Minqiu Lin v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINQIU LIN, No. 19-72370
Petitioner, Agency No. A215-820-727
v.
MEMORANDUM*
MERRICK B. GARLAND,
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2021**
Las Vegas, Nevada
Before: CLIFTON, NGUYEN, and BENNETT, Circuit Judges.
Minqiu Lin petitions the court for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of
asylum and withholding of removal pursuant to 8 U.S.C. §§ 1158(b)(1)(A),
*
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).
1231(b)(3)(A), and protection under the Convention Against Torture (“CAT”)
pursuant to 8 C.F.R. § 1208.16(c) (2019). We deny the petition for review.
We review the agency’s factual findings for substantial evidence. See Lizhi
Qiu v. Barr, 944 F.3d 837, 842 (9th Cir. 2019). A factual finding by the IJ “is not
supported by substantial evidence when any reasonable adjudicator would be
compelled to conclude to the contrary based on the evidence in the record.”
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)
(internal quotation marks and citation omitted). The agency must provide “specific
and cogent reasons in support of an adverse credibility determination,” and
consider the totality of the circumstances, and all relevant factors. Shrestha v.
Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (internal quotation marks and citation
omitted).
The agency’s credibility determination is supported by the record. Both the
IJ and BIA identified inconsistencies related to Lin’s retelling of the second
incident with the police that apparently prompted Lin to flee to the United States.
For example, Lin made conflicting testimonies about whether the police arrested
and beat Lin’s companions after the police discovered them distributing religious
pamphlets.
2
Furthermore, Lin provided inconsistent testimonies about whether the police
entered the home and “beat” him or whether he was able to narrowly escape and
avoid physical injury altogether.
These inconsistencies severely undermine Lin’s credibility because they
directly relate to the incident that supposedly compelled Lin to flee China. See
Shrestha, 590 F.3d at 1047 (“In light of the total circumstances, Shrestha’s
inability to consistently describe the underlying events that gave rise to his fear
was an important factor that could be relied upon by the IJ in making an adverse
credibility determination.”). Accordingly, a reasonable adjudicator would not be
“compelled to conclude” that Lin was credible. See Yali Wang v. Sessions, 861
F.3d 1003, 1007 (9th Cir. 2017) (quoting Garcia v. Holder, 749 F.3d 785, 789 (9th
Cir. 2014)).
Substantial evidence also supports the agency’s determination that the
corroborating evidence was insufficient to rehabilitate his testimony. Although
neither the BIA nor the IJ explicitly mentioned Lin’s baptismal certificate, bail
receipt, and medical report, the agency is not required to do so to sustain its
adverse credibility determination. Vilchez v. Holder, 682 F.3d 1195, 1200–01 (9th
Cir. 2012) (concluding the agency gave adequate consideration to all of the
positive and negative equities in the record and noting that the IJ does not have to
3
write an exegesis on every contention). Here, the IJ and BIA pointed to significant
inconsistencies that the unmentioned evidence could not rehabilitate. Thus, the
agency did not err by failing to mention these documents.
Turning to the corroborative evidence that the agency discussed, Lin’s wife
and Lin’s father appear to present themselves as Christians in their declarations,
yet Lin testified that he was the only Christian in his family. Additionally, the letter
from Lin’s father omits the November police raid at his home. This omission
undermines the letter’s corroborative effect because Lin’s father was supposedly
present when the police arrived and created a commotion. Lin’s father also played
a significant role in helping Lin “narrowly escape” through the back door as well
as keeping Lin apprised of police activity while he remained in hiding. Substantial
evidence, therefore, supports the agency’s finding that these documents did not
rehabilitate Lin’s claim.
Although the BIA’s evaluation of the corroborating evidence was brief, this
is not an instance where “the BIA’s decision cannot be sustained upon its
reasoning[.]” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam).
The agency presented “a reasoned analysis of the evidence as a whole and cite[d]
specific instances in the record that form the basis of the adverse credibility
finding.” Tamang v. Holder, 598 F.3d 1083, 1093–94 (9th Cir. 2010).
4
Finally, Lin neither identifies his eligibility for relief under CAT as an issue
at bar nor presents any specific arguments for CAT protection.1 Thus, Lin has
waived this issue on appeal. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th
Cir. 1996) (“[A]n issue . . . not discussed in the body of the opening brief is
deemed waived.”).
PETITION FOR REVIEW DENIED.
1
Lin discusses CAT only once in his brief where he outlines the relevant legal
standard for CAT protection. Yet, the remainder of his brief fails to mention CAT.
5