Heyi Shao v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEYI SHAO, No. 15-72808
Petitioner, Agency No. A089-893-002
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2021**
Pasadena, California
Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.
Petitioner Heyi Shao, a Chinese national, seeks review of a Board of
Immigration Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
final order of removal based on an adverse credibility finding. We have jurisdiction
under 8 U.S.C. § 1252 to review final orders of removal issued by the BIA. We
*
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).
review BIA denials of asylum, withholding of removal, and relief under the
Convention Against Torture, including adverse credibility determinations, for
substantial evidence. Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). This
court recently replaced the “single factor” test for adverse credibility determinations
with a totality of the circumstances test. Alam v. Garland, 11 F.4th 1133, 1137 (9th
Cir. 2021) (en banc). Therefore, we apply a totality of the circumstances test to
determine whether the IJ’s decision was supported by substantial evidence. See id.We deny the petition.
Shao claims that he was introduced to Christianity in China after his divorce
in 2006 and then arrested and detained on June 22, 2008, for organizing and
attending a house church gathering. Upon his release, Chinese authorities closed the
restaurant Shao owned and revoked his business license. Shao entered the United
States on a B-1 visa in 2008. He applied for asylum, withholding of removal, and
protection under the Convention Against Torture on January 2, 2009. An IJ denied
his application based on his “insincere” and “materially inconsistent” testimony on
September 26, 2013. Shao appealed the IJ’s decision to the BIA, which dismissed
Shao’s appeal based on a series of inconsistencies in Shao’s testimony on August
11, 2015.
When reviewing BIA decisions, we “consider only the grounds relied upon
by that agency,” Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011)
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(citation omitted), and may not affirm upon grounds the BIA did not rely upon itself,
Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). We conclude that the BIA
decision was supported by substantial evidence.
1. When testifying before the IJ about a restaurant he owned in China, Shao
stated that he opened it in China in 1992. But in his asylum application, Shao stated
that he opened the restaurant in 1999. When Shao was confronted with this
discrepancy, he replied that the restaurant was “not really full-fledged” until 1999.
Shao argues that he was not provided a “reasonable opportunity to offer an
explanation of [the] perceived inconsistencies that form[ed] the basis of” the denial
of his asylum claim. Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999).
This argument, however, does not align with the facts. Not only does the
record demonstrate that Shao was expressly asked why there was a discrepancy, but
he was also given a chance to explain it. Shao offered neither any evidence for the
existence of the restaurant, nor an explanation for the discrepancy in his testimony.
2. Shao stated that he first married in 1983, but then divorced, reconciled, and
later divorced the same woman again in 2006. He claims that the difficulty in
dealing with his divorce prompted his interest in Christianity.
Shao submitted a 2011 letter from a friend in China that states that Shao’s
“wife” told the friend of the persecution Shao faced for being Christian. But Shao
testified that he had not spoken to his wife since their divorce, which he testified was
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before he became a Christian. Shao also submitted his household registration, which
listed his marital status as married. He testified that the information in the
registration was current and accurate but later said that he neglected to update his
marital status because his wife moved to another district.
Shao argues that because his relationship with his wife was “discontinuous in
nature, it is highly plausible that his friend may still refer to Shao’s former spouse
as his wife.” While this argument may be persuasive, it fails to explain how his
friend could have learned about Shao’s persecution from someone who Shao
testified that he had not spoken to. Shao also failed to offer a plausible explanation
for why his marital status was listed incorrectly on his household registration.
3. In addition to addressing his marital status, Shao’s household registration
listed him as being employed in a medicine factory. Shao’s only explanation about
this contradictory statement was that he worked in the medicine factory “back in
1980.” Additionally, Shao’s asylum application listed a continuous address in
China, but the register states that he moved in 2004.
Shao simply argues that “he has presented a plausible and persuasive
explanation for his statements at trial in regard to the information contained in his
household register.” But we uphold the BIA’s determination when it was supported
by substantial evidence, as it was here. The record demonstrates that when
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confronted with these inconsistencies, Shao was either non-responsive or
unpersuasive, and Shao has not offered evidence that compels a different finding.
4. Finally, Shao testified and presented evidence that he attends a Lutheran
Church in Monterey Park and that he was baptized at the Bread of Life Church. Shao
presented a witness, however, who testified that Shao attends a Salvation Army
church in San Gabriel and was baptized at the Church of Glory.
Shao makes neither a factual nor a legal argument here that persuasively
resolves this inconsistency. Shao testified after his witness, but his follow-up did
nothing to resolve the conflicting testimony. Therefore, the BIA’s ruling on Shao’s
practice of Christianity in the United States was supported by substantial evidence.
Because each of the grounds for the decision was supported by substantial
evidence, the totality of the circumstances support the BIA’s adverse credibility
ruling, and we deny the petition.
PETITION DENIED.
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