Yali Wang v. Jefferson Sessions , 861 F.3d 1003 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YALI WANG, No. 14-72469
Petitioner,
Agency No.
v. A205-336-290
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2017*
San Francisco, California
Filed July 3, 2017
Before: Dorothy W. Nelson and Sandra S. Ikuta, Circuit
Judges, and J. Michael Seabright,** Chief District Judge.
Opinion by Judge Ikuta
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable J. Michael Seabright, Chief United States District
Judge for the District of Hawaii, sitting by designation.
2 WANG V. SESSIONS
SUMMARY***
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ decision affirming an immigration
judge’s denial on adverse credibility grounds of an
application for asylum, withholding of removal, and
protection under the Convention Against Torture.
The panel held that substantial evidence supported the IJ’s
adverse credibility determination based on anomalies in
petitioner’s supporting documentation, petitioner’s vague
testimony, and her failure to submit sufficient reliable
corroborating evidence.
The panel rejected petitioner’s contention that the IJ erred
by failing to make an affirmative finding that she submitted
forged documentation, explaining that the applicant has the
burden to satisfy the trier of fact by offering credible and
persuasive evidence, and that the IJ may consider all relevant
factors, including “the inherent plausibility” of the applicant’s
account.
The panel held that the IJ was under no obligation under
Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), to provide
petitioner notice and an opportunity to present additional
corroborating evidence, because petitioner failed to meet her
initial burden of presenting credible testimony. The panel
further held that when an IJ has considered the corroborating
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WANG V. SESSIONS 3
evidence submitted, but deemed that evidence insufficient,
the IJ need not afford the applicant an opportunity to provide
additional evidence.
COUNSEL
Michael A. Rohr, West Covina, California, for Petitioner.
Andrew Oliveira, Trial Attorney; Carl McIntyre, Assistant
Director; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
IKUTA, Circuit Judge:
Yali Wang, a citizen and native of China, petitions for
review of the denial of her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (CAT). After reviewing Wang’s testimony
and the evidence in the record, the Immigration Judge (IJ)
made an adverse credibility determination and concluded that
Wang had not carried her burden of proving eligibility for
relief. Because the IJ’s adverse credibility determination was
supported by substantial evidence, and because the IJ had no
obligation to give Wang an opportunity to provide additional
evidence, we deny the petition.
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I
Wang legally entered the United States on December 5,
2011, but overstayed the six-month period authorized by her
tourist visa. She timely applied for asylum, withholding of
removal, and CAT relief. The IJ held an initial hearing on
November 27, 2012, at which Wang conceded removability,
and a second hearing on January 3, 2013 to consider her
application for relief from removal.
At this hearing, Wang testified as follows. She was born
on November 26, 1968, and married her husband Gao Lianjun
on April 23, 1991. She gave birth to a son in February 1992,
after which her employer required her to have an intrauterine
contraceptive device (IUD) inserted, consistent with the one-
child policy then in effect. In March 2007, after a routine
gynecological exam showed that she was pregnant again,
Wang was forced to have an abortion (during which her first
IUD was removed) and to have a second IUD inserted.
Several years after these procedures, in 2011, Wang obtained
a tourist visa to visit the United States. After securing her
visa but before leaving China, she had the second IUD
removed at a private clinic. Wang also provided several
documents to corroborate this testimony, including the
marriage certificate issued to her, the marriage certificate
issued to her husband Gao Lianjun, the marriage application
that she and her husband had completed, and certain medical
records regarding her abortion.
The IJ identified a number of discrepancies in Wang’s
documentary evidence. The two marriage certificates (one
issued to Wang and one issued to Gao Lianjun) and the
marriage application contained several anomalies. Although
Wang was born on November 26, 1968, her marriage
WANG V. SESSIONS 5
certificate showed her date of birth as November 20, 1968,
with the “20” scratched out and “26” written above it. An
erroneous character in her name had also been scratched out
with the correct character written above it, and Gao Lianjun’s
date of birth had also been scratched out and replaced.
Wang’s application for a marriage certificate also erroneously
listed her birthday as November 20, 1968, as did Gao
Lianjun’s marriage certificate. The IJ also compared the
photograph of Gao Lianjun on Wang’s marriage certificate,
to his photograph on his marriage certificate, and questioned
why the two were different. It appeared that the photograph
of Gao Lianjun on Wang’s marriage certificate had been
pulled off the document and replaced with a different
photograph.
When questioned by the IJ about these discrepancies,
Wang initially explained that “the staff, from the department”
had “actually made a mistake” in filling out her birthday on
the marriage application. After the IJ noted that the
application looked like it had been filled out by Wang and her
husband, Wang conceded that “[m]aybe I wrote it wrong and
then they copied it wrong.” Wang also explained the
differences between the photographs on the two marriage
certificates. According to Wang, after an argument with Gao
Lianjun, she tore his original photograph out of her marriage
certificate, but then later replaced it with a more recent
photograph.
The IJ also raised concerns about Wang’s medical
records. Wang testified that Gao Lianjun obtained her
records from the hospital in China, but could not explain how
he obtained them and provided them to her in the United
States; she merely stated, “I didn’t ask him.” Wang also
submitted a surgery record to corroborate her claims that she
6 WANG V. SESSIONS
had been forced to have an abortion in March 2007 after her
first IUD failed. However, the IJ noted that the record had
not been fully completed, with blanks left for information
such as “contraceptive method before pregnancy” and
“failure of contraceptive control.” Wang also submitted a
statement from Gao Lianjun describing the abortion, but the
statement was unsworn. Further, although Wang claimed she
was forced to have IUDs inserted on two occasions, Wang
did not provide any medical records relating to these
procedures. In response to the IJ’s questions about her failure
to do so, Wang replied that “I don’t know that I need[ed] to
provide this.” Wang also did not provide evidence supporting
her claim that her second IUD had been removed at a private
clinic. She stated that she could not recall the date of the
procedure or the name of the clinic at which the procedure
took place, and that she did not receive any documentation
from the clinic because the procedure was considered illegal.
Finally, the IJ asked Wang why she had not submitted a
“medical book” recording her medical history. While
Wang’s attorney suggested that the lack of a medical book
could be attributable to different record-keeping standards
across different regions of China, Wang first testified that she
had not kept the records, then testified that she misplaced
them, and finally testified that she “didn’t really try to save
them.”
At the conclusion of the hearing, the IJ determined that
Wang was not credible. The IJ stated that Wang gave
equivocal testimony about the reasons for errors in the
marriage records, which raised credibility concerns. Further,
the IJ found Wang’s testimony regarding the critical events
underlying her claims for relief, such as when and where the
IUDs were inserted, to be “very vague.” Nor did the IJ find
that the documents submitted by Wang adequately
WANG V. SESSIONS 7
corroborated her testimony. Among other issues, the IJ noted
that there was no evidence corroborating the legitimacy of
Wang’s medical records; for instance, there was no chain of
custody for the records, no certificate from the hospital
attesting to the accuracy of those records, and no explanation
regarding how Wang’s husband was able to obtain them. The
IJ discounted Gao Lianjun’s written testimony because it was
not notarized, and moreover, the IJ was uncertain that Gao
Lianjun was Wang’s husband given the multiple
discrepancies in the marriage records. Further, the medical
records did not corroborate Wang’s testimony that she had
ever been forced to use an IUD, let alone twice. In light of
these and other issues, the IJ determined that Wang had not
carried her burden of establishing eligibility for asylum and
withholding of removal. The IJ also rejected Wang’s CAT
claim, which relied on the same evidence. The Board of
Immigration Appeals dismissed Wang’s subsequent appeal.
II
We have jurisdiction under 8 U.S.C. § 1252 to review
final orders of removal. Ling Huang v. Holder, 744 F.3d
1149, 1152 (9th Cir. 2014). “We review ‘denials of asylum,
withholding of removal, and CAT relief for substantial
evidence and will uphold a denial supported by reasonable,
substantial, and probative evidence on the record considered
as a whole.’” Id. (quoting Garcia-Milian v. Holder, 755 F.3d
1026, 1031 (9th Cir. 2014)). “We review factual findings,
including adverse credibility determinations, for substantial
evidence.” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir.
2014). “Factual findings ‘are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). That is,
“[t]o reverse [such a] finding we must find that the evidence
8 WANG V. SESSIONS
not only supports [a contrary] conclusion, but compels it.”
Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011)
(emphasis omitted) (second and third alterations in original)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992)).
Because Wang filed her application for relief after May
11, 2005, the REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231, controls our review. See Ling Huang, 744 F.3d at
1152. Under the REAL ID Act, “[t]here is no presumption of
credibility.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also id.
§§ 1229a(c)(4)(C), 1231(b)(3)(C). Rather, “[c]onsidering the
totality of the circumstances, and all relevant factors, a trier
of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant,” as well as “the
inherent plausibility” of the applicant’s account and the
consistency between the applicant’s statements and other
evidence in the record. Id. § 1158(b)(1)(B)(iii). These
determinations may be made “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim.” Id.
In evaluating Wang’s testimony in this case, the IJ
considered Wang’s candor, her responsiveness, and the level
of detail in her testimony, all of which are relevant factors in
evaluating the totality of the circumstances. Shrestha v.
Holder, 590 F.3d 1034, 1040 (9th Cir. 2010). The IJ also
considered the other evidence of record, including the
documents submitted by Wang to corroborate her claims, and
adequately described her concerns regarding the provenance
and reliability of those documents. Given the “healthy
measure of deference to agency credibility determinations”
required by the REAL ID Act, id. at 1041, we conclude that
WANG V. SESSIONS 9
the IJ’s adverse credibility determination here was supported
by substantial evidence.
On appeal, Wang argues that the IJ erred in her adverse
credibility ruling because she relied too heavily on her
conclusion that Wang’s documents were unreliable, failed to
identify specific inconsistencies in Wang’s testimony, and
failed to give Wang an opportunity to provide additional
evidence. These arguments misapprehend the IJ’s duty under
the REAL ID Act to assess credibility.
First, Wang argues that the IJ erred by rejecting the
reliability of her marriage certificates and medical records
without making a specific finding that these records were
forgeries. This argument fails, because the IJ has no
obligation to determine whether the documents submitted by
a petitioner are forgeries; rather, the petitioner has the burden
to satisfy the trier of fact by offering credible and persuasive
evidence. 8 U.S.C. § 1158(b)(1)(B)(ii). The IJ may consider
all relevant factors, id. § 1158(b)(1)(B)(iii), including “the
inherent plausibility” of the petitioner’s account, Ling Huang,
744 F.3d at 1153.
Relying on a pre-REAL ID Act case, see Yeimane-Berhe
v. Ashcroft, 393 F.3d 907 (9th Cir. 2004), Wang argues that
even if her records were forgeries, the IJ erred in making an
adverse credibility determination without first finding that
Wang knew of the records’ falsity. We reject this argument.
In Yeimane-Berhe, the IJ determined that the petitioner was
not credible based solely on one piece of evidence: the
government’s conclusion that a medical certificate submitted
by the petitioner was fraudulent. Id. at 908. Yeimane-Berhe
acknowledged that the use of such a fraudulent document
might, in light of the totality of the record, “lend support to an
10 WANG V. SESSIONS
adverse credibility finding,” but held that the IJ’s finding was
not supported by substantial evidence where the petitioner’s
testimony “was corroborated by other testimony and
evidence, nothing else in the record suggests she is not
credible, and there is no evidence indicating that she knew the
document was fraudulent.” Id. at 911. Even assuming we
would have reached this conclusion after the REAL ID Act
was enacted, Yeimane-Berhe is not applicable to the facts of
this case. Unlike Yeimane-Berhe, the IJ here based her
determination on a range of relevant factors, including her
perceptions of Wang’s demeanor, her observations regarding
the vagueness of Wang’s testimony, and her thorough review
of the documentary evidence that Wang submitted to support
her claims, rather than relying on just a single questionable
document.
Next, Wang argues that the IJ erred in making an adverse
credibility determination because she failed to identify
specific inconsistencies in Wang’s testimony. This
contention also fails, as an IJ may make an adverse credibility
determination even in the absence of inconsistencies in the
petitioner’s evidence or other evidence of record. 8 U.S.C.
§ 1158(b)(1)(B)(iii). As we have explained, petitioners “do
not usually face the disadvantage of an adversary from their
home countries presenting impeaching or contradictory
testimony,” and so “[a]n IJ cannot be required to accept as
true any internally consistent story from the asylum seeker.”
Singh v. Holder, 638 F.3d 1264, 1273 (9th Cir. 2011). A
consistent story does not “compel acceptance of credibility.”
Id. Rather, the IJ may “base a credibility determination” on
“the demeanor, candor, or responsiveness of the applicant or
witness, the inherent plausibility of the applicant’s or
witness’s account,” or “any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). Here, the IJ adequately identified
WANG V. SESSIONS 11
problems with Wang’s testimony and documentary evidence,
and we are not compelled to conclude that Wang was
credible.
Finally, Wang asserts that the IJ erred by failing to
provide notice that the IJ viewed Wang’s documentation as
insufficient and failing to give Wang the opportunity to
provide additional evidence. Wang bases this argument on
our decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011),
and its progeny. This argument also fails. In Ren, we
construed the REAL ID Act provision that explains how
applicants for relief may sustain their burden of proof, see 8
U.S.C. § 1158(b)(1)(B)(ii), and read the statute to include a
“sequential analysis.” Ren, 648 F.3d at 1093. Under this
framework, the IJ must first determine whether the
petitioner’s testimony alone, without corroboration, is
sufficient to sustain the petitioner’s burden of proving
eligibility for relief. Id. An applicant sustains the burden of
proof “only if the applicant satisfies the trier of fact that the
applicant’s testimony is credible, is persuasive, and refers to
specific facts sufficient to demonstrate that the applicant is a
refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii).
If the testimony is not sufficient by itself, then the IJ may
require corroborative evidence. Ren, 648 F.3d at 1093.
“Where the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credible
testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably
obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii).
If the IJ determines that corroborative evidence is
necessary, “the IJ must give the applicant notice of the
corroboration that is required and an opportunity either to
12 WANG V. SESSIONS
produce the requisite corroborative evidence or to explain
why that evidence is not reasonably available.” Ren,
648 F.3d at 1093.
Wang stumbles at the first step in Ren’s sequential
analysis, because Wang did not satisfy the IJ that her
“testimony is credible, is persuasive, and refers to specific
facts sufficient to demonstrate that [she] is a refugee.”
8 U.S.C. § 1158(b)(1)(B)(ii). The second step in Ren’s
sequential analysis is likewise inapplicable, because the IJ did
not request additional evidence to corroborate otherwise
credible testimony. Rather, the IJ evaluated the evidence
that Wang had submitted, along with “the totality of
the circumstances, and all relevant factors,” id.
§ 1158(b)(1)(B)(iii), and concluded that Wang was not
credible. The IJ therefore had no obligation to give Wang an
additional opportunity to bolster her case by submitting
further evidence. As we have previously held, an IJ does not
“have to engage in multiple iterations of the opportunity to
explain.” Rizk, 629 F.3d at 1088. 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.
Cf. id.
Without Wang’s testimony, the remaining evidence in the
record is insufficient to carry her burden of establishing
eligibility for relief. In the absence of credible testimony, the
record does not compel the conclusion that Wang has “been
forced to abort a pregnancy or to undergo involuntary
sterilization” as part of a “coercive population control
program,” 8 U.S.C. § 1101(a)(42), and Wang does not argue
otherwise. Because Wang cannot establish eligibility for
asylum, she necessarily fails to carry the greater burden of
WANG V. SESSIONS 13
establishing eligibility for withholding of removal. See Ling
Huang, 744 F.3d at 1156. And while ineligibility for asylum
and withholding of removal does not necessarily preclude
eligibility for CAT relief, see Shrestha, 590 F.3d at 1048,
Wang’s “‘claims under the [CAT] are based on the same
statements . . . that the BIA determined to be not credible’ in
the asylum context,” Singh v. Lynch, 802 F.3d 972, 977 (9th
Cir. 2015) (alterations in original) (quoting Farah v. Ashcroft,
348 F.3d 1153, 1157 (9th Cir. 2003)). Therefore, the IJ did
not err in concluding that Wang failed to show that “it is more
likely than not that . . . she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 208.16(c)(2).
PETITION DENIED.