Jia-Shen He v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIA-SHEN HE, AKA Jiasheng He, No. 20-70450
Petitioner, Agency No. A209-393-307
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2022**
Honolulu, Hawaii
Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
Jia-Shen He, a native and citizen of China, petitions for review of a Board of
Immigration Appeals (BIA) decision affirming the Immigration Judge’s (IJ) denial
of his application for asylum and withholding of removal. We have jurisdiction
under 8 U.S.C. § 1252. We deny the petition.
*
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).
1. He did not waive his challenge to the BIA’s decision by focusing the
arguments in his opening brief on the IJ’s decision. If “the BIA has reviewed the
IJ’s decision and incorporated portions of it as its own, we treat the incorporated
parts of the IJ’s decision as the BIA’s.” Molina-Estrada v. INS, 293 F.3d 1089,
1093 (9th Cir. 2002) (citations omitted). Because He’s brief focused primarily on
the IJ’s reasoning behind issues referenced by the BIA, He did not waive review of
the BIA’s decision.
2. Substantial evidence supports the agency’s adverse credibility finding.
The agency provided specific and cogent reasons for its adverse credibility
determination. Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016); see
also 8 U.S.C. § 1158(b)(1)(B)(iii). He’s misrepresentation of himself as a student
on two visa applications in 2011 and the implausibility of the timeline of his
religious persecution and flight from China support the IJ’s finding that He was not
credible. See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021) (holding that an
asylum applicant’s submission of false information regarding her employment
history on a previous visa application supported an adverse credibility
determination); Lalayan v. Garland, 4 F.4th 822, 837 (9th Cir. 2021) (“Factual
findings, including implausibility findings, ‘are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” (citation omitted)).
Further, He’s failure to corroborate his story by providing supporting
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documentation from his cousin, who was arrested at the same house church
gathering as He, or his aunt, with whom he lives and attends church, weighed
against his credibility. See Singh v. Holder, 638 F.3d 1264, 1270–71 (9th Cir.
2011) (“[I]f the asylum seeker whose credibility has been questioned testifies that
his family was subjected to atrocities in their home, and corroboration is readily
available because members of the family live with him . . . it is reasonable to
question his credibility if none of them testify to corroborate his account.”); Lai v.
Holder, 773 F.3d 966, 976 (9th Cir. 2014) (noting that notice to the petitioner and
the opportunity to provide corroborative evidence or explain why it is unavailable
is needed only “when an IJ’s other reasons for finding an asylum applicant not
credible are not supported by substantial evidence”).
The IJ erred in determining that the fact that He listed a family member’s
Los Angeles address on his bond for release from Department of Homeland
Security custody weighed against He’s credibility, given that He updated his
address to Hawaii upon moving there after his release. Because we consider 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)), when reviewing an
adverse credibility determination, we nevertheless uphold the IJ’s conclusion.
3. Because “an IJ’s decision is ordinarily reviewed by a three-member
panel,” Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003), He’s
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argument that the BIA’s use of a three-member panel in this case constitutes
evidence of clear error by the IJ lacks merit.
PETITION DENIED.
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