Ya Xiao v. Merrick Garland ( 2022 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        APR 15 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    YA XIAO,                                        No.    17-71363
    Petitioner,                     Agency No. A208-837-825
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted April 13, 2022**
    Pasadena, California
    Before: CALLAHAN and VANDYKE, Circuit Judges, and ARTERTON,***
    District Judge.
    Petitioner Ya Xiao, a citizen of China, seeks review of the Board of
    Immigration Appeals’ (BIA) decision affirming an Immigration Judge’s (IJ) adverse
    *
    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 Janet Bond Arterton, United States District Judge for
    the District of Connecticut, sitting by designation.
    credibility determination against her that resulted in the denial of her application for
    asylum and withholding of removal. We have jurisdiction pursuant to 
    8 U.S.C. § 1252
    (a), and deny the petition.1
    The BIA repeatedly cited to the IJ’s decision and found no clear error in its
    reasoning on the relevant issues, so we review both decisions. See Garcia-Martinez
    v. Sessions, 
    886 F.3d 1291
    , 1293 (9th Cir. 2018) (“Where, as here, the BIA agrees
    with the IJ’s reasoning, we review both decisions.” (citation omitted)); see also
    Ornelas-Chavez v. Gonzales, 
    458 F.3d 1052
    , 1058 (9th Cir. 2006); Medina-Lara v.
    Holder, 
    771 F.3d 1106
    , 1111 (9th Cir. 2014) (“Thus, we refer to the Board and IJ
    collectively as ‘the agency.’”).
    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)). We
    uphold an adverse credibility determination unless “any reasonable adjudicator
    would be compelled to conclude to the contrary.” 
    8 U.S.C. § 1252
    (b)(4)(B); Manes
    v. Sessions, 
    875 F.3d 1261
    , 1263 (9th Cir. 2017) (per curiam). “[T]here is no
    presumption that an applicant for relief is credible, and the IJ is authorized to base
    an adverse credibility determination on ‘the totality of the circumstances’ and ‘all
    1
    Because Petitioner did not raise any argument before the BIA or this court about
    the denial of her claim for Convention Against Torture relief, it is waived. Martinez-
    Serrano v. INS, 
    94 F.3d 1256
    , 1259 (9th Cir. 1996).
    2
    relevant factors.’” Ling Huang v. Holder, 
    744 F.3d 1149
    , 1152–53 (9th Cir. 2014)
    (quoting 
    8 U.S.C. § 1158
    (b)(1)(B)(iii)). Accordingly, “only the most extraordinary
    circumstances will justify overturning an adverse credibility determination.”
    Shrestha v. Holder, 
    590 F.3d 1034
    , 1041 (9th Cir. 2010) (quoting Jibril v. Gonzales,
    
    423 F.3d 1129
    , 1138 n.1 (9th Cir. 2005)).
    Here, substantial evidence supports the agency’s adverse credibility
    determination based on inconsistencies in Xiao’s testimony and inconsistencies
    between her testimony and the documentary evidence. Shrestha, 
    590 F.3d at
    1047–
    48 (upholding adverse credibility determination where the IJ “relied on factors
    explicitly permitted by the REAL ID Act including unresponsive and undetailed
    testimony, and inconsistent testimony for which there was no explanation or
    corroboration”).
    For example, Xiao testified that two police cars were present when she was
    arrested, but later changed her story and stated only one car was present, before
    ultimately arguing under oath that she had never testified there were two police cars.
    See 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). Xiao also testified that she applied for a student visa in order to come
    to a Christian country and avoid persecution, but had previously given a sworn
    statement to a Customs and Border Protection officer stating that she heard she could
    3
    come to the United States to learn English and stay for a long time, so she applied
    for a student visa to do so. When confronted with the inconsistency, she stated that
    she came to the United States to avoid harassment but had already been planning to
    come to learn English. 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”).
    Similarly, Xiao testified that a male cousin in Ohio was her only relative in
    the United States, but in a prior sworn statement had stated that her only relative in
    the United States was a female cousin who was a green card holder.             When
    confronted with the inconsistency, Xiao said “Um.” After being asked to explain,
    she then stated that her husband had a female cousin in New York who she had not
    contacted. See Goel v. Gonzales, 
    490 F.3d 735
    , 739 (9th Cir. 2007) (per curiam)
    (inconsistencies between testimonial and documentary evidence will support an
    adverse credibility determination).
    Given the numerous inconsistencies in the record, the agency’s adverse
    credibility determination is supported by substantial evidence. Lalayan v. Garland,
    
    4 F.4th 822
    , 826 (9th Cir. 2021).
    PETITION DENIED.
    4