Hong Li v. Merrick Garland ( 2021 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    HONG LI,                                    No. 18-70943
    Petitioner,
    Agency No.
    v.
    A201-040-487
    MERRICK B. GARLAND, Attorney
    General,                                     OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted October 21, 2020
    Honolulu, Hawaii
    Filed September 21, 2021
    Before: J. Clifford Wallace, Carlos T. Bea, and
    Mark J. Bennett, Circuit Judges.
    Opinion by Judge Wallace
    2                          LI V. GARLAND
    SUMMARY *
    Immigration
    Denying Hong Li’s petition for review of a decision of
    the Board of Immigration Appeals, the panel held that
    substantial evidence supported the denial of asylum and
    related relief on adverse credibility grounds.
    Considering the totality of the circumstances, the panel
    concluded that two of the Board’s four identified bases for
    its adverse credibility determination were supported by
    substantial evidence, and two were not. First, the panel
    concluded that the transcript did not support the Board’s
    determination that Li testified inconsistently regarding her
    treatment while in jail. Second, the panel concluded that Li’s
    omission regarding her husband’s employment was not a
    proper basis for the adverse credibility determination, given
    that the omission might be a collateral or ancillary omission
    that, under the totality of the circumstances, had no tendency
    to suggest Li fabricated her claim, the omitted information
    concerned adverse consequences for a third party—Li’s
    husband—and Li did not volunteer the information to bolster
    her claim, but rather the immigration judge elicited Li’s brief
    responses during cross-examination.
    The panel concluded that the Board’s final two identified
    grounds were supported by substantial evidence. First,
    observing that under the REAL ID Act credibility findings
    no longer need to go to the heart of an applicant’s claim, the
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    LI V. GARLAND                        3
    panel concluded that the Board appropriately relied upon
    Li’s submission of false information in her asylum
    application regarding her arrest record to find her not
    credible. The panel wrote that the Board was not compelled
    to accept Li’s explanation for the discrepancy—that she was
    reasonably mistaken about the difference between an arrest
    and a conviction—given that the explanation was
    implausible, and particularly because she was assisted by
    counsel. Next, the panel concluded that under the totality of
    the circumstances, Li’s submission of false information in
    her visa application regarding her employment also
    supported the Board’s adverse credibility determination.
    The panel explained that while this factor alone might not
    support an adverse credibility finding, it was an appropriate
    factor to consider here, where Li made no attempt during her
    hearing to explain why she needed to provide the false
    information.
    COUNSEL
    Albert S. Chow (argued), Lin & Chow, Monterey Park,
    California, for Petitioner.
    Andrew B. Insenga (argued), Trial Attorney; Jonathan
    Robbins, Senior Litigation Counsel; Joseph H. Hunt,
    Assistant Attorney General; Office of Immigration
    Litigation, Civil Division, United States Department of
    Justice, Washington, D.C.; for Respondent.
    4                      LI V. GARLAND
    OPINION
    WALLACE, Circuit Judge:
    Petitioner Hong Li seeks review of the decision of the
    Board of Immigration Appeals (Board), which affirmed the
    Immigration Judge’s (IJ) denial of her applications for
    asylum, withholding of removal, and relief under the
    Convention Against Torture (CAT) on adverse credibility
    grounds. We have jurisdiction pursuant to 
    8 U.S.C. § 1252
    .
    Reviewing the Board’s findings for substantial evidence,
    Shrestha v. Holder, 
    590 F.3d 1034
    , 1039 (9th Cir. 2010), we
    deny the petition for review.
    I.
    Li is a native and citizen of the People’s Republic of
    China. She entered the United States in July 2010 on a non-
    immigrant business visa with permission to remain in the
    country until January 2011. In February 2011, after Li’s visa
    expired, the Department of Homeland Security served Li
    with a Notice to Appear in immigration court, charging her
    with removability. Li conceded she was removable and
    requested asylum, withholding of removal, and CAT relief.
    In Li’s asylum application, which she signed as true
    before the IJ while represented by counsel, she claimed that
    she was persecuted because of her membership in a house
    church that is not registered with the Chinese government.
    In March 2010, when Li and other church members met for
    a house church meeting, the police arrived and arrested Li
    and the others for an illegal gathering. Li stated that a police
    officer interrogated her, accused her of wanting to overthrow
    the Chinese government, and slapped her twice and kicked
    her.
    LI V. GARLAND                          5
    Li first appeared before the IJ in 2011. After various
    delays, the IJ heard Li’s testimony six years later in April
    2017. At this hearing, the government informed the IJ that
    it had discovered Li’s undisclosed 2013 arrest record for
    prostitution in Washington.
    During the hearing, Li testified about her treatment in jail
    in China, her husband’s employment and termination, her
    asylum application, and her visa application. For example,
    Li asserted on direct examination that “they did not allow me
    to eat meals” for four days while she was in jail, which she
    said resulted in a stomach disease.              During cross-
    examination, the government asked about the denial of food,
    and Li responded, “They gave me something, but I only ate
    something the third day in the morning, a little bit of
    porridge. The fellow prisoners in the cell, they did not allow
    me to eat.” The government asked why Li said she was not
    given food, and Li stated that “[t]hey did give me food, but
    it’s the other two fellow prisoners, they did not let me eat.”
    When the IJ asked why Li did not testify as such on direct
    examination, Li answered, “[W]hat I meant was, the fellow
    inmates did not let me eat, not that they did not give me
    food,” and she explained that “[t]hat’s what I meant to say.
    Maybe I did not express it well.”
    The IJ asked if Li’s husband had ever lost his job, and Li
    answered that her husband had been fired from his job as a
    teacher. The IJ asked why Li’s husband had lost his job, and
    Li answered, “The school claims that he had collusion with
    the—or contact with the evil religion, so the school
    dismissed him.” The IJ asked what her husband now does
    for work, and Li replied that he is a truck driver. When the
    IJ asked Li why her husband’s letter of support did not
    mention that he was fired because of Li’s religious activities,
    6                       LI V. GARLAND
    Li replied that she did not know what her husband wrote and
    did not read the letter until it arrived in the mail from China.
    The IJ also questioned Li about her submission of false
    information in her asylum application. For example, Li
    answered “No” in response to the application’s question
    “Have you or any member of your family included in the
    application ever committed any crime and/or been arrested,
    charged, convicted, or sentenced for any crimes in the
    United States?” When the IJ asked Li why she did not
    disclose the 2013 arrest, Li replied that the judge and her
    attorney in the criminal proceedings told her that the charge
    would be dismissed and that there would be no criminal
    record, which she interpreted as meaning that she was not a
    “convicted person” or a “criminal person.” The IJ
    highlighted that the question was broader and encompassed
    arrests as well as convictions, and Li repeated the same
    explanation for her failure to disclose the arrest.
    Finally, Li answered questions about false information
    in her visa application. In her visa application, Li stated that
    she worked as a treasurer for a company that produces wine.
    After being questioned by the IJ and the government, Li
    conceded during cross-examination that the information she
    provided in her visa application regarding her previous work
    experience at the wine company and her role for the
    company were false. Li did not assert that the false
    information was necessary to escape persecution in China.
    The IJ denied Li’s application based on an adverse
    credibility determination. The IJ cited numerous reasons for
    the adverse credibility determination, including but not
    limited to: the discrepancies relating to Li’s treatment in jail,
    her husband’s termination, the false information she
    provided in her visa application, and the false information
    she provided in her asylum application. The Board affirmed
    LI V. GARLAND                           7
    the IJ’s adverse credibility determination and cited these
    discrepancies for its decision.
    The Board also upheld the IJ’s determination that, even
    if Li were credible, she did not establish her eligibility for
    asylum on the merits of her claim because she did not show
    that the harm she suffered in China rose to the level of past
    persecution.
    II.
    First, it bears calling attention to the pivotal effect of the
    REAL ID Act on immigration proceedings and our review,
    especially as some parties continue to cite pre-enactment
    case law that the REAL ID Act made obsolete. Ultimately,
    the REAL ID Act expanded the appropriate bases of an IJ’s
    adverse credibility determination.
    For applications for asylum, withholding of removal, and
    CAT relief made on or after May 11, 2005, the REAL ID
    Act created the following new standards governing adverse
    credibility determinations:
    Considering 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 or witness, the inherent plausibility
    of the applicant’s or witness’s account, the
    consistency between the applicant’s or
    witness’s written and oral statements . . . , the
    internal consistency of each such statement,
    the consistency of such statements with other
    evidence of record . . . , and any inaccuracies
    or falsehoods in such statements, without
    regard to whether an inconsistency,
    8                     LI V. GARLAND
    inaccuracy, or falsehood goes to the heart of
    the applicant’s claim, or any other relevant
    factor.
    Pub. L. No. 109–13, Div. B, §§ 101(a)(3), 101(c), 101(d),
    
    119 Stat. 231
    , 303–04 (2005) (codified at 
    8 U.S.C. §§ 1158
    (b)(1)(B)(iii), 1231(b)(3)(C),      1229a(c)(4)(C))
    (emphasis added). On this point alone, the REAL ID Act is
    a watershed statute.
    While we had held prior to the REAL ID Act that
    inconsistencies forming the basis of an adverse credibility
    determination should go to the heart of a petitioner’s claim,
    “under the REAL ID Act credibility findings no longer need
    to go ‘to the heart of the applicant’s claim.’” Malkandi v.
    Holder, 
    576 F.3d 906
    , 918 (9th Cir. 2009), quoting 
    8 U.S.C. § 1158
    (b)(1)(B)(iii). “The explicit statutory language and
    purpose behind the statutory change totally demolish [the]
    argument that inconsistencies must go to the heart of his
    claim.” Shrestha, 
    590 F.3d at 1046
    .
    This statutory change also has significant consequences
    on our review of Board decisions to uphold IJ adverse
    credibility determinations. Before and after the enactment
    of the REAL ID Act, we reviewed Board decisions for
    substantial evidence and were required to accept “[f]actual
    findings [as] conclusive unless any reasonable adjudicator
    would be compelled to conclude to the contrary.” Garcia v.
    Holder, 
    749 F.3d 785
    , 789 (9th Cir. 2014), quoting 
    8 U.S.C. § 1252
    (b)(4)(B). As inconsistencies that form the basis of
    an adverse credibility determination no longer need to go to
    the heart of a petitioner’s claim, we need not consider
    whether an inconsistency identified by the IJ or Board is
    central.
    LI V. GARLAND                          9
    We have continued to clarify how, pursuant to the REAL
    ID Act, other factors, such as omissions, can form the basis
    of an adverse credibility determination. See Lai v. Holder,
    
    773 F.3d 966
    , 971 (9th Cir. 2014) (“In general, however,
    omissions are less probative of credibility than
    inconsistencies created by direct contradictions in evidence
    and testimony.”); see also Iman v. Barr, 
    972 F.3d 1058
    , 1067
    (9th Cir. 2020) (holding that while “[o]missions need not go
    to the heart of a claim,” “[a] collateral or ancillary omission
    that, under the totality of the circumstances, has no tendency
    to suggest an applicant fabricated her or his claim is likewise
    insufficient     to    support      an   adverse      credibility
    determination”). In Iman, we held that a petitioner’s
    omission was not a proper basis for the IJ’s adverse
    credibility determination, in part because the omission did
    not bolster his claim, 
    id.
     at 1068–69, citing Zamanov v.
    Holder, 
    649 F.3d 969
    , 974 (9th Cir. 2011), and in part
    because the petitioner’s testimony was not volunteered but
    rather was elicited through the government’s cross-
    examination, 
    id. at 1068
    . Our decision in Iman clarifies the
    extent to which omissions may form the basis of an adverse
    credibility determination. Nevertheless, the plain text of the
    REAL ID Act makes clear that inconsistencies need not go
    to the heart of a petitioner’s claim, and our court continues
    to hold that “[u]nder the REAL ID Act, even minor
    inconsistencies that have a bearing on a petitioner’s veracity
    may constitute the basis for an adverse credibility
    determination.” Ren v. Holder, 
    648 F.3d 1079
    , 1089 (9th
    Cir. 2011), citing Shrestha, 
    590 F.3d at 1044
    .
    In the end, petitioners carry a substantial burden to
    convince us to overturn a Board decision denying relief on
    credibility grounds, particularly when the Board has adopted
    multiple bases for its adverse credibility determination.
    Although in numerous cases post-REAL ID Act, we had
    10                     LI V. GARLAND
    applied the single factor rule, which required us to uphold an
    adverse credibility determination so long as even one basis
    is supported by substantial evidence, see e.g., Lizhi Qiu v.
    Barr, 
    944 F.3d 837
    , 842 (9th Cir. 2019), we overruled those
    cases en banc in Alam v. Garland, see No. 19-72744, 
    2021 WL 4075331
    , at *5 (9th Cir. Sept. 8, 2021) (en banc) (“To
    the extent that our precedents employed the single factor rule
    . . . , we overrule those cases.”). After Alam, “[t]here is no
    bright-line rule under which some number of inconsistencies
    requires sustaining or rejecting an adverse credibility
    determination.” 
    Id.
     Rather, “in assessing an adverse
    credibility finding under the [REAL ID] Act, we must look
    to the ‘totality of the circumstances[] and all relevant
    factors.” 
    Id.,
     quoting 
    8 U.S.C. § 1158
    (b)(1)(B)(iii).
    III.
    With this clarification, we now review the
    inconsistencies and omissions that formed the basis of the
    Board’s decision. “When the [Board] conducts its own
    review of the evidence and law rather than adopting the IJ’s
    decision, our review is limited to the [Board’s] decision,
    except to the extent that the IJ’s opinion is expressly
    adopted.” Shrestha, 
    590 F.3d at 1039
     (citation and quotation
    marks omitted). In adopting the IJ’s adverse credibility
    determination, the Board expressly relied on four
    inconsistencies or omissions relating to Li’s treatment in jail,
    her husband’s termination, the false information provided in
    her asylum application, and the false information provided
    in her visa application. Even though the discrepancies
    regarding Li’s treatment in jail and her husband’s
    employment are not necessarily probative of Li’s lack of
    veracity, her submission of false information in her asylum
    and visa applications are inconsistencies sufficient to
    support the adverse credibility determination.
    LI V. GARLAND                         11
    First, the Board relied on the IJ’s finding that Li’s
    testimony regarding her treatment in jail on cross-
    examination was inconsistent with that on direct
    examination. Although the IJ and Board identified a
    discrepancy in Li’s responses, the transcript reveals no such
    inconsistency. On direct examination, Li testified that
    “they” did not allow her to eat, and on cross-examination,
    she stated that while the prison guards gave her food to eat,
    her fellow inmates did not allow her to eat that food. Upon
    hearing her response, the government asked why Li said she
    was not given any food. However, the transcript shows that
    Li never said she was not given food. We understand that
    Li’s use of pronouns with ambiguous antecedents might
    have been misleading, but that itself does not produce an
    inconsistency.
    Second, Li’s omission regarding her husband’s
    employment was not a proper basis for the adverse
    credibility determination. During the government’s cross-
    examination, Li explained that her husband lost his job as a
    teacher because of her religious activities. She could not
    explain why her husband did not mention the termination in
    his letter of support. The transcript suggests that this might
    be a collateral or ancillary omission that, under the totality
    of the circumstances, has no tendency to suggest Li
    fabricated her claim. See Iman, 972 F.3d at 1067. The
    omitted information concerned adverse consequences for a
    third party, Li’s husband. See id. at 1068; see also Lai, 773
    F.3d at 973–74 (holding that “initial omission of incidents
    affecting only third parties [was] less probative of
    credibility” because “asylum claims ordinarily are centered
    around events and circumstances that the applicants have
    experienced directly”). Moreover, Li did not volunteer the
    information to bolster her claim, but rather the IJ elicited Li’s
    brief responses during cross-examination. Compare Lai,
    12                     LI V. GARLAND
    773 F.3d at 973 (finding it implausible an applicant would
    seek to bolster a claim only through responses to government
    questioning) with Silva-Pereira v. Lynch, 
    827 F.3d 1176
    ,
    1186 (9th Cir. 2016) (upholding adverse credibility
    determination based on omitted information where newly
    introduced information contained allegations crucial to
    establishing the petitioner’s claim).           Li’s omitted
    information regarding her husband’s termination is
    insufficient to support an adverse credibility determination.
    We now turn to the first of the two remaining
    discrepancies relied upon by the Board: Li’s submission of
    false information in her asylum application regarding her
    arrest record. “Under the REAL ID Act credibility findings
    no longer need to go ‘to the heart of the applicant’s claim.’”
    Malkandi, 
    576 F.3d at 918
    , quoting 
    8 U.S.C. § 1158
    (b)(1)(B)(iii).     In her asylum application, Li
    submitted false information that she had never been arrested
    for any crime in the United States. Li argues that, because
    the charge was dismissed, she felt that she was “not
    convicted as a criminal,” and her failure to “understand the
    difference between an arrest and a conviction [was]
    reasonable.” However, she cites no authority for the
    proposition that an IJ must accept a petitioner’s explanation
    that the submission of false information was based on a
    reasonable mistake when evaluating a petitioner’s
    credibility. Moreover, it is significant that Li had counsel
    when she signed her asylum application before the IJ,
    representing that its contents were true, and such an
    interpretation of the asylum application’s question about
    prior arrests and convictions is implausible. Indeed, even if
    Li and her counsel’s interpretation were reasonable, the IJ
    and Board were not compelled to accept her explanation for
    the discrepancy. Lianhua Jiang v. Holder, 
    754 F.3d 733
    ,
    740 (9th Cir. 2014) (holding that requiring the IJ to accept
    LI V. GARLAND                        13
    the petitioner’s alternative plausible interpretation would
    amount to improper de novo review), overruled on other
    grounds by Alam, 
    2021 WL 4075331
    . Particularly because
    Li was assisted by counsel, the Board and IJ were not
    required to accept Li’s explanation for the discrepancy, and
    the record does not compel a contrary conclusion.
    We also highlight that Li cites Wang v. Ashcroft, 
    341 F.3d 1015
    , 1021–22 (9th Cir. 2003), a pre-REAL ID Act
    opinion, for the proposition that an inconsistency must be
    material to affect an asylum or withholding claim. However,
    this is no longer the case under the REAL ID Act, and even
    minor inconsistencies may have a legitimate impact on a
    petitioner’s credibility. Shrestha, 
    590 F.3d at 1044
    . Indeed,
    in Shrestha, we stated that “[w]e do not intend to suggest that
    under the totality of the circumstances each inconsistency
    must be material in the sense of important to the petitioner’s
    well-founded fear of persecution; such a requirement would
    contradict the REAL ID Act’s plain text.” 
    Id.
     at 1043 n.4.
    Her brief’s reliance on pre-REAL ID Act case law was
    misleading because it is no longer valid law. More
    importantly, Li’s submission of false information in her
    asylum application is a major inconsistency.
    Under the totality of circumstances, Li’s submission of
    false information regarding her employment as treasurer for
    a firm that produced wine in her visa application also
    supports the Board’s adverse credibility determination.
    While this factor alone might not support an adverse
    credibility finding, see Singh v. Holder, 
    638 F.3d 1264
    , 1271
    (9th Cir. 2011) (explaining that false statements used to flee
    persecution generally do not undermine credibility), it is an
    appropriate factor to consider here, where Li made no
    attempt during her hearing to explain why she needed to
    provide the false information.
    14                     LI V. GARLAND
    These two inconsistencies are both supported by
    substantial evidence and are sufficient to support the adverse
    credibility determination. We do not consider the Board’s
    alternate holding that Li failed to show past persecution. The
    record does not compel the conclusion that the adverse
    credibility determination was erroneous. The petition for
    review is DENIED.
    

Document Info

Docket Number: 18-70943

Filed Date: 9/21/2021

Precedential Status: Precedential

Modified Date: 11/11/2021