Lina Qin v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINA QIN; YONG MA, No. 16-72455
Petitioners, Agency No. A205-538-339
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2022**
Pasadena, California
Before: IKUTA, NGUYEN, and OWENS, Circuit Judges.
Lina Qin, a native and citizen of China, petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision dismissing her appeal of the immigration
judge’s (“IJ”) decision denying her application (and the rider application of her
husband, Yong Ma) for asylum, withholding of removal, and protection under the
*
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).
Convention Against Torture (“CAT”). As the parties are familiar with the facts,
we do not recount them here. We have jurisdiction under 8 U.S.C. § 1252, and we
review adverse credibility determinations and denials of asylum, withholding, and
CAT relief for substantial evidence. Wang v. Sessions, 861 F.3d 1003, 1007 (9th
Cir. 2017). We deny the petition for review.
Qin first challenges the adverse credibility determination. But at least three
of the four grounds the BIA cited in upholding the IJ’s adverse credibility
determination are supported by substantial evidence. First, the transcripts of Qin’s
and Ma’s testimony support the existence of inconsistencies about who received
the threats of sterilization.
Second, substantial evidence supports the determination that contradictions
regarding the timeline of Qin’s actions prior to the abortion procedure existed
within her testimony and also between the bulk of the petitioners’ testimony on one
hand and Qin’s asylum statement and her mother’s letter on the other. Qin argues
that her written statement can be interpreted such that it is consistent with her
testimony. But because there are two plausible interpretations of her statement,
“[i]t cannot be said . . . that the evidence compels the interpretation of the evidence
advocated by the Petitioner . . . .” Jiang v. Holder, 754 F.3d 733, 740 (9th Cir.
2014), overruled on other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir.
2021).
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Third, substantial evidence supports the finding that Qin “testified
inconsistently regarding her level of resistance when she was taken to the operating
room” and “also omitted references to resisting the family planning officials and
being restrained during the abortion procedure from her asylum statement.” Qin
argues that her testimony about her level of resistance was not inconsistent, but a
“reasonable adjudicator would not necessarily be compelled” to interpret Qin’s
testimony in the way she proposes. Lalayan v. Garland, 4 F.4th 822, 838 (9th Cir.
2021). Further, the BIA permissibly treated Qin’s omissions as probative of
credibility because a reasonable adjudicator could classify the new facts as a form
of suspicious bolstering. See Iman v. Barr, 972 F.3d 1058, 1068 (9th Cir. 2020)
(“[O]missions are probative of credibility to the extent that later disclosures, if
credited, would bolster an earlier, and typically weaker, asylum application.”).
We need not consider the BIA’s fourth ground for upholding the adverse
credibility determination because, even if that ground is not supported by
substantial evidence, a reasonable adjudicator could find that the first three
inconsistencies justified an adverse credibility determination under the totality of
the circumstances. See Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir.
2010). Although Qin argues that the inconsistencies are cherry-picked and trivial,
the BIA did not act impermissibly when it concluded that the inconsistencies were
related to the heart of the asylum claim, rendering them particularly weighty. See
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id. at 1046-47 (“Although inconsistencies no longer need to go to the heart of the
petitioner’s claim, when an inconsistency is at the heart of the claim it doubtless is
of great weight.”).
Qin next argues that she is eligible for asylum. To the extent that she argues
that her documentary evidence alone meets her burden, substantial evidence
supports the BIA’s contrary conclusion. The BIA permissibly weighed the IJ’s
finding that some documentary evidence contained inconsistencies and its own
conclusion about the value of the abortion certificate “with other evidence of
record” to conclude that Qin was not eligible for asylum. Garland v. Dai, 141 S.
Ct. 1669, 1680 (2021). Qin alternatively argues that she is eligible for withholding
of removal, but “an applicant who is unable to show a ‘reasonable possibility’ of
future persecution [to demonstrate eligibility for asylum] ‘necessarily fails to
satisfy the more stringent standard for withholding of removal.’” Silva v. Garland,
993 F.3d 705, 719 (9th Cir. 2021) (citation omitted).
Finally, Qin argues that she is entitled to relief under the CAT. But contrary
to her contention, the BIA did not decide her claim in an improperly cursory
manner. Rather, the BIA (and the IJ, with whom the BIA agreed) permissibly
concluded that the country conditions reports did not show that Qin faces a
particularized risk of torture. See Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th
Cir. 2008).
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PETITION FOR REVIEW DENIED.
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