Yan Ma v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAN MA, No. 15-73672
Petitioner, Agency No. A205-183-977
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 18, 2021**
Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District
Judge.
Petitioner Yan Ma petitions for review of the Board of Immigration
Appeals’ decision denying relief on her applications for asylum, withholding of
*
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).
***
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
removal, and protection under the Convention Against Torture (CAT). Ma sought
relief due to her opposition to China’s Family Planning Policy. We have
jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the petition for relief.
The decisions of the Immigration Judge (IJ) and the Board (collectively, the
Agency) relied on the IJ’s adverse credibility findings, which were based on
inconsistencies in Ma’s statements and oral testimony. In her opening brief, Ma
argues only that the Board’s adverse credibility finding is not supported by
substantial evidence and that the Board erred in finding that she lacked sufficient
evidence to support her CAT claim.1 Adverse credibility findings are factual
determinations that we review under the substantial evidence test, and we may not
reverse them unless we find that “any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Etemadi v. Garland, __
F.4th__; 2021 WL 4097494, at *5 (9th Cir. Sept. 9, 2021) (quotation marks and
citation omitted).
1. Substantial evidence supports the IJ’s adverse credibility finding. The
IJ discussed in detail his specific and cogent reasons for finding that Ma did not
1
Ma waived any argument as to her asylum or withholding of removal
claims by failing to “specifically and distinctly argue[] and raise[]” these issues in
her opening brief. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1070 (9th Cir.
2005) (quotation marks and citation omitted). These arguments would have failed
regardless for the same reason that her CAT claim fails. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Lalayan v. Garland, 4 F.4th 822, 836 (9th Cir. 2021).
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present a credible claim. For example, Ma testified that she was self-employed
running a newsstand at the time of her second pregnancy but also testified that her
factory work unit discovered and reported her pregnancy to Family Planning
Officials. Because Ma cannot establish that a reasonable factfinder “would be
compelled” to credit her testimony, we accept the Agency’s credibility findings as
conclusive. See Garland v. Ming Dai, 141 S. Ct. 1669, 1681 (2021); Molina-
Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).
2. Ma has not carried her burden of establishing that it is more likely
than not that she will be tortured if she is returned to China. See Xochihua-Jaimes
v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). She has presented no credible
evidence that she suffered physical abuse by government officials or that she faces
a clear probability of future torture if removed. See Ming Dai, 141 S. Ct. at 1681.
The petition for review is DENIED.
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