Kehua Gong v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
JUN 18 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEHUA GONG; SHOUE ZENG, No. 14-72391
Petitioners, Agency Nos. A201-036-604
A201-036-605
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 13, 2019**
Honolulu, Hawaii
Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit
Judges.
Petitioners Kehua Gong and Shoue Zeng petition for review of the Board of
Immigration Appeals’ (BIA) decision denying their applications for asylum and
*
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).
withholding of removal.1 We have jurisdiction pursuant to 8 U.S.C. § 1252(b), and
we deny the petition.
The agency’s adverse credibility determination is supported by substantial
evidence.2 “Where the BIA issues its own decision but relies in part on the
immigration judge’s reasoning, we review both decisions.” Singh v. Holder, 753
F.3d 826, 830 (9th Cir. 2014) (quoting Flores-Lopez v. Holder, 685 F.3d 857, 861
(9th Cir. 2012)). Petitioners bear the burden of demonstrating their eligibility for
asylum and withholding of removal, see 8 U.S.C. §§ 1158(b)(1)(B),
1229a(c)(4)(A), and we may not disturb the agency’s factual findings or credibility
determinations if they are supported by substantial evidence. See Mairena v. Barr,
917 F.3d 1119, 1123 (9th Cir. 2019) (per curiam).
“Because credibility determinations are findings of fact by the [Immigration
Judge (“IJ”)], they are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Manes v. Sessions, 875 F.3d 1261, 1263
(9th Cir. 2017) (per curiam) (internal quotation marks omitted). “Under the REAL
ID Act, which applies here, there is no presumption that an applicant for relief is
1
Petitioners do not address Convention Against Torture protection in
their opening brief; we deem these claims abandoned. See, e.g., Christian Legal
Soc’y v. Wu, 626 F.3d 483, 485 (9th Cir. 2010).
2
As the parties are familiar with the record and arguments on appeal,
we recite only those facts necessary to decide the petition.
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credible, and the IJ is authorized to base an adverse credibility determination on the
totality of the circumstances and all relevant factors.” Id. (internal quotation marks
omitted). There is no exhaustive list of criteria the agency must consider, but
“relevant factors will include demeanor, candor, responsiveness of the applicant or
witness, the inherent plausibility of the applicant or witness’s account, consistency
between the applicant or witness’s written and oral statements, internal consistency
of each statement, and consistency of statements with other evidence.” Shrestha v.
Holder, 590 F.3d 1034, 1040 (9th Cir. 2010).
In this case, the IJ cited several aspects of both petitioners’ testimony that
support an adverse credibility determination. Preliminarily, the IJ concluded that
both petitioners exhibited “blatant non-responsiveness” to the court’s questions and
observed that they were “evasive” in many of their answers. The IJ also noted
“several inconsistencies” in Zeng’s testimony, including the fact that she claimed
to live in hiding for three and a half years out of fear that Chinese family planning
authorities would forcibly sterilize her but also testified that she visited her
husband once a month in a government-run detention camp. Similarly, the IJ
observed that Gong testified he feared forced sterilization but could not explain
why family planning authorities did not sterilize him while they detained him in
their custody. Petitioners also conceded before the BIA that Chinese government
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policy now forbids forced sterilization, but they continue to assert that they fear
sterilization if they are returned to China. Finally, petitioners claimed that Chinese
family planning officials were searching for them but also admitted leaving China
on valid travel documents that bore their true names. These inconsistencies,
coupled with the IJ’s assessment of petitioners’ demeanor, candor, and
responsiveness to questions, constitute sufficient evidence to uphold the agency’s
adverse credibility determination. See Hammad v. Holder, 603 F.3d 536, 544 (9th
Cir. 2010) (explaining that, under the substantial evidence standard, “the court
must affirm the BIA’s order when there is such relevant evidence as reasonable
minds might accept as adequate to support it, even if it is possible to reach a
contrary result on the basis of the evidence.” (internal quotation marks omitted)).
Petitioners argue that they should have been given additional opportunity to
provide further corroboration, but because the IJ considered petitioners’
documentary evidence in reaching the adverse credibility determination, the
agency was not required to afford further opportunity to provide additional
corroborative evidence. See Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir.
2017) (“When an IJ has considered the corroborating evidence provided by an
applicant for relief but deemed that evidence insufficient, the IJ need not afford the
applicant an opportunity to provide additional evidence.”). Further, petitioners fail
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to identify any additional corroborative evidence that could have buttressed their
claim.
In view of the agency’s adverse credibility determination, petitioners failed
to meet their burden of establishing eligibility for either asylum or withholding of
removal. See Shrestha, 590 F.3d at 1048.
PETITION DENIED.
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