Sunhai Yan v. Loretta E. Lynch , 636 F. App'x 428 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SUNHAI YAN, No. 11-73922
Petitioner, Agency No. A089-970-468
v.
MEMORANDUM*
LORETTA LYNCH, United States
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 10, 2016**
Before: HAWKINS and MURGUIA, Circuit Judges; and MURPHY, III,***
District Judge
Sunhai Yan, a native and citizen of the People’s Republic of China, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Stephen Joseph Murphy, III, District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
of an immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). Yan has waived the CAT claim by failing to argue it in his brief. See
Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259–60 (9th Cir. 1996). We have
jurisdiction under 8 U.S.C. § 1252. When, as here, the BIA conducts an independent
review of the IJ’s findings, we review the opinion and not the IJ's decision. Poblete
Mendoza v. Holder, 606 F.3d 1137, 1140 (9th Cir. 2010). We review for substantial
evidence the factual findings, applying the deferential standard governing adverse
credibility determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d
1034, 1039–40 (9th Cir. 2010). We will deny the petition for review.
Substantial evidence supports the BIA’s adverse credibility determination:
Yan’s contradictory testimony about whether he was under police surveillance, Yan’s
asylum application omission of his father’s detention by police on account of his
religion, and Yan’s inconsistent testimony regarding the dates of his father’s detention
and death evidence a lack of truthfulness. See Ling Huang v. Holder, 744 F.3d 1149,
1154 (9th Cir. 2014) (the Court gives “special deference to a credibility determination
that is based on demeanor” (quoting Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir.
1999))); Shrestha, 590 F.3d at 1041 (“[O]nly the most extraordinary circumstances
will justify overturning an adverse credibility determination.” (quoting Jibril v.
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Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005))).
We reject Yan’s contention that the omitted and contradictory testimony about
his father is a minor issue that is not central to his claim. See Shrestha, 590 F.3d at
1043 (“Inconsistencies no longer need to ‘go to the heart’ of the petitioner's claim to
form the basis of an adverse credibility determination.”). Even if Yan accidentally
conflated the dates of his father’s detention and death, there is ample other evidence
supporting the adverse credibility determination. Yan’s story “lack[ed] the ring of
truth,” he resorted to “rote testimony as if he were reciting a memorized script,” and
he appeared “sufficiently aware of U.S. asylum law so as to try to graft some kind of
qualifying statutory ground onto his application, such as religious faith.” See Ling
Huang, 744 F.3d at 1155 (upholding adverse credibility determination based on
superficial testimony that “could easily have been memorized, and therefore did little
to bolster [petitioner’s] veracity” (internal quotation marks omitted)).
Because the BIA identified “specific and cogent reasons supporting [its]
adverse credibility determination,” Yan’s remaining explanations — including the
contention that cultural differences and lack of education caused his unresponsive and
uncomfortable demeanor — do not compel a contrary result. Singh v. Lynch, 802 F.3d
972, 977 (9th Cir. 2015) (quoting Bingxu Jin v. Holder, 748 F.3d 959, 965 (9th Cir.
2014)). In the absence of credible testimony, Yan’s asylum and withholding of
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removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
PETITION FOR REVIEW DENIED.
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