Shenglan Sun v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHENGLAN SUN, No. 16-72330
Petitioner, Agency No. A201-041-112
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 17, 2022**
Pasadena, California
Before: OWENS and BRESS, Circuit Judges, and FITZWATER,*** District
Judge.
Shenglan Sun, a citizen of China, petitions for review of a Board of
Immigration Appeals (BIA) decision dismissing her appeal of an Immigration 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 Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
(IJ) order denying her applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).1 “We review the BIA’s
findings of fact, including credibility findings, for substantial evidence and must
uphold the BIA’s finding unless the evidence compels a contrary result.” Tekle v.
Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (citation omitted). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition.
Sun’s credibility is assessed “[c]onsidering the totality of the circumstances,
and all relevant factors,” including her demeanor, the “inherent plausibility” of her
story, and any inaccuracies or inconsistencies. 8 U.S.C. § 1158(b)(1)(B)(iii). In this
case, substantial evidence supports the IJ and BIA’s determination that Sun was not
credible, and therefore was not entitled to relief.
As an initial matter, the IJ made “specific, first-hand observations” about
noncredible aspects of Sun’s demeanor. Manes v. Sessions, 875 F.3d 1261, 1263
(9th Cir. 2017) (citation omitted). Among other things, the IJ found that Sun’s
testimony was scripted and that she hesitated when asked questions outside her
written story. We “give special deference to a credibility determination that is based
on demeanor” because “the IJ has an opportunity to make a first-person evaluation
of all of the subtly conveyed factors that, together, can be evidence of a petitioner’s
1
In her opening brief, Sun disclaimed any challenge to the denial of CAT relief, and
that issue is therefore waived.
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credibility.” Jibril v. Gonzales, 423 F.3d 1129, 1137 (9th Cir. 2005).
The BIA and IJ also identified numerous material inconsistencies in Sun’s
testimony. See, e.g., Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (“Major
inconsistencies on issues material to the alien’s claim of persecution constitute
substantial evidence supporting an adverse credibility determination.” (internal
quotation marks and citation omitted)), overruled in part on other grounds by Alam
v. Garland, 11 F.4th 1133, 1135–37 (9th Cir. 2021) (en banc); see also 8 U.S.C.
§ 1158(b)(1)(B)(iii). For example, the IJ observed that Sun’s testimony regarding
her church attendance was inconsistent with the letter Sun provided from her
church’s pastor. The IJ also found that the circumstances surrounding Sun’s
passport renewal were inconsistent with her testimony regarding her motivation for
fleeing China. Sun fails to challenge the BIA’s reliance on these findings, which
support the agency’s adverse credibility determination.
While Sun does challenge other inconsistencies on which the IJ and BIA
relied, those too are supported by substantial evidence. Specifically, the BIA could
rely on the fact that Sun gave inconsistent statements concerning whether she gave
information to the police while she was interrogated; whether anyone in her family
besides her aunt is Christian; and whether police looked for her at her parents’ home
in China. The BIA could regard these inconsistencies as material to Sun’s account
of persecution. And regardless, “even minor inconsistencies” may have a
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“legitimate impact . . . on credibility.” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th
Cir. 2010).
Sun fairly argues that substantial evidence may not support the BIA’s specific
finding regarding the circumstances surrounding her previous visa application. But
given the numerous aspects of the adverse credibility determination that are amply
supported, this does not provide a basis for relief. See Alam, 11 F.4th at 1137
(explaining that there “is no bright-line rule under which some number of
inconsistencies requires sustaining or rejecting an adverse credibility
determination”).
Accordingly, absent credible testimony, substantial evidence supports the
denial of asylum and withholding of removal.
PETITION DENIED.
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