Haijun Hu v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAIJUN HU, No. 20-72228
Petitioner, Agency No. A209-939-871
v.
MEMORANDUM * 0F
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2021**
Pasadena, California
Before: BYBEE and BENNETT, Circuit Judges, and BATAILLON, *** Senior 1F
District Judge.
*
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 Joseph F. Bataillon, Senior United States District
Judge for the District of Nebraska, sitting by designation.
Petitioner Haijun Hu, a native of China, seeks review of a decision of the
Board of Immigration Appeals (“BIA”). The BIA affirmed the Immigration Judge’s
(“IJ”) denial of Petitioner’s applications for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). We have jurisdiction under
8 U.S.C. § 1252 and deny the petition in part and dismiss in part.
Petitioner illegally entered the United States on or about February 17, 2017.
Petitioner filed an affirmative asylum application with United States Citizenship and
Immigration Services (“Service”). The Service then referred the application to the
Los Angeles Immigration Court and issued a Notice to Appear. Petitioner contends
he was arrested and persecuted in China for attending “house church” and for
practicing Christianity. He states he was detained for 15 days, interrogated, and
severely beaten. If returned to China, he contends he will be persecuted by Chinese
government officials.
The IJ denied Petitioner’s request for asylum, withholding of removal, and
CAT protection. The IJ found Petitioner not credible. The IJ determined that the
information on Petitioner’s visa application was false, including his identity. The IJ
also determined that Petitioner likewise submitted false documents, including his
baptismal certificate, which was facially altered. Petitioner also testified as to
inconsistences regarding attending church. The IJ gave credence to the torture
occurring in China but determined that Petitioner failed to establish that it was “more
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likely than not” that he would be subject to torture by the Chinese government if he
returned to China.
The BIA affirmed the IJ’s denial of Petitioner’s applications for asylum,
withholding of removal, and relief under the CAT. The BIA determined that the IJ
was not clearly erroneous as to her credibility findings and stated that in an absence
of past persecution, Petitioner failed to show he would be persecuted if he returned
to China. Petitioner filed for a stay of removal, which this court granted.
Petitioner challenges the denial of his withholding and CAT claims in his
opening brief. The Government correctly argues, however, that Petitioner did not
raise these issues on appeal to the BIA. The BIA previously determined that
Petitioner waived his challenge to the withholding of removal and CAT protection
findings. Petitioner does not challenge that finding in this appeal. Thus, we dismiss
Petitioner’s withholding and CAT claims because Petitioner has not exhausted
administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004)
(holding that the court is barred, “for lack of subject-matter jurisdiction, from
reaching the merits of a legal claim not presented in administrative proceedings
below”). Our review is therefore limited to Petitioner’s asylum claim.
Our standard of review after the Real ID Act is set forth in Silva-Pereira v.
Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016).
“We review ‘denials of asylum, withholding of removal, and CAT
relief for substantial evidence and will uphold a denial supported by
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reasonable, substantial, and probative evidence on the record
considered as a whole.’” Huang v. Holder, 744 F.3d 1149, 1152 (9th
Cir. 2014). The agency’s “findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, in order to reverse the BIA,
“we must determine that the evidence not only supports a contrary
conclusion but compels it—and also compels the further conclusion
that the petitioner meets the requisite standard for obtaining relief.”
Huang, 744 F.3d at 1152 (alterations and internal quotation marks
omitted). “Where, as here, the BIA adopts the IJ’s decision while
adding its own reasons, this court reviews both decisions.” Vahora v.
Holder, 641 F.3d 1038, 1042 (9th Cir. 2011); see also Shrestha v.
Holder, 736 F.3d 871, 877 (9th Cir. 2013) (observing that “[w]hen the
BIA conducts its own review of the evidence and law rather than
adopting the IJ's decision,” we review only the BIA’s decision “except
to the extent that the IJ’s opinion is expressly adopted”).
Id. at 1184. Adverse credibility findings are reviewed under the substantial evidence
standard. See Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010).
Asylum is available to applicants who: (1) demonstrate their statutory
eligibility for asylum as a “refugee”; and (2) merit a favorable exercise of the
Attorney General’s discretion. 8 U.S.C. § 1158(b)(1)(A); see, e.g., Li v. Holder, 559
F.3d 1096, 1102 (9th Cir. 2009). A refugee is defined as a person who is unable or
unwilling to return to his or her country of origin “because of [past] persecution or a
well-founded fear of [future] persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A). An alien who establishes past persecution on account of a protected
ground is presumed to have a well-founded fear of future persecution. See 8 C.F.R.
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§ 1208.13(b)(1). The applicant bears the burden to prove his eligibility for asylum.
8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a).
Under the REAL ID Act, the IJ is permitted to base a credibility finding on:
the demeanor, candor, or responsiveness of the applicant or witness, . . .
the consistency between the applicant’s . . . written and oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which statements were made), the internal
consistency of each statement, [and] the consistency of such statements
with other evidence of record, . . . and any inaccuracies or falsehoods
in such statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim . . . .
8 U.S.C. § 1158(b)(1)(B)(iii). Under the REAL ID Act, credibility determinations
are made—and must be reviewed—“based on the ‘totality of the circumstances and
all relevant factors,’ not a single factor.” Alam v. Garland, 11 F.4th 1133, 1135 (9th
Cir. 2021) (en banc) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). “The REAL ID Act
implemented an important substantive change concerning the kinds of
inconsistencies that may give rise to an adverse credibility determination.
Inconsistencies no longer need to ‘go to the heart’ of the petitioner's claim to form
the basis of an adverse credibility determination.” Alam, 11 F.4th at 1136 (quoting
Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir. 2010) (quoting 8 U.S.C. §
1158(b)(1)(B)(iii))).
Substantial evidence supported the IJ’s adverse credibility finding. First, the
IJ found inconsistencies between Petitioner’s testimony at his credible fear interview
and during the hearing before the IJ that occurred under six months later. Because
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of the salience of Petitioner’s religious practice to his claims, the inconsistency in
his testimony about when he first attended church should be given great weight in
the credibility determination. See Shrestha, 590 F.3d at 1046–47 (“[W]hen an
inconsistency is at the heart of the claim it doubtless is of great weight.”).
Petitioner’s explanation for this inconsistency is that he “recognized Jesus in [his]
heart and decided to follow Jesus” in February 2016. The IJ found that he “was
asked about these [statements] different times, and he did not resolve the
inconsistency. He stuck to his inconsistent story and did not resolve the different
statements.” The IJ therefore considered and discredited this explanation with a
“specific and cogent reason for rejecting it.” Munyuh v. Garland, 11 F.4th 750, 758
(9th Cir. 2021) (quoting Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011)).
Second, the IJ found Petitioner’s stories about obtaining a replacement
passport and getting baptized in another town to be implausible. An IJ’s
“implausibility finding will ultimately hinge on the application of a reasonable
evaluation of the testimony and evidence based on common sense.” Lalayan v.
Garland, 4 F.4th 822, 836–37 (9th Cir. 2021). Here, the IJ applied her common
sense to Petitioner’s testimonial evidence. The IJ found the “context of the timeline”
that Petitioner presented made his story about why he obtained a replacement
passport “not particularly plausible.” The IJ noted the date he obtained the
replacement passport was “after his alleged arrest.” The IJ viewed Petitioner’s
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testimony that “he did not really care about the specifics of baptism” as evidence
that it was implausible that he went to be baptized in another town.
Finally, Petitioner submitted a false baptismal certificate to the court and false
information in his visa application. The IJ gave Petitioner a chance to explain the
alteration in his baptismal certificate, but he stated only that it might have been
“copied wrong.” As the BIA has explained, “[t]he presentation of fraudulent
documents is a critical factor in our analysis of the respondent’s claim. Such fraud
tarnishes the respondent’s veracity and diminishes the reliability of his other
evidence.” In re O-D-, 21 I. & N. Dec. 1079, 1083 (B.I.A. 1998). Petitioner argues
the false information in his visa application was made in the context of fleeing
persecution. But Petitioner also lied to the U.S. government about his identity,
testifying “that essentially all of the information on his visa application was false.”
“[L]ies and fraudulent documents when they are no longer necessary for the
immediate escape from persecution . . . support an adverse inference.” Singh v.
Holder, 638 F.3d 1264, 1272 (9th Cir. 2011). The false testimony on Petitioner’s
visa application was a “‘legitimate articulable basis to question the petitioner’s
credibility,’ and that together with past perjury and the absence of a reasonably
available corroboration amounts to a ‘cogent reason for [the IJ’s] stated disbelief.’”
Id. at 1273 (alteration in original) (quoting Martinez v. Holder, 557 F.3d 1059, 1060
(9th Cir. 2009)).
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For all these reasons, substantial evidence supports the agency’s adverse
credibility finding and its decision that Petitioner is ineligible for asylum. The
evidence does not “compel” a different finding.
THE PETITION IS DENIED IN PART AND DISMISSED IN PART.
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