Yongri Bian v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YONGRI BIAN, No. 16-70546
Petitioner, Agency No. A088-114-133
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 15, 2022**
Pasadena, California
Before: CALLAHAN and VANDYKE, Circuit Judges, and GONZALEZ
ROGERS,*** District Judge.
Yongri Bian (“Bian”), a native and citizen of the People’s Republic of
China, petitions for review of the Board of Immigration Appeals’ (the “BIA”)
*
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).
***
The Honorable Yvonne Gonzalez Rogers, United States District Judge
for the Northern District of California, sitting by designation.
decision affirming the Immigration Judge’s (“IJ”) adverse credibility determination
that resulted in the denial of his application for withholding of removal. We have
jurisdiction under 8 U.S.C. § 1252(a), and we deny Bian’s petition.1
Where, as here, the BIA adopts the IJ’s decision and also adds its own reasons,
the court reviews both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.
2005). We review the agency’s factual findings, including adverse credibility
determinations, for substantial evidence. Mukulumbutu v. Barr, 977 F.3d 924, 925
(9th Cir. 2020) (citing Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013)). “The
agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.’” Silva-Pereira v. Lynch, 827 F.3d 1176,
1184 (9th Cir. 2016) (quoting 8 U.S.C. § 1252(b)(4)(B)).
1. Here, the BIA’s affirmance of the adverse credibility determination is
supported by substantial evidence. The BIA focused on two specific inconsistencies
identified by the IJ. First, Bian’s testimony regarding his escape to his aunt’s house
and his subsequent return to his home despite police surveillance was found to be
inconsistent with his claimed fear. Second, his testimony regarding the medical
treatment he sought following his detention was found to be inconsistent with the
severe beating he described. These inconsistencies, coupled with Bian’s failure to
1
Bian concedes that he does not challenge the denial of his application for asylum
or Convention Against Torture (“CAT”) protection on appeal.
2
plausibly explain them, constitute substantial evidence supporting the adverse
credibility determination. See Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th
Cir. 2010) (explaining “[t]he IJ did not have to accept [petitioner]’s unpersuasive
explanations for the[] inconsistencies”); see also Zamanov v. Holder, 649 F.3d 969,
972–74 (9th Cir. 2011) (explaining that the agency is not compelled to accept
petitioner’s explanations for testimonial discrepancies). Bian also failed to submit
documentary evidence to corroborate his testimony. Bian has thus failed to meet his
burden to show that the record compels the conclusion that he testified truthfully.
See 8 U.S.C. § 1252(b)(4)(B). Because withholding requires credible testimony,
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003), the BIA properly denied
Bian relief on this basis.
2. An IJ may require corroborating evidence unless the applicant cannot
reasonably obtain it. Shrestha v. Holder, 590 F.3d 1034, 1047 (9th Cir. 2010). Here,
the IJ concluded that Bian’s submitted documentary evidence was insufficient to
corroborate his testimony, given the numerous inconsistencies between the
documents and his testimony (including the permits for the restaurant and Bian’s
household register). Although Bian testified that some corroborating evidence
regarding his arrest and medical treatment was lost because his mother had passed
away in January 2009 and she was the person who safeguarded his records, that
explanation could not resolve the IJ’s concern regarding the critical inconsistencies
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between his testimony and the documents that Bian did submit.
3. Finally, we need not reach Bian’s argument regarding the applicability
of Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), as Bian correctly concedes it is
premised on this court first finding that substantial evidence does not support the
adverse credibility determination, a conclusion we do not reach. Even if Ren did
apply, Bian had notice and numerous opportunities to provide corroborating
evidence to rehabilitate his testimony.
The petition for review is DENIED.
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