Jiming Wan v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMING WAN, No. 20-70637
Petitioner, Agency No. A208-825-692
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2021**
Pasadena, California
Before: BERZON and BYBEE, Circuit Judges, and CARDONE,*** District Judge.
Petitioner Jiming Wan, a native and citizen of China, petitions for review of
an order entered by the Board of Immigration Appeals (“BIA”) affirming an
*
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 Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
immigration judge’s (“IJ”) denial of her application for asylum and withholding of
removal under the Immigration and Nationality Act, and for protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
Substantial evidence supports the agency’s adverse credibility
determination. See Shrestha v. Holder, 590 F.3d 1034, 1039–42 (9th Cir. 2010).
Petitioner admits that she intentionally misrepresented her employment on three
separate visa applications, as well as misrepresenting her income on her December
2010 visa application. She also stated in her 2014 visa application that she
planned to travel with a tour group, when in fact she deviated from the tour to visit
her U.S. citizen sister. Although her sister was the person who told her she could
apply for asylum in the United States, Petitioner failed to mention her sister in her
original asylum application, instead stating that she had only one brother, who was
living in China. Under the REAL ID Act, deliberate deception “always counts as
substantial evidence supporting an adverse credibility finding,” even if the truth
“turn[s] out to be irrelevant.” Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir.
2011). And the exception to that rule does not apply here because Petitioner was
not “a genuine refugee escaping persecution” at the time she made the
misrepresentations on her visa applications. See id. (quoting Akinmade v. INS, 196
F.3d 951, 955 (9th Cir. 1999)).
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Substantial evidence also supports the agency’s finding that Petitioner’s
story was inherently implausible. See 8 U.S.C. § 1158(b)(1)(B)(iii). She claimed
that she left China seeking freedom to practice Christianity, yet she voluntarily
moved from California, where she attended a Mandarin-speaking church, to a
remote farm in Hawai’i, where she does not attend church. Petitioner could not
explain how she otherwise practices her religion. See Don v. Gonzales, 476 F.3d
738, 743 (9th Cir. 2007) (holding that petitioner’s behavior undermined his stated
fear of persecution). Moreover, Petitioner’s claim that she flew roundtrip between
Hawai’i and Los Angeles for a second baptism was implausible given her alleged
financial insecurity. Petitioner “was given an opportunity to explain the[se]
inconsistencies and implausibilities,” but her explanations “were unconvincing.”
See Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th Cir.) (citation omitted), cert.
denied, 141 S. Ct. 664 (2020). Far from being speculative, then, the agency’s
reasoning was amply supported by the record. See Singh v. Lynch, 802 F.3d 972,
977 (9th Cir. 2015) (citations omitted).
Because substantial evidence thus supports the adverse credibility
determination, the Court “must give no weight to [Petitioner’s] testimony.”
Huang v. Holder, 744 F.3d 1149, 1156 (9th Cir. 2014). And without that
testimony, “the remaining evidence in the record is insufficient to carry her burden
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of establishing eligibility for relief.” Wang v. Sessions, 861 F.3d 1003, 1009 (9th
Cir. 2017).1
The petition for review is DENIED.
1
Petitioner’s argument that the IJ did not adequately consider certain corroborating
evidence was not sufficiently raised before the BIA, so we lack jurisdiction to
review it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Similarly,
because Petitioner does not independently challenge the denial of CAT protection,
she has waived any such claim. See Gonzalez-Caraveo v. Sessions, 882 F.3d 885,
889 (9th Cir. 2018).
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