Yanmei Liu v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YANMEI LIU, No. 17-71470
Petitioner, Agency No. A087-866-441
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2022**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and HELLERSTEIN, ***
District Judge.
Yanmei Liu, a native and citizen of China, petitions for review of a Board of
Immigration Appeals (“BIA”) order upholding the denial by the immigration judge
*
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 Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
(“IJ”) of her applications for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition for review.
1. Substantial evidence supports the agency’s adverse credibility
determination. The BIA found no clear error in the IJ’s determination that Liu
provided implausible, inconsistent, and vague testimony concerning the removal of
her IUD, her subsequent pregnancy, and the periodic check-ups required by the
local Family Planning Committee to monitor her compliance with the Committee’s
birth control policies. While we are not persuaded by every alleged inconsistency
cited by the IJ and BIA, there is sufficient support in the record to compel us to
uphold the agency’s conclusion. See Duran-Rodriguez v. Barr, 918 F.3d 1025,
1028 (9th Cir. 2019) (“Under [the substantial evidence] standard, we must uphold
the agency determination unless the evidence compels a contrary conclusion.”).
The following parts of Liu’s testimony support the agency’s conclusion that
aspects of her testimony were inconsistent or implausible.
First, Liu initially stated that she could not remember where she had her first
IUD removed but, when pressed, explained that it was a small health clinic in a
village near her mother’s home that was no longer in operation. She noted that the
procedure was performed by someone named Dr. Li who worked at the county
hospital but, when asked if she could obtain documentation from Dr. Li, stated that
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the doctor was not from the area. She also said that she could not provide any
proof that the health clinic had earlier existed.
Second, Liu stated that she had her first IUD removed in secret in April 1999
because she wanted to have another child, but she later stated that the pregnancy
that immediately followed was accidental.
Third, Liu stated that she attempted to hide this pregnancy from local
officials by skipping her scheduled June 1999 IUD inspection. She testified that
the local village officials called her on the phone multiple times after she skipped
the inspection but then stated that she did not foresee that the authorities might
eventually come find her in person.
Finally, Liu testified that she received notice that she needed to present
herself for an IUD check-up through announcements that the Family Planning
Committee made through the village loudspeaker and noted that all women in the
village had to submit to such inspections. She also testified, however, that she was
not sure whether the Family Planning Committee used the loudspeaker
announcements to notify the other women of their upcoming appointments, even
though the loudspeaker was audible throughout the village.
The adverse credibility determination is also supported by the IJ’s demeanor
finding. We accord substantial deference to demeanor findings where, as here,
they are based on specific instances the agency identifies in the record. See
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Shrestha v. Holder, 590 F.3d 1034, 1041-42, 1045 (9th Cir. 2010). Here, as the
BIA noted, the IJ cited specific instances where Liu paused when confronted with
alleged inconsistencies in her testimony, and we defer to the agency’s assessment
that Liu’s demeanor undermined her credibility.
The agency also did not err in concluding that Liu’s documentary evidence
only further diminished her credibility. For example, the agency noted that the
letter from her husband lacked any detail supporting her testimony; that the letter
from the hospital was not a contemporaneous medical record of the allegedly
forced abortion; and that her marriage certificate, children’s birth certificates, and
household registration information included inconsistencies in Liu’s age, her
husband’s age, and the birth dates of her children. Liu relies on Ren v. Holder, 648
F.3d 1079 (9th Cir. 2011), for the proposition that the IJ should have provided her
notice that her corroboration was insufficient and an opportunity to cure any
deficiencies. But, in Ren, we held that an IJ must give such notice and opportunity
only if an applicant’s “otherwise credible testimony” nonetheless fails to meet the
applicant’s burden of proof without further corroboration. Id. at 1091-93. Here,
Liu has not met this threshold credibility determination, and Ren is therefore
inapplicable.
In the absence of credible testimony, Liu’s claims for asylum and
withholding of removal fail.
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2. Substantial evidence also supports the agency’s determination that Liu is
not eligible for CAT protection. Liu’s claim for relief is based on the same
testimony that the agency deemed not credible. While an adverse credibility
finding does not necessarily defeat a claim for CAT relief, Liu’s country conditions
evidence does not compel the conclusion that she is more likely than not to be
tortured if she is removed to China. See Shrestha, 590 F.3d at 1048-49.
PETITION DENIED.
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