa and was allowed to remain until
1 The BIA accepted the petitioners’ assertion that their names have been le-
gally changed. We therefore refer to the lead petitioner as Mr. Ingod, the
co-petitioner, and derivative beneficiary, as Mrs. Ingod, and the petitioners
collectively, as the Ingods.
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22-11778 Opinion of the Court 3
September 25, 2012. Mrs. Ingod was also admitted into the United
States as a nonimmigrant visitor. She was allowed to remain in the
United States until February 26, 2013. Both stayed past the permit-
ted time. The Department of Homeland Security served the
Ingods with Notices to Appear and charged them as removable un-
der the Immigration and Nationality Act (INA) § 237(a)(1)(B),
8 U.S.C. § 1227(a)(1)(B).2
A. Asylum, Withholding of Removal, and CAT Applications
On August 19, 2013, Mr. Ingod filed a pro se application for
asylum, withholding of removal, and CAT relief. He stated that he
was born in Mongolia and was a Chinese citizen. He also stated
that Mrs. Ingod was born in India and was solely a Chinese citizen.
Mr. Ingod asserted that he was seeking asylum and with-
holding of removal based on his nationality and political opinions,
as well as CAT relief. According to his application, Mr. Ingod’s sis-
ter went missing during the 1989 Tiananmen Square Massacre. He
explained that his family decided to produce a film in memory of
his sister and the Tiananmen Square Massacre. As a result, he
claimed that the Chinese police—prompted by the Li Peng Political
Establishment (LPPE)3—attempted to detain him in January 2012.
2 Under 8 U.S.C. § 1227(a)(1)(B), “[a]ny alien who is present in the United
States in violation of [the INA] or any other law of the United States . . . is
deportable.”
3 Per Mr. Ingod, the “LPPE is a Chinese political group founded and led by Li
Peng, the former Chinese Prime Minister who [was] dubbed the ‘Butcher of
Beijing’ for his role in the Tiananmen Square Massacre.”
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4 Opinion of the Court 22-11778
Mr. Ingod also explained that he feared harm or mistreat-
ment if he returned to China. After the Ingods fled China to Fiji,
the Chinese government charged Mr. Ingod with “inciting subver-
sion of state power.” And when the Ingods left for America, the
Chinese government charged Mr. Ingod with “espionage.” If he
returned to China, Mr. Ingod explained that he would be arrested
on these charges and physically and psychologically tortured in
prison. He stated that he would be especially vulnerable in prison
because of his political views and because his parents were Japa-
nese—whom the Chinese people have historically hated. Addition-
ally, Mr. Ingod noted that Chinese authorities froze his bank ac-
counts.
B. IJ Hearings
In 2013, the Ingods first appeared before an IJ in New York.
Mr. Ingod confirmed that he was a Mongolian native and a Chinese
citizen. He also conceded removability as charged, but he declined
to designate a country of removal. Mrs. Ingod confirmed that she
was an Indian native and a Chinese citizen, and she conceded re-
movability as charged. Like Mr. Ingod, she too declined to desig-
nate a country of removal.
In 2017, after the Ingods moved to Florida, they appeared
before a different IJ.4 When the IJ explained the duty to submit
evidence supporting his claim, Mr. Ingod replied that it was “not
4 The case was transferred from New York to Miami on January 30, 2017, in
response to the Ingods’ motion for a change of venue.
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22-11778 Opinion of the Court 5
possible to get evidence” of his sister’s death or possible detention.
The IJ set a merits hearing for July 2018 so the Ingods could testify
and provide evidence.
Before the merits hearing, Mr. Ingod submitted a written
statement and provided the following new information. After the
Ingods fled to Fiji in 2011, based on a perceived threat, someone
from China followed them and attempted to poison Mr. Ingod in
July 2012. Mr. Ingod also included details about the evidence that
the Chinese authorities based the charges against him on, including
making the film. He noted that he received a death threat from
China in 2014 and that his father would fake Mr. Ingod’s death to
help him escape the danger. Mr. Ingod also suggested that his fa-
ther’s suicide in 2017 might have been an effort to convince the
Chinese authorities of his own death.
At the merits hearing, the IJ told Mr. Ingod that because he
was proceeding pro se, she and the Government would ask him
questions. The IJ also explained that she would give Mr. Ingod a
chance to add anything he felt was important at the end of the hear-
ing. Mr. Ingod confirmed that he understood this. Mr. Ingod’s tes-
timony generally covered four categories: (1) his citizenship, (2) his
business and activities in China prior to fleeing, (3) his sister’s death
and the film, and (4) the Chinese government’s actions and charges
levied against him.
As to his citizenship, Mr. Ingod denied being a Mongolian
citizen but confirmed that he was a Chinese citizen. And he con-
firmed that Mrs. Ingod was an Indian native. As for his business
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6 Opinion of the Court 22-11778
and activities in China, Mr. Ingod testified that he ran translation
and casino services. His casino service helped wealthy Chinese
people find casinos, hotels, and dates, and provided them body-
guards abroad. When asked if he had proof that he owned these
businesses, Mr. Ingod explained that his records were seized by the
Chinese authorities in November 2011 in retaliation for the film—
which he also had no documentary evidence of.
Mr. Ingod then elaborated that the 2011 seizure happened
while he was on a trip in the Philippines. A community member
notified Mr. Ingod about the search and told him that his safe was
opened. Upon his return, Mr. Ingod discovered that his certificates
of deposit were missing. And when he reported the theft to his
bank, he was told that his accounts were frozen. He later learned
from a client at a different bank that the police froze his account
due to his connection with suspected criminal activities.
Mr. Ingod then testified about the period directly after he
and Mrs. Ingod fled China. The Ingods first went to Fiji, where
they spent 286 days. When asked why he did not go to Mongolia,
Mr. Ingod explained that he had no connections there though he
admitted his father was vacationing in Mongolia at the time. He
also stated that he did not apply for asylum in Mongolia while in
Fiji because he planned to return to China. He testified that they
did not consider going to India because Mrs. Ingod’s family had
“given up everything in India,” and that, in the eyes of the Chinese
government, the part of India that she was from was part of China.
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Mr. Ingod also stated that he originally intended to travel
through the United States to Canada for business. When the IJ
asked why the Ingods did not ultimately go to Canada, Mr. Ingod
first said because his customer canceled but then said “because it’s
too cold.” However, when the IJ noted that Mr. Ingod was admit-
ted to the United States with a transit visa in August 2012,
Mr. Ingod clarified that he wanted to go to Canada for business,
not as a refugee. Later, Mr. Ingod admitted that he used the transit
visa to enter and stay in the United States.
As to his sister, Mr. Ingod reiterated that she had gone miss-
ing during the Tiananmen Square Massacre, but his family had
never received any official paperwork regarding her death. He did
not believe that his sister had been arrested. As for the film,
Mr. Ingod testified that although he had not started filming, he had
a script; however, he did not have a copy because he paid a writer
in Beijing to write it. Mr. Ingod explained that he got ahold of the
writer through his “best business partner, a billionaire in Qing-
dao.”5 He also suggested that the writer might be in a labor camp
and may have told the authorities about the film. The IJ then asked
Mr. Ingod why he would make such a sensitive movie and why he
would hire a writer in China, given the risks. Mr. Ingod responded
5 Mr. Ingod declined to disclose the identity of his business partner because the
hearing was being recorded and he did not want the Chinese government to
uncover his identity. Mr. Ingod later explained that he met his business part-
ner when he was in college and the partner offered to finance Mr. Ingod’s pa-
tent for a Bluetooth-like device in 1993. He later attempted to help his busi-
ness partner donate to the Dalai Lama’s university in 2006.
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8 Opinion of the Court 22-11778
that when he decided to make the film, the political situation in
China had “changed dramatically” and he hired a Chinese writer as
a matter of trust and cost.
Last, Mr. Ingod spoke about the charges against him. He
testified that he was officially charged with espionage but did not
have any supporting proof. He later stated that he confirmed the
charges against him before filing his asylum application. When
asked why he was charged with espionage, Mr. Ingod explained
that it was because he helped translate documents for a South Ko-
rean NGO, One Nation, which supported North Korean refugees
in China. Per Mr. Ingod, One Nation operated out of a coffee shop
without the Chinese government’s knowledge. Mr. Ingod did not
have documentation confirming his work for One Nation, yet he
later testified that he had files on his computer. He added that the
Chinese government knew that he had sensitive information about
the North Korean refugees that he had given to the United Nations
High Commissioner for Refugees (UNHCR). After twice visiting
the UNHCR’s office in Thailand, a local police officer called
Mr. Ingod to ask about his visits. As a result, Mr. Ingod believed he
was put on a watchlist.
During the Government’s examination, Mr. Ingod testified
that he had not sought documentation from Mongolia about his
citizenship. He also repeated that Mrs. Ingod was not an Indian
citizen and that she had not sought paperwork to support this as-
sertion. When asked why he did not seek asylum in Japan given
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22-11778 Opinion of the Court 9
his ethnicity, Mr. Ingod explained that he lacked “direct connec-
tions” with Japan.
Mr. Ingod then described, for the first time in the hearing,
that he was poisoned in Fiji in the month before he left. He stated
that a blood test confirmed that someone had poisoned him, but
he had no proof of this. He did not report the attack to the Fijian
police because he believed they would report it to the Chinese em-
bassy. He also stated that he did not report the attack in his asylum
application because he could not confirm who was responsible at
the time.
Mr. Ingod also testified, for the first time, that he had ille-
gally visited Zhao Ziyang—“the leader of China in 1989.” At the
time, Zhao was under house arrest as a “political prisoner” because
of his support “of the student movement” during the Tiananmen
Square Massacre. Although Mr. Ingod visited Zhao in 2004, he
confirmed that he did not have any problems with the Chinese gov-
ernment until 2011.
Mr. Ingod concluded his testimony by discussing his name
change. He explained that he would not have changed his name if
he did not face a “serious threat.” Mr. Ingod submitted the court
order granting him leave to change his name but admitted that he
did not publish his name change. The IJ then informed Mr. Ingod
that because he had not followed the required procedure, he had
not legally changed his name.
Mrs. Ingod then testified to the following. She confirmed
much of Mr. Ingod’s testimony, including how they fled China and
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10 Opinion of the Court 22-11778
how the police searched their home. At Mr. Ingod’s prompting,
she corroborated Mr. Ingod’s allegation that he had been poisoned
while in Fiji. Also, at her husband’s prompting, Mrs. Ingod testified
that Mr. Ingod received a death threat from who she assumed was
“the Chinese security agency.” The Ingods were in the United
States when the threat occurred and learned of the threat from
Mr. Ingod’s father over the phone.
C. The IJ’s Decision
The IJ then issued an oral decision. The IJ first noted that
the Ingods had not designated countries of removal. The IJ there-
fore designated Mongolia for Mr. Ingod and India for Mrs. Ingod,
with China as the alternative for both.
After recounting the Ingods’ testimony at the hearing, the IJ
found that Mr. Ingod’s testimony conflicted with his application for
asylum to the extent that it added several other activities and situ-
ations that were never covered in his initial application. For exam-
ple, the IJ noted that Mr. Ingod’s application did not include infor-
mation about how he had been poisoned in Fiji and how this
caused him to decide to come to the United States. The IJ also ex-
plained that Mr. Ingod’s testimony about these events was “vague
and confusing.”
The IJ further found that, although Mr. Ingod claimed to
have done things that would have infuriated the Chinese govern-
ment—including meeting with Zhao while under house arrest in
2004 and meeting with the Dalai Lama in 2006—he also acknowl-
edged that he had the tacit approval of the Chinese government to
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22-11778 Opinion of the Court 11
travel as he wished between China and other countries, to make
money and establish businesses, and to cater to Chinese million-
aires and officials outside the country. The IJ determined that
Mr. Ingod’s “claims that he engaged in what could be seen sedi-
tious activity in 2004, 2006, et cetera, but did not have any prob-
lems until 2011” was neither persuasive nor credible. Because
Mr. Ingod testified that his bank accounts had been frozen because
of suspected criminal activities, the IJ concluded that Mr. Ingod
failed to meet his burden that he feared persecution on account of
a protected ground.
The IJ also found that Mr. Ingod failed to meet his burden
under the REAL ID Act,6 as he failed to establish testimony that
was persuasive and specific enough to establish the facts or corrob-
orate his claims. The IJ found that Mr. Ingod failed to corroborate
or provide any documentation as to: (1) his claims about his con-
tact with the Dalai Lama; (2) his claim that he was poisoned; and
(3) proof of his businesses, including the ones he operated outside
of China. The IJ noted that this proof could have been obtained
from outside of China.
As to Mr. Ingod’s statement about his father, the IJ noted the
discrepancy between Mr. Ingod’s written statement, in which he
stated that his father’s suicide “might have been an effort to
6 As explained in Section III.B, under the REAL ID Act, “[t]he burden of proof
is on the applicant to establish that the applicant is a refugee” through credible
testimony or other evidence in record. See 8 U.S.C. § 1158(b)(1)(B)(i)–(iii);
see also id. § 1231(b)(3)(C).
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12 Opinion of the Court 22-11778
convince the Chinese authorities of [Mr. Ingod’s] ‘accidental death’
abroad,” and his testimony that his father emailed him indicating
to him that that was his intention. The IJ noted that Mr. Ingod did
not produce the email, later stated that it was a phone call, and then
explained that it was an unsent email draft in his father’s account,
which he had access to.
The IJ characterized Mr. Ingod’s story as “a confusing web
of reasons and events that make . . . the story [look] more as fiction
than as fact.” And the IJ found that Mr. Ingod provided no evi-
dence that he was making the film, or why his father—who was
also involved with making the film—was not harmed by the Chi-
nese government. The IJ determined that Mr. Ingod had not
shown that anything he feared in China was because of any im-
puted political opinion, rather than any criminal activity that he
may have been involved in or in connection to his businesses.
The IJ concluded that the Ingods were ineligible for asylum
and for withholding of removal. As to CAT relief, the IJ found that
Mr. Ingod had failed to establish by credible, persuasive, and spe-
cific testimony that it was more likely than not that he would be
subject to torture “by a public official or with his or her acquies-
cence.” The IJ therefore denied the Ingods’ applications and or-
dered them to be removed.
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D. Appeal to the BIA
In August 2018, the Ingods appealed the IJ’s decision to the
BIA where Mr. Ingod made multiple arguments.7 First, Mr. Ingod
argued that the IJ erred in designating Mongolia and India as the
countries of removal. He asserted that there was no evidence that
he and Mrs. Ingod were “subject[s], national[s], or citizen[s]” of
Mongolia and India. Mr. Ingod further argued that he was not al-
lowed to address his fear of prosecution in Mongolia or why India
was not a suitable county of removal for Mrs. Ingod.
Second, Mr. Ingod argued that the IJ misread the state court
order giving the Ingods leave to change their names. He con-
tended that the IJ was mistaken that the name changes were inef-
fective until newspaper publication because that is not required
when a name change is for personal safety reasons. According to
Mr. Ingod, the IJ’s mistaken belief led to her refusal to believe any-
thing else from him. He added that the IJ repeatedly expressed
skepticism and “constantly cut off his attempt to establish testi-
mony,” which prevented him “from fairly presenting [his] case in
court.”
Third, Mr. Ingod claimed that the IJ made self-contradictory
statements. Mr. Ingod noted that the IJ acknowledged that he had
mentioned in his asylum application how his movie “infuriated the
LPPE,” but later stated that Mr. Ingod only raised that fact in his
7 Mr. Ingod’s brief to the BIA makes more than thirteen arguments (or what
he refers to as “chapters”). His arguments have been consolidated for brevity
and clarity.
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14 Opinion of the Court 22-11778
written statement submitted on the date of his hearing. The IJ’s
contradiction, according to Mr. Ingod, “might render her [d]ecision
meaningless.”
Fourth, Mr. Ingod argued that the IJ should have disquali-
fied herself from his hearing. He claimed that the IJ “obviously had
very little experience in hearing political asylum seekers from
Asia,” and “frankly had limited knowledge of the Chinese society,
politics, and culture,” which led to her having difficulty with his
case.
Fifth, Mr. Ingod argued that the IJ “lied” in her factual find-
ings. He alleged that the IJ lied in five instances: (1) finding that
Mr. Ingod did not provide any details of the death threat against
him in China; (2) finding that Mrs. Ingod’s testimony about the poi-
soning was guided by his leading questions, from which the IJ fab-
ricated discrepancies by omitting consistent details from his own
testimony; (3) confusing a 2014 phone call from his father about a
death threat with a 2017 email draft about his father’s suicide;
(4) the IJ’s knowledge of the Tiananmen Square Massacre; and
(5) finding that Mr. Ingod already testified that Zhao had promised
to give him a quarter of his assets for making the movie.
Sixth, Mr. Ingod contended that the IJ “falsified” his oral tes-
timony in three instances: (1) when she wrongly stated that he had
testified that he had no money; (2) when she stated that he had
identified the writer of the script as alerting the Chinese authorities,
rather than the LPPE; and (3) when the IJ inaccurately stated that
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22-11778 Opinion of the Court 15
he had testified that he was convinced that his sister had been ar-
rested.
Seventh, Mr. Ingod argued that the IJ made misleading state-
ments in her decision. He offered four examples: (1) when the IJ
stated that he did not have any proof or any information about
what had happened to his sister; (2) when the IJ stated that he failed
to explain his 2012 poisoning by Chinese officials in his asylum ap-
plication; (3) when the IJ noted that Mr. Ingod appeared to have
been engaged in what could have been seen as seditious activity in
2004 and 2006, and yet had no issues until 2011; and (4) when the
IJ concluded that he had provided no explanation for why he could
travel in and out of China.
Eighth, Mr. Ingod alleged that the IJ made six clearly erro-
neous factual determinations. The errors included the IJ’s state-
ments that Mr. Ingod: (1) visited Zhao in prison; (2) stayed in Thai-
land for one day in 2011; (3) had an antiques business; (4) testified
that his mother was Indian with Tibetan parents; (5) had been poi-
soned in China; and (6) had renewed his work permit in Fiji.
Last, Mr. Ingod reiterated that the IJ denied him a full and
fair hearing and contended that the IJ requested either nonexistent
or unavailable corroborating evidence to prove his lack of evidence
to justify her denial of his claim. He suggested that the IJ “over-
zealously [mined] non-existent inconsistencies and evidence for her
adverse credibility finding, which reveal[ed] her intent to attack
[his] credibility.” And he accused the IJ of insinuating, based on the
lack of corroborating evidence of his assorted businesses, that he
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16 Opinion of the Court 22-11778
got rich in China illegally. Mr. Ingod concluded by accusing the IJ
of being under the influence of medication, based on her appear-
ance and temperament at the hearing.
E. The BIA’s Decision
On May 3, 2022, the BIA dismissed the Ingods’ appeal. The
BIA noted that, for purposes of the appeal, it accepted the Ingods’
assertion that they had legally changed their names. It therefore
found that the issue did not affect the IJ’s burden-of-proof rulings.
Then the BIA rejected Mr. Ingod’s assertion that the IJ should have
disqualified herself from the case. The BIA reasoned that the IJ’s
comment about “having difficulty” did not suggest that the IJ was
unqualified to hear the case. Instead, the IJ’s comment was made
after she asked a clarifying question about why Mr. Ingod hired a
Chinese scriptwriter. The BIA also rejected Mr. Ingod’s assertion
that the IJ was under the influence because that allegation was
“wholly unsupported by the record.”
The BIA further rejected the Ingods’ assertions that the IJ
“lied,” “falsified” Mr. Ingod’s testimony, “made misleading state-
ments” to deny his application, or lacked neutrality. Instead, the
BIA concluded that the IJ acted within her authority and that the
Ingods received a full and fair hearing.
The BIA also agreed with the IJ that Mr. Ingod did not satisfy
his burden of proof through persuasive testimony. And it noted
that the IJ did not make an adverse credibility finding. As to his
claim of past persecution, the BIA recounted Mr. Ingod’s testimony
and found that the record supported the IJ’s determination that
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22-11778 Opinion of the Court 17
Mr. Ingod’s testimony was inconsistent with his asylum applica-
tion. It noted that Mr. Ingod testified that the movie idea was his
alone, but his application had stated that his family decided to pro-
duce the film. The BIA also explained that Mr. Ingod’s application
did not describe his secret actions in support of One Nation, his
contact with the Dalai Lama, or his claimed poisoning by the Chi-
nese government in Fiji. And the BIA concluded that IJ permissibly
found that Mr. Ingod’s “ability to travel in and out of China and
operate several businesses was inconsistent with his testimony that
his political actions subjected him to persecution by the Chinese
government.” The BIA thus affirmed the IJ’s finding that
Mr. Ingod’s testimony was insufficiently persuasive to meet his
burden of proof.
The BIA also found that the IJ appropriately required
Mr. Ingod to submit corroborating evidence to meet his burden of
proof. It agreed with the IJ that Mr. Ingod failed to provide evi-
dence corroborating: (1) his claimed contact with the Dalai Lama;
(2) his poisoning and medical treatment; and (3) his businesses.
The BIA declined to disturb the IJ’s finding that Mr. Ingod failed to
persuasively explain why he could not submit the alleged email
from his father about his true intentions to commit suicide. Alt-
hough the BIA acknowledged Mr. Ingod’s argument that it was
hard to find evidence between 1989 and 2004, it found that the IJ
reasonably concluded those records were reasonably available.
The BIA therefore affirmed the IJ’s denial of the Ingod’s asylum,
withholding of removal, and CAT applications.
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18 Opinion of the Court 22-11778
Finally, the BIA held that the IJ properly designated Mongo-
lia and India as the primary countries of removal, and China as an
alternative. The BIA refused to disturb the IJ’s finding that the
Ingods provided insufficient corroborating evidence to support
their claim that they did not derive citizenship by being born in
Mongolia and India. The BIA also rejected the Ingods’ argument
that they were not allowed to explain why Mongolia and India
were not suitable countries of removal. It reasoned that the Ingods
did not establish prima facie eligibility for asylum relief and with-
holding of removal with respect to either country. And the BIA
noted that it was undisputed that the Ingods were Chinese citizens,
thereby making China an appropriate alternative. The Ingods
timely petitioned for review.
II. Legal Standards
A few standards of review govern this case. “We review con-
stitutional challenges de novo.” Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003) (per curiam). “We review the
BIA’s decision as the final judgment, unless the BIA expressly
adopted the IJ’s decision.” Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,
403 (11th Cir. 2016) (per curiam). “Where the BIA agrees with the
IJ’s reasoning, we review the decisions of both the BIA and IJ to the
extent of the agreement.” Id.
We review legal issues de novo, including whether the BIA
afforded a petition “reasoned consideration,” and we review the
BIA’s factual findings for substantial evidence. Ali v. U.S. Att’y Gen.,
931 F.3d 1327, 1333 (11th Cir. 2019). “Under the substantial
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22-11778 Opinion of the Court 19
evidence standard, we ‘view the record evidence in the light most
favorable to the agency’s decision and draw all reasonable infer-
ences in favor of that decision.’” Rodriguez v. U.S. Att’y Gen.,
735 F.3d 1302, 1308 (11th Cir. 2013) (per curiam) (quoting Adefemi
v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc)). “We may
reverse the BIA’s factual findings only when the record compels a
reversal.” Id.; 8 U.S.C. § 1252(b)(4)(B). And we liberally construe
pleadings from pro se petitioners. See Ali, 931 F.3d at 1331 n.2.
III. Discussion
The Ingods repeat many of the arguments they made to the
BIA. Those arguments fall into two categories: (1) due process vi-
olations and (2) a lack of substantial evidence. We address each in
turn.
A. Due Process
The Ingods make several due process arguments related to
the proceedings before the IJ and BIA. To begin, they appear to
argue that the BIA failed to give reasoned consideration to their
due process arguments. As to the merits, they first argue that the
IJ violated Mr. Ingod’s due process rights because the Ingods were
not given notice that they could be removed to Mongolia and India.
The Ingods also make generalized due process arguments, includ-
ing that the IJ: (1) failed to appropriately explain the merits hearing
process, (2) did not allow Mr. Ingod to testify in narrative form, and
(3) was inappropriately influenced by the assumption that the
Ingods fraudulently changed their names.
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20 Opinion of the Court 22-11778
i. Reasoned Consideration
We start with the Ingods’ reasoned consideration argument.
“To enable our review, the [BIA] must ‘give “reasoned considera-
tion”’ to an applicant’s claims and ‘make adequate findings.’” Ali,
931 F.3d at 1333 (quoting Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374
(11th Cir. 2006)). Reasoned-consideration examination is a thresh-
old determination on whether the BIA “reached a decision only af-
ter having evaluated the entire evidentiary record.” Id. To do so,
the BIA must draft a decision that shows it has “consider[ed] the
issues raised and announce[d] its decision in terms sufficient to en-
able a reviewing court to perceive that it has heard and thought and
not merely reacted.” Tan, 446 F.3d at 1374 (quoting Verga-Molina v.
INS, 956 F.2d 682, 685 (7th Cir. 1992)). Although “the agency is
required to consider all the evidence that a petitioner has submit-
ted, it ‘need not address specifically each claim the petitioner made
or each piece of evidence the petitioner presented.’” Jeune v. U.S.
Att’y Gen., 810 F.3d 792, 803 (11th Cir. 2016) (quoting Cole v. U.S.
Att’y Gen., 712 F.3d 517, 534 (11th Cir. 2013)).
“We have sustained reasoned-consideration claims in three
types of circumstances: when the [BIA] ‘misstates the contents of
the record, fails to adequately explain its rejection of logical con-
clusions, or provides justifications for its decision which are unrea-
sonable and which do not respond to any arguments in the rec-
ord.’” Ali, 931 F.3d at 1334 (quoting Jeune, 810 F.3d at 803). All three
instances “flow from some irreconcilable tension between the
opinion and the record evidence.” Id. So although the BIA need
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22-11778 Opinion of the Court 21
not discuss all the record evidence, sometimes “it is practically im-
possible for the [BIA] to write a reviewable decision without dis-
cussing ‘highly relevant’ evidence.” Id.
The Ingods’ argument that the BIA did not give reasoned
consideration to their due process arguments is belied by the rec-
ord. The BIA raised, then rejected, the Ingods’ contentions about
the IJ’s qualifications, and the IJ’s alleged lies, falsifications, and mis-
leading statements. And the BIA addressed the Ingods’ arguments
about their countries of designation. It is therefore clear that the
BIA considered the issues raised by the Ingods and announced its
decision in terms sufficient to enable our review.
ii. Merits
We next address the merits of the Ingods’ due process
claims. “It is well settled that individuals in deportation proceed-
ings are entitled to due process of law under the Fifth Amend-
ment.” Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007).
“To establish due process violations in removal proceedings, aliens
must show that they were deprived of liberty without due process
of law, and that the asserted errors caused them substantial preju-
dice.” Lonyem, 352 F.3d at 1341–42. To show substantial prejudice,
“an alien must demonstrate that, in the absence of the alleged vio-
lations, the outcome of the proceeding would have been different.”
Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010) (per
curiam). “However, ‘the failure to receive relief that is purely dis-
cretionary in nature does not amount to a deprivation of a liberty
interest.’” Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir.
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22 Opinion of the Court 22-11778
2009) (quoting Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th
Cir. 2008)).
Although 8 U.S.C. “§ 1253(a) gives the alien the power to in-
itially designate the deportation country, when that designation or
the alien refuses to specify such a country, the provision reposes
very broad discretion in the [BIA] to designate the removal coun-
try.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1295 (11th Cir. 2001), over-
ruled on other grounds by Patel v. U.S. Att’y Gen., 971 F.3d 1258 (11th
Cir. 2020). Under 8 U.S.C. § 1231(b)(2)(A)(i), “any alien . . . who has
been ordered removed may designate one country to which the al-
ien wants to be removed.” “If an alien is not removed to a country
designated under subparagraph (A)(i), the Attorney General shall
remove the alien to a country of which the alien is a subject, na-
tional, or citizen.” 8 U.S.C. § 1231(b)(2)(D). “If an alien is not re-
moved to a country under [these] subparagraphs, the Attorney
General shall remove the alien” to a specified list of countries, in-
cluding “[t]he country in which the alien was born.” See id.
§ 1231(b)(2)(E)(iv).
The regulations also provide that the IJ “shall receive and
consider material and relevant evidence, rule upon objections, and
otherwise regulate the course of the hearing.” 8 C.F.R. § 1240.1(c).
And the regulations note that “[n]othing in this section is intended
to limit the authority of the immigration judge to properly control
the scope of any evidentiary hearing.” Id. § 1240.11(c)(3)(ii).
We see no due process violations here. First, the Ingods’
contention that they were not given proper notice of potential
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22-11778 Opinion of the Court 23
countries of removal is unpersuasive. The Ingods declined to des-
ignate countries of removal when asked. By declining, the Ingods
ceded broad discretionary authority to the IJ and BIA to designate
their countries of removal. See Al Najjar, 257 F.3d at 1295. The BIA
was thus required to remove the Ingods to countries where they
were subjects, nationals, or citizens. See 8 U.S.C. § 1231(b)(2)(D).
Though the Ingods argue that neither Mr. Ingod nor Mrs. Ingod
are citizens of Mongolia and India, respectively, the Ingods admit-
ted that they were born in those countries. And the Ingods con-
firmed that they had no documentation showing that they were not
citizens of those countries. Even if we accept the Ingods’ asser-
tions of their lack of citizenship, the BIA can still remove them to
the countries in which they were born. Id. § 1231(b)(2)(E)(iv).
As to the Ingods’ more general assertions of due process vi-
olations, the BIA also did not err in holding that the IJ did not vio-
late the Ingods’ due process rights.8 The Ingods’ contention that
the IJ failed to appropriately explain the merits hearing process is
contradicted by the record. The IJ informed the Ingods that she
would ask questions, would then allow the government to ask
questions, and would then allow the Ingods to raise anything else.
Mr. Ingod confirmed that he understood this.
8 Many of the other alleged errors that the Ingods recite are trivial. For exam-
ple, the argument that the IJ used the word “presume” when questioning
Mr. Ingod but wrote “assume” in her decision does not amount to a due pro-
cess violation.
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24 Opinion of the Court 22-11778
The Ingods’ assertion that the IJ prevented Mr. Ingod from
testifying in narrative form is also contradicted by the record. Prior
to the merits hearing, the IJ accepted Mr. Ingod’s written summary
of the case, which contained more detailed information than his
original application, and the IJ allowed Mr. Ingod to testify to the
information within that statement. This was within the IJ’s discre-
tion to control the scope of the hearing. See 8 C.F.R.
§ 1240.11(c)(3)(ii). If the Ingods suggest they should have been al-
lowed to give live, uninterrupted testimony, they cite no authority
for that proposition. Moreover, the IJ offered Mr. Ingod two oppor-
tunities to add anything to the record, once at the close of the IJ’s
questioning and again after the Government’s closing arguments.9
Finally, the Ingods’ argument that the IJ was inappropriately
influenced by her assumption that they had fraudulently changed
their names fails. That the IJ questioned whether the Ingods legally
changed their names does not show that the IJ thought they did so
fraudulently. Moreover, as the BIA noted, this issue did not affect
the IJ’s burden-of-proof rulings.
The BIA thus did not err in holding that the IJ correctly des-
ignated the Ingods’ countries of removal. Nor did the BIA err in
holding that the IJ did not otherwise violate the Ingods’ due process
rights.
9 We also note that the Ingods had approximately five years to prepare for
their merits hearing.
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22-11778 Opinion of the Court 25
B. Substantial Evidence
Like their due process claims, the Ingods make several sub-
stantial evidence-based arguments. Interspersed among these ar-
guments, they suggest that the BIA rejected their logical conclu-
sions without an adequate explanation and that the BIA conducted
de novo review on factual issues that the IJ did not decide. The
Ingods contend that it is unclear whether the BIA implicitly rebut-
ted the presumption of Mr. Ingod’s credibility.10 They also assert
that the IJ made self-contradictory statements of material fact and
that the BIA remained silent about this. The Ingods also argue that
given the IJ’s denial of Mr. Ingod’s applications relied heavily on
“the insufficiency of corroborating evidence,” the BIA should have
remanded the proceedings. Last, the Ingods argue that the BIA’s
rejection of their argument that the IJ made clearly erroneous fac-
tual findings is unfair because the IJ distorted Mr. Ingod’s testi-
mony.
i. Reasoned Consideration
Again, the Ingods appear to argue that the BIA did not give
reasoned consideration to their arguments. We disagree. The BIA
reviewed the key points of Mr. Ingod’s testimony and explained
point-by-point why it upheld the IJ’s decision. The BIA thus con-
sidered the issues raised in the Ingods’ appeal and announced its
10 The Ingods also add new facts about the production of Mr. Ingod’s film.
“[W]e cannot engage in fact-finding on appeal, nor may we weigh evidence
that was not previously considered below.” Al Najjar v. Ashcroft, 257 F.3d 1262,
1278 (11th Cir. 2001). We therefore do not consider these new facts.
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26 Opinion of the Court 22-11778
decision in terms sufficient for this Court to “perceive that it has
heard and thought and not merely reacted.” Jeune, 810 F.3d at 803.
ii. Merits
We now turn to the merits of the Ingods’ substantial evi-
dence arguments. As noted above, we review the BIA’s factual find-
ings for substantial evidence. See Perez-Zenteno v. U.S. Att’y Gen.,
913 F.3d 1301, 1306 (11th Cir. 2019). “The asylum applicant bears
the burden of proving refugee status.” Diallo v. U.S. Att’y Gen.,
596 F.3d 1329, 1332 (11th Cir. 2010) (per curiam). To meet this bur-
den, the applicant must, “with specific and credible evidence, estab-
lish (1) past persecution on account of a statutorily listed factor, or
(2) a ‘well-founded fear’ that the statutorily listed factor will cause
such future persecution.” Id.; 8 C.F.R. § 1208.13(a)–(b). “A showing
of past persecution creates a rebuttable presumption of a well-
founded fear of future persecution.” De Santamaria v. U.S. Att’y
Gen., 525 F.3d 999, 1007 (11th Cir. 2008); 8 C.F.R. § 208.13(b)(1). Ab-
sent a showing of past persecution, an applicant can show a
well-founded fear of future persecution “by demonstrating (1) a
subjectively genuine and objectively reasonable fear of persecution
that is (2) on account of a protected ground.” De Santamaria,
525 F.3d at 1007; 8 C.F.R. § 208.13(b)(2).
An applicant is eligible for withholding of removal if he or
she shows that, upon return to his country, he more likely than not
will be persecuted there based on a protected ground.
See 8 U.S.C. § 1231(b)(3)(A). If an applicant cannot meet the “well-
founded fear” standard of asylum, he generally will not be eligible
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22-11778 Opinion of the Court 27
for withholding of removal. Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1352 (11th Cir. 2009).
To be eligible for CAT relief, an applicant must “establish that
it is more likely than not he or she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2);
Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004).
Under the REAL ID Act, the applicant bears the burden of
proof of the basic facts of his or her claim. 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(C). “The testimony of the applicant
may be sufficient to sustain the applicant’s burden without corrob-
oration, but only if the applicant satisfies the trier of fact that the
applicant’s testimony is credible, is persuasive, and refers to specific
facts sufficient to demonstrate that the applicant is a refugee.”
Id. § 1158(b)(1)(B)(ii). But “[w]here the trier of fact determines that
the applicant should provide evidence that corroborates otherwise
credible testimony, such evidence must be provided unless the ap-
plicant does not have the evidence and cannot reasonably obtain
the evidence.” Id.
Substantial evidence supports the BIA’s affirmance of the IJ’s
determination that Mr. Ingod’s testimony was neither persuasive
nor sufficient to carry his burden of proof for three reasons. First,
the Ingods’ contention that it is unclear whether the BIA implicitly
rebutted Mr. Ingod’s presumption of credibility is irrelevant. The
BIA determined that the IJ did not make an adverse credibility
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28 Opinion of the Court 22-11778
finding.11 As the BIA explained, the thrust of the IJ’s analysis fo-
cused on the insufficiency of Mr. Ingod’s evidence, rather than on
credibility issues. And, as the IJ properly noted, applicants “must
establish testimony that is not only credible, but also persuasive and
specific enough to establish the facts of the case.” “[T]he INA ex-
pressly distinguishes between credibility, persuasiveness, and the
burden of proof.” Garland v. Ming Dai, 141 S. Ct. 1669, 1680 (2021).
For an applicant’s “testimony to carry the day on its own” the INA
requires that the applicant “satisfy the trier of fact on all three
counts.” Id. Even if the BIA treats the applicant’s testimony as
credible, it “need not find his [testimony] persuasive or sufficient to
meet the burden of proof.” Id.
Second, the BIA’s finding that Mr. Ingod’s testimony was ul-
timately unpersuasive is supported by the record. Mr. Ingod’s tes-
timony was often inconsistent with the information he provided in
his initial application or elsewhere in his testimony. Consider three
examples: (1) his alleged poisoning in Fiji, (2) details about the film,
11 To the extent that the Ingods argue that the BIA incorrectly found that the
IJ did not make a credibility determination, they are mistaken. True, the IJ
found portions of Mr. Ingod’s testimony neither “persuasive nor credible.”
But, as we have found in other cases, this is not a “clean determination[] of
credibility.” See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005)
(holding that an IJ did not make an explicit credibility finding when the IJ ref-
erenced an applicant’s claims as extremely inconsistent and making no sense).
“Thus, for purposes of our review, we will assume that any credibility deter-
minations by the IJ were not dispositive of the appeal.” Id.
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22-11778 Opinion of the Court 29
and (3) his ability to travel freely while participating in activities the
Chinese government exiled him for.12
Central to Mr. Ingod’s alleged fear of persecution was his
testimony that someone from China tried to poison him while he
was in Fiji in 2012. Yet Mr. Ingod’s 2013 application does not men-
tion this. Mr. Ingod’s explanation for why this was not men-
tioned—i.e., he did not believe the poisoning was an attack until
after he filed his application—is perplexing considering his other
testimony. Mr. Ingod testified that a blood test revealed that he had
been poisoned two days after he fell ill. And when the IJ asked why
he did not report the poisoning to the Fijian police, Mr. Ingod tes-
tified that he was worried the police would tell the Chinese em-
bassy. So Mr. Ingod must have assumed that someone from China
was behind the attack at the time even if he could not be certain.
Also critical to Mr. Ingod’s fear of persecution was the film
he was making about his sister and the Tiananmen Square Massa-
cre. Mr. Ingod testified that he was solely responsible for making
the film. Yet in his application, Mr. Ingod reported that his entire
family was involved and that this led the Chinese government to
“hate the voice of [his] family.” Although Mr. Ingod attempted to
clarify in his brief to the BIA that his father had only a nominal role
12 Another notable inconsistency between Mr. Ingod’s application and testi-
mony was his translation work for the South Korean NGO, One Nation.
Though Mr. Ingod insists that he mentioned this to the USCIS Asylum Officer
in 2013, there is no proof of this. Even if true, it does not change the fact that
Mr. Ingod did not include this information in his application.
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30 Opinion of the Court 22-11778
in the film’s production, this is still inconsistent with his testimony.
It also fails to adequately explain why his father remained un-
harmed in China—as noted by the IJ—until he committed suicide.
Even setting aside those inconsistencies, the IJ and BIA per-
missibly found that Mr. Ingod’s ability to travel freely and run mul-
tiple businesses was inconsistent with his testimony that his politi-
cal actions subjected him to persecution by the Chinese govern-
ment. Before the BIA, Mr. Ingod argued that his activities—like
meeting with Zhao while he was under house arrest in 2004 and
meeting with the Dalai Lama in 2006—were not “even close to
China’s ‘political red line’” or seditious. Yet he also argued that
these activities, among others, contributed to his exile. It was
therefore reasonable for the BIA to conclude that the Chinese gov-
ernment viewed these activities as problematic. And considering
Mr. Ingod’s insistence that the Chinese government tried to mur-
der him after he left China, such information would be relevant to
his applications.13 That is especially true because Mr. Ingod testi-
fied that he confirmed the charges against him before he filed his
applications.
Finally, the BIA’s finding that the IJ appropriately required
Mr. Ingod to submit corroborating evidence to meet his burden of
proof is supported by substantial evidence. “The weaker an appli-
cant’s testimony . . . the greater the need for corroborative evi-
dence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005).
13 The Ingods’ argument that the IJ did not allow Mr. Ingod to explain this
inconsistency contradicts the record.
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22-11778 Opinion of the Court 31
And “[w]here the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credible testimony,
such evidence must be provided unless the applicant does not have
the evidence and cannot reasonably obtain the evidence.”
8 U.S.C. § 1158(b)(1)(B)(ii).
As explained above, the IJ determined that the Ingods’ testi-
mony—though not incredible—did not satisfy Mr. Ingod’s burden
of proof and that reasonably available corroborating evidence was
required. Mr. Ingod provided no corroborating evidence about his
claims, including: the film script, his sister’s death, his contact with
the Dalai Lama, any business records, the email from his father
about his suicide plan, medical treatment records after he was poi-
soned, or any records from his work for One Nation. Notably, in
2017, the IJ informed Mr. Ingod that he had a duty to submit evi-
dence to support his claims.
We are also unpersuaded by the Ingods’ argument that they
could not obtain supporting evidence because Mr. Ingod was ex-
iled, faced death threats, and lived in seclusion. These explanations
do not account for the Ingods’ ability to get records from other
countries outside of China, such as Mr. Ingod’s medical records
from Fiji or his One Nation records from South Korea. The BIA’s
finding that the IJ properly concluded such evidence was reasona-
bly available is thus supported by substantial evidence.
We therefore have no reason to disturb the BIA’s affirmance
of the IJ’s denial of the Ingods’ applications. Mr. Ingod did not es-
tablish through testimony that he suffered past persecution on
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32 Opinion of the Court 22-11778
account of a statutorily protected ground or that he had a
well-founded fear of future prosecution. See Diallo, 596 F.3d at
1332. As Mr. Ingod failed to meet the “well-founded fear” standard
for asylum relief, he necessarily cannot meet the higher
more-likely-than-not standard for withholding of removal.
See Kazemzadeh, 577 F.3d at 1352. Mr. Ingod also failed to show
through sufficient testimony that he would be more likely than not
tortured if he was removed to China. See Reyes-Sanchez, 369 F.3d at
1242. And he did not provide corroborating evidence to support his
claims though such evidence was reasonably available. The BIA’s
affirmance of the IJ’s denial of Mr. Ingod’s applications is supported
by substantial evidence.
IV. Conclusion
Accordingly, we deny the Ingods’ petition for asylum, with-
holding of removal, and CAT relief.
PETITION DENIED.
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