Suli Kang v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SULI KANG, No. 15-72329
Petitioner, Agency No. A089-997-927
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 1, 2022**
Before: FRIEDLAND, SANCHEZ, and H. THOMAS, Circuit Judges.
Suli Kang, a native and citizen of China, petitions for review of the Board of
Immigration Appeals’ order dismissing her appeal from an immigration judge’s
(“IJ”) decision denying her application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings, applying the standards governing adverse
credibility determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d
1034, 1039-40 (9th Cir. 2010). We dismiss in part and deny in part the petition for
review.
To the extent Kang challenges the agency’s denial of her claim for CAT
protection, we lack jurisdiction because Kang did not preserve that claim in the
agency. See Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019). We reach
Kang’s claim for withholding of removal, which the BIA decided on the merits
despite having concluded that it too had been waived on appeal. See Figueroa v.
Mukasey, 543 F.3d 487, 492 (9th Cir. 2008) (“[W]e do not employ the exhaustion
doctrine in a formalistic manner, but rather inquire into whether the issue was
before the BIA such that it had the opportunity to correct its error.”).
To overturn an adverse credibility determination, we must find that the
evidence not only supports a contrary conclusion but compels it. Ming Dai v.
Garland, 9 F.4th 1142, 1145 (9th Cir. 2021). Substantial evidence supports the
agency’s adverse credibility determination for several reasons, including the
inconsistencies between Kang’s testimony and the documentation she submitted
concerning the treatment she endured at the hands of police officers and other
circumstances of her arrest and interrogation. See Silva-Pereira v. Lynch, 827 F.3d
2 15-72329
1176, 1185 (9th Cir. 2016) (“[A]n adverse credibility determination may be
supported by omissions that are not ‘details,’ but new allegations that tell a ‘much
different—and more compelling—story of persecution than [the] initial
application.” (quoting Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011))).
Substantial evidence also supports the determination that Kang testified evasively.
See Bingxu Jin v. Holder, 748 F.3d 959, 965 (9th Cir. 2014) (“The record supports
the agency’s demeanor finding, as there are many instances where the IJ explicitly
said that Jin’s answer was nonresponsive . . . .”).
Additionally, the agency permissibly relied on Kang’s failure to produce
corroborative evidence concerning her church attendance in the United States,
particularly because Kang expressly sought and obtained a continuance to obtain
that evidence nearly three years before her final hearing before the IJ. See Ren v.
Holder, 648 F.3d 1079, 1093-94 (9th Cir. 2011) (“[T]he continuance and the
hearing itself provides an applicant represented by counsel with the statutorily
required opportunity.”).
Kang’s claims for asylum and withholding of removal therefore fail. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 15-72329