Ying Li v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YING LI, No. 18-71322
Petitioner, Agency No. A205-742-097
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 5, 2020**
Honolulu, Hawaii
Before: FARRIS, McKEOWN, and BADE, Circuit Judges.
Ying Li (“Li”), a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing her appeal of an
immigration judge’s (“IJ”) denial of asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). Li argues that the IJ’s
*
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).
adverse credibility determination, as affirmed by the BIA, is not supported by
substantial evidence. “We review ‘denials of asylum, withholding of removal, and
CAT relief for substantial evidence and will uphold a denial supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.’” Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting Garcia-
Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014)). We review adverse
credibility determinations for substantial evidence. Garcia v. Holder, 749 F.3d
785, 789 (9th Cir. 2014). We have jurisdiction under 8 U.S.C. § 1252, see Huang,
744 F.3d at 1152, and we deny the petition.
I.
Substantial evidence supports the agency’s adverse credibility
determination. “Under the REAL ID Act, which applies here, there is no
presumption that an applicant for relief is credible, and the IJ is authorized to base
an adverse credibility determination on the totality of the circumstances and all
relevant factors.” Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir. 2017)
(citations and internal quotation marks omitted). Although adverse credibility
determinations need not be based on inconsistencies that “go ‘to the heart of
[petitioner’s] claim,’” Shrestha v. Holder, 590 F.3d 1034, 1046 (9th Cir. 2010)
(quoting Malkandi v. Holder, 576 F.3d 906, 918 (9th Cir. 2009)), an inconsistency
supporting an adverse credibility determination “should not be a mere trivial error
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such as a misspelling.” Id. at 1044 (citing Hassan v. Holder, 571 F.3d 631, 637
(7th Cir. 2009)).
Li argues that the IJ’s adverse credibility determination erroneously relied
on inconsistencies between her testimony and a hospital discharge summary
regarding the number of her pregnancies and her abortion history. Li testified she
had been pregnant twice. The first pregnancy resulted in a forced abortion in
China, and the other resulted in the premature birth of her daughter in the United
States. In contrast, the hospital discharge summary reported that Li had been
pregnant four times, which resulted in one preterm birth and three elective
abortions. Li claimed that she was eligible for asylum, withholding of removal,
and CAT relief because she was forced to have an abortion under China’s one-
child policy. Therefore, these inconsistencies between her testimony and the
hospital discharge summary were not trivial.
Furthermore, the BIA properly determined that the government’s inability to
explain how it obtained the discharge summary did not undermine its probative
value. Even though a document “lacks certain indicia of reliability,” an IJ’s use of
it to support an adverse credibility determination is not necessarily reversible error
“under [the court’s] ‘extremely deferential’ review.” Angov v. Lynch, 788 F.3d
893, 902 (9th Cir. 2015) (quoting Wang v. INS, 352 F.3d 1250, 1257 (9th Cir.
2003)). Li acknowledged that she was interviewed by hospital staff when her
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daughter received medical care and that other information in the discharge
summary is correct. Thus, the discharge summary’s unknown provenance does not
undermine its probative value because it has other indicia of reliability. See Angov,
788 F.3d at 909. The IJ did not err by relying on the hospital discharge summary
to find that Li was not credible.
Li also argues that the IJ erred by relying on inconsistencies between her
testimony and information in her Chinese household register and by failing to give
her an opportunity to explain a discrepancy pertaining to whether the household
register was sent to Li or her attorney. Li is correct that any purported discrepancy
was too trivial to support an adverse credibility determination, see Shrestha, 590
F.3d at 1043–44, and that the agency failed to provide Li with a “reasonable
opportunity” to explain the perceived inconsistency regarding the provenance of
the household register, see Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.
1999). Nevertheless, the major inconsistency between Li’s testimony and the
information reported in the discharge summary constitutes substantial evidence in
support of the agency’s adverse credibility determination. Such an inconsistency
goes to the “heart of [Li’s] claim” for asylum and is consequently “of great
weight.” Shrestha, 590 F.3d at 1046–47. We affirm the agency’s adverse
credibility determination.
II.
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Absent credible testimony, Li failed to establish eligibility for asylum or
withholding of removal. The IJ and BIA found that Li’s evidence was
insufficiently probative to support her claims. These findings are supported by
substantial evidence. See Garcia-Milian, 755 F.3d at 1031 (“The agency’s
‘findings of fact are conclusive’ unless ‘any reasonable adjudicator’ would be
compelled to conclude to the contrary.’”) (quoting Kamalyan v. Holder, 620 F.3d
1054, 1057 (9th Cir. 2010); 8 U.S.C. § 1252(b)(4)(B)). Therefore, the agency
properly denied Li’s petition for relief under asylum and withholding of removal.
III.
Li’s argument that she is entitled to relief under CAT is based solely on her
assertion that she “was forced to undergo an abortion, harm that [she] contends is
tantamount to torture.” Li’s claim to CAT relief relies on testimony that the
agency determined was not credible. See Jiang v. Holder, 754 F.3d 733, 740 (9th
Cir. 2014) (“Although an adverse credibility finding does not necessarily preclude
[CAT] relief, a claim for relief under CAT may still be rejected when the petitioner
fails to provide evidence beyond those statements that the IJ determined were not
credible.”). The remaining documentary evidence in the record is insufficient to
compel the conclusion that Li herself would likely be tortured if returned. See id.(citing Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006)). Therefore,
Li’s claim to CAT protection was properly denied.
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PETITION FOR REVIEW DENIED.
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