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 2020-06

Yingjie Lu v. William Barr ( 2020 )


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  •                                                                               FILED
NOT FOR PUBLICATION
JUN 12 2020
UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YINGJIE LU,                                      No. 18-70425
Petitioner,                        Agency No. A200-794-196
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 10, 2020**
Before: HAWKINS, GRABER, and McKEOWN, Circuit Judges.
Petitioner Yingjie Lu, a native and citizen of China, seeks review of the
Board of Immigration Appeals’ ("BIA") final order affirming the immigration
judge’s ("IJ") denial of her requests for asylum, withholding of removal, and relief
under the Convention Against Torture ("CAT"). 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. Substantial evidence supports the BIA’s determination that the IJ’s
adverse credibility finding was not clearly erroneous. See Shrestha v. Holder,
    590 F.3d 1034
    , 1039–40 (9th Cir. 2010) (stating standard). Among other reasons, the
BIA relied on the inconsistency that the IJ identified between Petitioner’s
testimony and her household register. Petitioner testified that she gave birth to her
second daughter in the Dongling District where she was in hiding from family
planning officials for the duration of her pregnancy. Her household register,
however, lists Petitioner’s home district, Heping District, as her daughter’s
birthplace. Petitioner had notice and an opportunity to explain the inconsistency.
See Ren v. Holder,
    648 F.3d 1079
    , 1092 n.14 (9th Cir. 2011) (noting that the
agency must advise a petitioner that her credibility is questionable and give her an
opportunity to explain before relying on an inconsistency to support an adverse
credibility determination). And the BIA and IJ properly considered Petitioner’s
explanation before making their decisions. Rizk v. Holder,
    629 F.3d 1083
    , 1088
(9th Cir. 2011). Petitioner’s explanations that the two districts were consolidated
or that the birthplace was erroneously entered on the household register are not
supported by the record and, thus, do not compel a contrary conclusion. 8 U.S.C.
§ 1252(b)(4)(B).
2
An IJ may rest an adverse credibility determination on an inconsistency or
inaccuracy "without regard to whether" it "goes to the heart of the applicant’s
claim," so long as it is not an "utterly trivial inconsistency, such as a typographical
error."
    Id. § 1158(b)(1)(B)(iii); 
    Shrestha, 590 F.3d at 1043 
    & n.4. The
discrepancy here is not trivial. As the BIA noted, the inconsistency contradicts
Petitioner’s claim that she went into hiding during her pregnancy because she
feared she would be forced to have another abortion. Because that inconsistency is
sufficient to provide substantial evidence for the adverse credibility finding, we
need not address the agency’s other reasons. See 
    Rizk, 629 F.3d at 1088 
    (noting
that we must uphold an adverse credibility determination "so long as even one
basis is supported by substantial evidence"). Petitioner was the sole witness in
support of her application, so her asylum and withholding claims depended on her
credible testimony. The BIA’s denial of those claims is, thus, supported by
substantial evidence.
2. Substantial evidence also supports the BIA’s determination that Petitioner
did not demonstrate eligibility for CAT relief. See 
    Shrestha, 590 F.3d at 1048

    (stating standard of review and CAT standard). Petitioner’s CAT claim was
premised "on the same statements . . . that the BIA determined to be not credible."
Farah v. Ashcroft, 
    348 F.3d 1153
    , 1157 (9th Cir. 2003). The BIA properly
3
considered the record evidence independent of Petitioner’s discredited testimony
and concluded that it was not sufficient to establish that Petitioner was more likely
than not to be tortured if removed.
     Id. Thus, the 
    adverse credibility finding also
supports denial of CAT relief. 
    Shrestha, 590 F.3d at 1049
    .
PETITION DENIED.
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