Ying Qu v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
DEC 2 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YING QU, No. 15-72811
Petitioner, Agency No. A201-201-315
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 Ying Qu argues that the BIA erred in affirming the IJ’s adverse
credibility finding. Because substantial evidence supports the BIA’s decision, see
*
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).
Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016), Qu’s petition is
denied.
When an adverse credibility determination is supported in part by lack of
corroboration, we “undertake a two-step process.” Bhattarai v. Lynch, 835 F.3d
1037, 1043 (9th Cir. 2016). “First, we separate out the non-corroboration grounds
for the adverse credibility determination and evaluate whether the IJ and BIA’s
determination is supported by substantial evidence.” Id. If the determination is
supported by substantial evidence, we affirm. Id. But if it is not, and “only issues
regarding lack of corroboration remain, we next ask whether the IJ satisfied Ren’s
notice requirement.” Id. If the IJ did not satisfy that requirement, we remand. Id.at 1043–44.
Qu first challenges the IJ’s demeanor finding. In particular, she challenges
the BIA’s upholding of the IJ’s determination that she was evasive and
nonresponsive. However, the record does not compel a contrary conclusion.
Villalobos Sura v. Garland, 8 F.4th 1161, 1167 (9th Cir. 2021). When Qu was
asked why she did not attend school in the United States after getting a student visa
for that purpose and having paid tuition already, she responded that she did not
leave China to go to school and she could not afford it. This was after Qu had
testified that she had wanted to continue attending school in China but could not
afford to. In essence, Qu was asked to square one part of her testimony with
another part, but instead she just repeated what she had already said. While one
might charitably consider her testimony responsive, we cannot substitute our
judgement for that of the BIA’s. Aden v. Holder, 589 F.3d 1040, 1046 (9th Cir.
2009).
The BIA additionally relied on inconsistencies within Qu’s testimony and
between her testimony and her written application. Qu asserts that she was not
given an opportunity to explain the inconsistencies between her testimony and her
written asylum statement concerning the principal instance of past persecution. Qu
is incorrect. Once the IJ made the adverse credibility determination, Qu was put
on notice that she must explain all inconsistencies to the BIA. Pal v. INS, 204 F.3d
935, 939 (9th Cir. 2000). Qu, in her brief to the BIA, attempted to downplay her
inconsistencies by attacking them as minor in nature. However, inconsistencies
concerning her principal instance of past persecution are hardly minor in nature.
See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011).
As to the inconsistencies within her testimony, Qu asserts that she provided
plausible explanations. Even if the BIA did err in its analysis of some
inconsistencies, considering the totality of the circumstances, see Alam v. Garland,
11 F.4th 1133, 1135 (9th Cir. 2021), the record does not compel overturning the
agency’s adverse credibility determination.
Given the agency’s demeanor finding, Qu’s failure to produce corroborative
evidence in her possession, and the inconsistencies between Qu’s written
application and oral testimony, we find that the BIA’s determination is supported
by substantial evidence. Because these non-corroboration grounds are substantial
evidence supporting the BIA’s determination, we need not reach the corroboration
grounds. The petition for review is DENIED.