Suling Dong v. Merrick Garland ( 2023 )

FILED
NOT FOR PUBLICATION JAN 30 2023
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SULING DONG, No. 19-71928
Petitioner, Agency No. A201-058-447
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 25, 2023**
San Francisco, California
Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.
Suling Dong, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from 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).
immigration judge (“IJ”)’s decision denying her application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. Where, as here, the
BIA conducts its own review of the evidence and law but also expressly adopts the
IJ’s opinion, we review both the IJ and BIA decisions. Hosseini v. Gonzales, 471
F.3d 953, 957 (9th Cir. 2006). “Taking the totality of the circumstances into
account, we review the BIA’s credibility determination for substantial evidence.”
Barseghyan v. Garland, 39 F.4th 1138, 1142 (9th Cir. 2022). “We [also] review
for substantial evidence the factual findings supporting the BIA’s decision that an
applicant has not established eligibility for asylum, withholding of removal, or
relief under CAT.” Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013)
(citation omitted). Because the parties are familiar with the factual background, we
need not recount it here. We deny the petition for review.
Substantial evidence supports the agency’s denial of relief on the basis of an
adverse credibility determination. “[T]o form the basis of an adverse credibility
determination,” “IJs [may] consider factors such as demeanor, candor,
responsiveness, plausibility, inconsistencies, inaccuracies, and falsehoods . . . .”
Barseghyan, 39 F.4th at 1142–43 (internal quotation marks omitted). Substantial
evidence supports an IJ’s finding that a noncitizen is not credible if the IJ
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“provide[s] specific and cogent reasons” based on these factors, “provide[s] the
noncitizen with an opportunity to explain each inconsistency,” and then
“provide[s] a specific and cogent reason for rejecting” any “explanation that is
reasonable and plausible.” See id. (internal quotation marks omitted).
Here, the IJ and BIA identified several inconsistencies in Dong’s testimony,
but the IJ specifically prompted Dong’s counsel to address any inconsistencies in
her testimony via redirect. Moreover, for many of the inconsistencies on which the
IJ and BIA relied, the IJ provided Dong a specific opportunity to explain each
inconsistency, and, where she so explained, the IJ gave cogent reasons for rejecting
the explanations. Therefore, substantial evidence supported the IJ and BIA’s
findings that Dong was not credible. See id.
The remaining evidence in the record fails to establish Dong’s
individualized risk of persecution or inclusion in a group of persons against which
there is a pattern or practice of persecution in China. See Wakkary v. Holder, 558
F.3d 1049, 1065–67 (9th Cir. 2009). Thus, in the absence of credible testimony,
Dong’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348
F.3d 1153, 1156–57 (9th Cir. 2003).
Substantial evidence supports the agency’s denial of Dong’s CAT claim
because it was based on the same evidence found not credible, and she does not
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point to any other record evidence that compels the conclusion that she will more
likely than not be tortured upon return to China. See Shrestha, 590 F.3d at
1048–49.
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION DENIED.
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