He Chen Guo v. Robert Wilkinson ( 2021 )

FILED
NOT FOR PUBLICATION
FEB 24 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUOHE CHEN, AKA He Chen Guo No. 16-71484
Petitioner, Agency No. A206-463-577
v.
MEMORANDUM*
ROBERT M. WILKINSON,
Acting Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 4, 2021**
Honolulu, Hawaii
Before: CLIFTON, R. NELSON, and COLLINS, Circuit Judges.
Guohe Chen, AKA He Chen Guo, petitions the court for review of the Board
of Immigration Appeals’ decision dismissing his appeal and affirming the
Immigration Judge’s denial of his application for asylum and withholding of
*
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).
removal pursuant to 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A). An adverse
credibility finding is reviewed for substantial evidence. Yali Wang v. Sessions, 861
F.3d 1003, 1007 (9th Cir. 2017). Adverse credibility determinations “are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
The agency’s credibility determination was supported by the record. There
were multiple instances of inconsistencies for which the petitioner’s explanations
were not credible. Further, there were aspects of the timeline that the agency
reasonably determined were implausible. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Contrary to petitioner’s argument, the inconsistencies relied on by the agency bore
a legitimate nexus to the adverse credibility finding. For example, Chen stated his
wife went into hiding when she was pregnant with their second child, yet he stated
it was “unexpected” when the family planning officers informed him that the
second child violated the family planning laws. This inconsistency went to the
heart of his claim that he intentionally resisted the family planning regime, and the
statute permits reliance on an inconsistency that did not, in any event. See 8 U.S.C.
§ 1158(b)(1)(B)(iii).
The agency met its burden of articulating a legitimate basis for questioning
the applicant’s credibility. See Lianhua Jiang v. Holder, 754 F.3d 733, 738 (9th
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Cir. 2014). A reasonable adjudicator would not be “compelled to conclude to the
contrary” regarding Chen’s credibility. Yali Wang, 861 F.3d at 1007 (quoting 8
U.S.C. § 1252(b)(4)(B)).
Substantial evidence also supports the agency’s determination that Chen’s
documentary evidence was insufficient to independently establish past persecution.
See Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014) (petitioner’s documentary
evidence was insufficient to rehabilitate credibility or independently support
claim). The agency therefore properly concluded that Chen failed to carry his
burden with respect to either asylum or withholding of removal. As “persecution
or a well-founded fear of persecution” based on an enumerated ground is necessary
for an asylum claim, Chen’s asylum claim fails. See Rusak v. Holder, 734 F.3d
894, 896 (9th Cir. 2013) (quoting 8 U.S.C. § 1101(a)(42)(A)). Further, as Chen’s
asylum claim failed because he could not establish a “well-founded fear of
persecution,” his withholding of removal claim necessarily fails to establish that it
is “more likely than not” that he would face persecution, because the latter standard
is “more stringent.” See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006)
(quoting Al-Harbi v. INS, 242 F.3d 882, 888–89 (9th Cir. 2001)).
PETITION FOR REVIEW DENIED.
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