Duan Xue v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUAN XUE, No. 16-72697
Petitioner, Agency No. A200-253-745
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2021**
San Francisco, California
Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.
Duan Xue (“Xue”) petitions for review of the Board of Immigration Appeals’
(“BIA”) dismissal of her appeal from the Immigration Judge’s (“IJ”) denial of Xue’s
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Because the parties are familiar with the facts
*
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).
and procedural history of the case, we do not recite them here. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(1), and we deny the petition.
Where the BIA incorporates the findings of the IJ as its own, we review both
the BIA and IJ decisions. Ahir v. Mukasey, 527 F.3d 912, 916 (9th Cir. 2008). Under
the Immigration and Naturalization Act (“INA”), “administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
The INA delegates discretion to the Attorney General to grant asylum to a
refugee. 8 U.S.C. § 1158(b). A refugee is a person unable or unwilling to return to
her country “because of persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A).
To qualify for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3), a
noncitizen must establish by a “clear probability” that her “life or freedom would be
threatened” upon return to her country because of her “race, religion, nationality,
membership in a particular social group, or political opinion.” Ahmed v. Keisler,
504 F.3d 1183, 1199 (9th Cir. 2007) (citations omitted). The “clear probability”
standard for withholding of removal is more stringent than the “well-founded fear”
standard for asylum, in part, because withholding of removal is a mandatory form of
relief. Id. (citation omitted). So, “failure to satisfy the lesser standard of proof
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required to establish eligibility for asylum necessarily results in a failure to
demonstrate eligibility for withholding of deportation as well.” Ghaly v. INS, 58
F.3d 1425, 1429 (9th Cir. 1995). To establish entitlement for CAT protection, an
applicant must show that it is more likely than not that she would be tortured by or
with the consent or acquiescence of a public official if removed to the proposed
country of removal. Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003) (citing 8 C.F.R.
§ 208.16(c)(2)); 8 C.F.R. § 1208.18(a)(1). “Acquiescence of a public official
requires that the public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7).
For the following reasons, Xue’s petition for review is denied.
First, substantial evidence supports the agency’s denial of relief on adverse
credibility grounds based on inconsistencies in the record. Both the IJ and the BIA
identified reasons for finding Xue not credible, and nothing in the record compels us
to reverse that determination. Although many reasons were identified, two clear
inconsistencies were: (1) the inconsistencies between Xue’s testimony and witness
testimony regarding Pastor Yeh’s international travel and Xue’s subsequent failure
to submit a timely letter from Pastor Yeh; and (2) the inconsistent testimony
regarding Xue’s attendance of the Hayward Church. The agency properly based its
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adverse credibility finding on these inconsistencies, and so the agency’s adverse
credibility finding was based on substantial evidence.
Second, substantial evidence supports the determination that Xue did not
establish a clear probability of torture by or with the acquiescence of a government
official. The record does not support Xue’s argument that she would be tortured by
or with the consent of a public official if she returns to China. Because the IJ found
Xue to be not credible, the IJ properly reviewed the general country conditions
evidence. This evidence did not show Xue’s risk of torture in China was “more
likely than not.” Xue gave no evidence compelling reversal of the agency’s
determination. Because Xue has not shown a clear probability of torture by or with
the acquiescence of public officials upon her return to China, she has not established
eligibility for CAT protection.
PETITION DENIED.
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