Ni v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BINGUIN NI, No. 22-647
Agency No.
Petitioner,
A208-069-695
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2023 **
San Francisco, California
Before: HAWKINS, S.R. THOMAS and MCKEOWN, Circuit Judges.
Petitioner Binguin Ni (“Ni”) seeks review of the Board of Immigration
Appeals’ (“BIA”) order affirming the Immigration Judges (“IJ”) denial of his
applications for asylum, withholding of removal and protection under the
Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C.
§ 1252, and 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).
Substantial evidence supports the agency’s decision that Ni was not
credible and did not bear his burden of establishing eligibility for asylum or
withholding of removal. Mejia-Paiz v. INS, 111 F.3d 720, 723 (9th Cir.
1997). The agency identified specific incongruities between Ni’s testimony and
documentary evidence, including the certificate of sterilization which he claimed
to have used in July 2012 to register his son, but which bore an issue date of
September 2012. Additionally, in Ni’s 2014 handwritten statement submitted
with his asylum application, he wrote that the critical events giving rise to his
asylum claim―his second child’s birth, his wife’s sterilization, and receipt of a
fine notice from family planning―occurred in 2006, 2007 and 2008. He later
corrected these dates to describe these events as occurring in 2011, 2012 and
2013, but his only explanation for the change was that he must have written it
down wrong the first time. See Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir.
2011) (IJ may reject even plausible explanations). The agency also permissibly
relied on Ni’s evasive demeanor, particularly when answering questions about his
travel to other countries besides the United States (which he first denied and then
offered changing explanations for). The agency provided specific and cogent
reasons to support the adverse credibility determination, Shrestha v. Holder, 590
F.3d 1034, 1042 (9th Cir. 2010), and the record does not compel the conclusion
that Ni was credible.
Substantial evidence also supports the agency’s denial of Ni’s application
for CAT protection, because he failed to establish that “it is more likely than not
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that he . . . would be tortured if removed” to China and that such torture would
be inflicted by or with the acquiescence of a public official. Garcia-Milan v.
Holder, 755 F.3d 1026, 1033 (9th Cir. 2014); 8 C.F.R. § 1208.16(c)(2). “[W]hen
the petitioner’s ‘testimony [is] found not credible, to reverse the BIA's decision
[denying CAT protection,] we would have to find that the reports alone compelled
the conclusion that [the petitioner] is more likely than not to be tortured.’”
Shrestha, 590 F.3d at 1048–49 (alteration in original) (quoting Almaghzar v.
Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006)). The BIA concluded the
country conditions reports here were insufficient to show Ni demonstrated a
particularized risk of torture, Lalayan v. Garland, 4 F.4th 822, 840 (9th Cir.
2021), and the record does not compel a contrary conclusion.
The temporary stay of removal remains in effect until the mandate issues.
PETITION DENIED.
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