Junkai Wang v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUNKAI WANG, No. 15-73130
Wang, Agency No. A201-046-626
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2021**
Pasadena, California
Before: R. NELSON and VANDYKE, Circuit Judges, and SCHREIER,*** District
Judge.
Junkai Wang, a citizen of China, petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s denial
*
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 Karen E. Schreier, United States District Judge for the
District of South Dakota, sitting by designation.
of his applications for asylum and withholding of removal under the Immigration
and Nationality Act, and deferral of removal under the Convention Against Torture
(“CAT”). “We have jurisdiction under 8 U.S.C. § 1252 to review final orders of
removal,” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and deny the
petition.
“We review factual findings, including adverse credibility determinations,
for substantial evidence.” Id. (quoting Garcia v. Holder, 749 F.3d 785, 789 (9th
Cir. 2014)). This means that for us “to reverse such a finding we must find that the
evidence not only supports a contrary conclusion, but compels it.” Id. (cleaned
up). “In assessing an adverse credibility finding . . . we must look to the totality of
the circumstances and all relevant factors.” Alam v. Garland, ___ F.4th ___, No.
19-72744, 2021 WL 4075331, at *5 (9th Cir. 2021) (en banc) (cleaned up).
Wang admits that he lied under oath when he first claimed to have lived in
New York for “around five days,” before later conceding, when confronted with
contrary evidence, that he lived there “three to four months.” His only explanation
for his dishonesty was that his prior counsel instructed him to lie. The IJ noticed
that Wang appeared to have a different demeanor when he lied. For example,
when asked “a question about New York, [Wang would] turn [his] head and pull
[his] ear.” See Huang v. Holder, 744 F.3d 1149, 1153 (9th Cir. 2014) (“an IJ may
base an adverse credibility determination on the demeanor . . . of the applicant”
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and the “IJs are in the best position to assess demeanor and other credibility cues
that we cannot readily access on review” (cleaned up)). The IJ found this to be a
material misstatement under oath because this could represent forum shopping and
impact which immigration judge heard Wang’s petition. And “even minor
inconsistencies going to the heart of a petitioner’s claim may, when considered
collectively, deprive the claim of the requisite ring of truth.” Rizk v. Holder, 629
F.3d 1083, 1088 (9th Cir. 2011) (cleaned up).
Wang also provided conflicting testimony and documentation about his
participation in the Social Democratic Party (“SDP”). Although Wang testified
that he only “attended their meeting once,” he previously provided documentation
indicating he was “on the staff” of the group, and a letter from the group said he
“help[ed] organize events and prepare materials . . . [and] consistently and actively
participated in many of the protests and marches.” The IJ once again noticed a
change in Wang’s demeaner when discussing his involvement, remarking that
“when the Government” was questioning Wang about the SDP, “it looked like
[Wang was] trying not to laugh.” When confronted with this discrepancy, Wang
explained that the SDP taught him to lie about his involvement in the group and
that his former counsel had urged him to include documents suggesting he had
greater involvement in the group. See Manes v. Sessions, 875 F.3d 1261, 1264–65
(9th Cir. 2017) (petitioner “cannot dispel an inconsistency between his testimony
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and the evidence of record by attempting to discredit the reliability of his own
evidence after the fact”). While Wang did not ultimately rely on his involvement
with this group in his claims, his repeated explanation that he had been coached to
lie to the IJ reflects negatively on his credibility.
Taken together, substantial evidence supports the BIA’s adverse credibility
determination. And without his credible testimony, Wang fails to establish his
eligibility for asylum, withholding of removal, or relief under CAT.
PETITION DENIED.
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