Hongbin Sun v. William Barr ( 2020 )

NOT FOR PUBLICATION
FILED
FEB 19 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HONGBIN SUN, No. 17-73253
Petitioner, Agency No. A201-050-938
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.
HongBin Sun, a 43-year-old male and native and citizen of China, arrived in
Los Angeles, CA on October 18, 2010 on a B-2 visa and remains in Hawai’i today.
He applied for asylum, withholding of removal, and CAT protection in early 2011.
An asylum officer interviewed Sun and then referred the matter to an Immigration
*
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).
Judge, who denied Sun’s application on adverse credibility grounds. Sun appealed
the IJ’s asylum finding to the Board of Immigration Appeals, which upheld the IJ’s
determination. We review the agency’s credibility determination for substantial
evidence, Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir. 2007), and we deny
Sun’s petition for review.
Sun must establish his own credibility to support his petition, either
independently or with the help of corroborating evidence. See 8 U.S.C.
§ 1158(b)(1)(B)(ii). We must deny his petition unless his presentation was “‘so
compelling that no reasonable factfinder could find’ that he was not credible.”
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (quoting Garrovillas v.
INS, 156 F.3d 1010, 1015–16 (9th Cir. 1998)). We “must uphold the IJ’s adverse
credibility determination so long as even one basis is supported by substantial
evidence.” Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). The court’s review
of an IJ’s credibility finding is “significantly restricted,” and “only the most
extraordinary circumstances will justify overturning” it. Shrestha v. Holder, 590
F.3d 1034, 1041 (9th Cir. 2010) (citations omitted).
In assessing credibility in this case, the IJ may consider the applicant’s
candor, responsiveness, plausibility, consistency, and any inaccuracies or
falsehoods, “without regard to whether an inconsistency, inaccuracy, or falsehood
2
goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Even a
single “[m]ajor” and “material” inconsistency may be enough. Rizk, 629 F.3d at
1088; see also Jiang v. Holder, 754 F.3d 733, 738–40 (9th Cir. 2014); Tamang v.
Holder, 598 F.3d 1083, 1093–94 (9th Cir. 2010). But “an utterly trivial
inconsistency” that “under the total circumstances [has] no bearing on the
applicant’s veracity,” such as a typographical error, cannot by itself form a
sufficient basis for an adverse credibility determination. Shrestha, 590 F.3d at
1043–44. “[I]f the trier of fact either does not believe the applicant or does not
know what to believe, the applicant’s failure to corroborate his testimony can be
fatal to his asylum application.” Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir. 2000).
Here, the BIA affirmed the IJ’s credibility determination on four
inconsistencies between Sun’s statements to the asylum officer and the IJ. First, the
notes from Sun’s asylum interview were admissible. Under Singh v. Gonzales, 403
F.3d 1081, 1089–90 (9th Cir. 2005), the notes had sufficient indicia of reliability to
be considered by the IJ.1
Second, at least two out of the four inconsistencies are supported by
substantial evidence. Without ruling on the inconsistencies between Sun’s hearing
1
Sun waived his argument that he saw these notes for the first time mid-
hearing and thus had no time to review them by failing to make that argument on
appeal to the BIA. Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004).
3
testimony and the asylum interview notes regarding Sun’s work history in China
and who the police questioned and how, we hold that the inconsistencies regarding
the time and details of Sun’s arrest and the name of the police station involved
were substantial and properly considered in the IJ’s credibility analysis. None of
Sun’s documentary evidence corroborates either of those two points, and the IJ was
not required to believe his explanations. See Jibril v. Gonzales, 423 F.3d 1129,
1135 (9th Cir. 2005) (“[A]n IJ must be allowed to exercise common sense in
rejecting a petitioner’s testimony.”). As a result, the evidence does not compel a
different finding as to Sun’s credibility.
Because substantial evidence supports the agency’s denial on adverse
credibility grounds, we need not reach whether substantial evidence supports its
determination regarding past or future persecution.
PETITION DENIED.
4