Helian Chen v. Merrick Garland ( 2021 )


Menu:
  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                       OCT 15 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    HELIAN CHEN,                                     No.   20-72645
    Petitioner,                      Agency No. A208-733-488
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted October 13, 2021**
    Honolulu, Hawaii
    Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
    Helian Chen, a native and citizen of China, petitions this court for review of
    the Board of Immigration Appeals’ (“BIA’s”) denial of his claim for asylum. As
    the facts are known to the parties, we repeat them only as necessary to explain our
    decision.
    *
    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).
    I
    Substantial evidence supports the BIA’s adverse credibility determination.
    Cf., e.g., Garcia v. Holder, 
    749 F.3d 785
    , 789 (9th Cir. 2014).
    The BIA identified and analyzed a long list of “specific, cogent reason[s]”
    for such determination, Malhi v. INS, 
    336 F.3d 989
    , 992 (9th Cir. 2003) (citation
    omitted), including “[t]he overall implausibility of [Chen’s] testimony, the
    falsehoods in his visa application, the inconsistency [between] his testimony [and
    his documentary evidence], and the lack of corroborating evidence,” which, taken
    together, “undermine[d] the veracity of [Chen’s] claim of persecution.” All such
    factors were permissible and relevant for the BIA to consider in making its
    credibility determination. See 
    8 U.S.C. § 1158
    (b)(1)(B)(iii); see also Jibril v.
    Gonzales, 
    423 F.3d 1129
    , 1135 (9th Cir. 2005).
    Such factors, viewed within the “totality of the circumstances,” Alam v.
    Garland, 
    11 F.4th 1133
    , 1137 (9th Cir. 2021) (en banc) (quoting 
    8 U.S.C. § 1158
    (b)(1)(B)(iii)), constitute substantial evidence for the BIA’s conclusion that
    Chen lacked credibility. Chen fails to “show that the evidence compelled a
    contrary conclusion.” Malhi, 
    336 F.3d at 993
    .
    II
    The BIA properly concluded that the incredibility of Chen’s testimony was
    dispositive in preventing him from meeting his burden to show eligibility for
    2
    asylum. A “persecution claim which lacks veracity cannot satisfy the burdens of
    proof and persuasion necessary to establish eligibility for asylum.” In re M-S-, 
    21 I. & N. Dec. 125
    , 129 (BIA 1995).
    While an asylum applicant can establish eligibility based on documentary
    evidence alone, notwithstanding his lack of credible testimony, Al-Harbi v. INS,
    
    242 F.3d 882
    , 890–94 (9th Cir. 2001), the BIA properly concluded that Chen had
    waived any such argument, see Matter of R-A-M-, 
    25 I. & N. Dec. 657
    , 658 n.2
    (BIA 2012). Thus, to the extent that Chen’s Petition for Review might be read as
    arguing that he “has established past persecution” or “an objectively reasonable
    fear of persecution” based on his documentary evidence alone, such arguments
    would fall outside the scope of this court’s review. See Santiago-Rodriguez v.
    Holder, 
    657 F.3d 820
    , 829 (9th Cir. 2011); see also Lai v. Holder, 
    773 F.3d 966
    ,
    970 (9th Cir. 2014).
    PETITION FOR REVIEW DENIED.
    3