Lihong Wang v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIHONG WANG, No. 19-73006
Petitioner, Agency No. A099-912-071
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 16, 2021**
San Francisco, California
Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
Lihong Wang, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (BIA) denial of her application for asylum and withholding
of removal after this court remanded with instructions to consider whether evidence
in the record, aside from Wang’s non-credible testimony, was sufficient to establish
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
her eligibility for relief. See Wang v. Whitaker, 745 F. App’x 27, 28 (9th Cir. 2018).
We review the agency’s “legal conclusions de novo . . . and its factual findings for
substantial evidence,” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.
2017) (en banc) (citations omitted), and apply the standards governing adverse
credibility determinations under the REAL ID Act, Shrestha v. Holder, 590 F.3d
1034, 1039–40 (9th Cir. 2010). Exercising jurisdiction under 8 U.S.C. § 1252, we
deny the petition for review.
We reject as unsupported by the record Wang’s contentions that the BIA failed
to consider the documentary evidence or otherwise erred in its credibility analysis.
When, as here, an applicant for asylum and withholding of removal is found not
credible, the trier of fact considers whether the remaining record evidence is
sufficient to meet the burden of proof. Al-Harbi v. INS, 242 F.3d 882, 890–94 (9th
Cir. 2001). On remand, the BIA reviewed Wang’s documentary evidence and
“adequately described [its] concerns regarding the provenance and reliability of
those documents.” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). The BIA
concluded that the firing decisions for Wang and her husband, punishment decision
from the family planning committee giving notice of a fine, and the hospital
certificate purporting to show that Wang was fitted with an intrauterine device (IUD)
in China were “unreliable.” Specifically, the BIA referenced the IJ’s determination
that the hospital certificate from China lacked “other information to support its
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veracity” (such as the date of the procedure, the medical professional who performed
it, and the individual who looked up the record), and pointed out numerous
inconsistencies between Wang’s testimony, the firing decisions, and the punishment
decision. See Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014).
Based on these inconsistencies between the documentary evidence and
Wang’s testimony, and the questioned veracity of Wang’s documentary evidence
itself, the BIA ascertained that the only reliable evidence in the record was the
country conditions evidence and medical records from the United States. But,
setting aside Wang’s non-credible testimony, these documents only established that
Wang was fitted with an IUD, which did not “rise to the level of harm required to
establish persecution.” Matter of M-F-W- & L-G-, 24 I. & N. Dec. 633, 640 (BIA
2008) (“[S]imply requiring a woman to use an IUD, and other more routine methods
of China’s implementation of its family planning policy, do not generally rise to the
level of harm required to establish persecution.”). As the record evidence does not
compel the conclusion that Wang established past persecution or demonstrated a
well-founded fear of persecution, the BIA’s conclusion that Wang failed to
demonstrate eligibility for asylum is supported by substantial evidence. See
Bringas-Rodriguez, 850 F.3d at 1059.
Further, contrary to Wang’s assertions, “mere economic disadvantage alone
does not rise to the level of persecution.” Gormley v. Ashcroft, 364 F. 3d 1172, 1178
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(9th Cir. 2004). As the IJ found, Wang failed to present evidence of substantial
economic disadvantage. See Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir.
2006) (concluding that government seizure of the business owned by petitioner’s
father did not rise to the level of substantial economic disadvantage necessary for a
finding of persecution).
Because Wang could not establish her eligibility for asylum, the BIA
“properly concluded that she was not eligible for withholding of removal, which
imposes a heavier burden of proof.” Zehatye, 453 F.3d at 1190.
PETITION FOR REVIEW DENIED.
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