Guang Xiao v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUANG XIAO, No. 21-71045
Petitioner, Agency No. A205-778-612
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2022**
San Francisco, California
Before: McKEOWN and W. FLETCHER, Circuit Judges, and VRATIL,***
District Judge.
Guang Xiao seeks review of the Board of Immigration Appeals (“BIA”)
decision dismissing his appeal of the Immigration Judge’s (“IJ”) decision that he
*
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 Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
lacked credibility and was not eligible for relief from removal. We have jurisdiction
under 8 U.S.C. § 1252, and we review both the BIA and IJ decisions, including
adverse credibility determinations, under the substantial evidence standard. Iman v.
Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). We deny the petition for review.
Substantial evidence supports the agency’s conclusion that Xiao lacked
credibility, due to: (1) misrepresentations on his 2006 visa application (regarding,
e.g., his history of arrest, his marital status, his education, and his reason for coming
to the United States); (2) inconsistencies regarding his affiliation with U.S. churches;
(3) inconsistencies regarding his religious affiliation; and (4) inconsistencies
regarding the number of participants in his Chinese church, and how many were
arrested. Further, the IJ found Xiao to be non-responsive—a finding noted by the
BIA but unaddressed by Xiao.
Collectively the misrepresentations, inconsistencies, and non-responsiveness
provide substantial evidence to support the agency’s determination, especially in
light of the 2006 visa application and our recent decisions underscoring the
importance of apparent dishonesty to the asylum inquiry. See, e.g., Kumar v.
Garland, 18 F.4th 1148, 1155 (9th Cir. 2021) (“falsehoods and fabrications weigh
particularly heavily in the adverse credibility inquiry”); Li v. Garland, 13 F.4th 954,
960–61 (9th Cir. 2021) (holding the same). We note, in particular, that the
misrepresentations in the 2006 visa application were made years before the events
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that gave rise to his applications for asylum and related relief. Contra Guo v.
Ashcroft, 361 F.3d 1194, 1202 (9th Cir. 2004). Even a charitable reading of the
record would not compel a reasonable adjudicator to conclude that the agency erred
in its adverse credibility determination. Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.
2014).
Finally, the agency appropriately concluded that, because it determined that
Xiao was not credible, it could deny his applications for withholding of removal and
Convention Against Torture protection on the same basis. Alvarez-Santos v. I.N.S.,
332 F.3d 1245, 1255 (9th Cir. 2003).
PETITION DENIED.
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