Lanqing Zhang v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
MAR 10 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANQING ZHANG, No. 17-72595
Petitioner, Agency No. A206-349-056
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2022**
Portland, Oregon
Before: GRABER, BEA, and VANDYKE, Circuit Judges.
Petitioner Lanqing Zhang, a native and citizen of China, seeks review of the
Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s
(“IJ”) decision denying her application for asylum, withholding of removal, and
*
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).
protection under the Convention Against Torture (“CAT”). Reviewing for
substantial evidence, Li v. Garland, 13 F.4th 954, 956 (9th Cir. 2021), we deny the
petition.
1. Substantial evidence supports the BIA’s adverse credibility finding
because it is supported by the “totality of the circumstances.” Alam v. Garland, 11
F.4th 1133, 1137 (9th Cir. 2021) (en banc). Two illustrations will give a flavor of
the record.
First, Petitioner’s testimony was not consistent with the evidence in the
record. 8 U.S.C. § 1158(b)(1)(B)(iii). Petitioner testified that she had been fired
from her job on “January the 3rd, 2011,” but a dismissal notice stated that
Petitioner was fired on “01/03/2001.” Although Petitioner changed her testimony
to match the notice, the agency was not compelled to believe her, nor are we
compelled to disagree with the agency.
Second, the BIA identified three instances when, during the hearing before
the IJ, Petitioner refused to answer questions responsively. See Singh v. Ashcroft,
301 F.3d 1109, 1114 (9th Cir. 2002) (“To support an adverse credibility
determination based on unresponsiveness, the BIA [or IJ] must identify particular
instances in the record where the [applicant] refused to answer questions asked of
him.”). As a result, “[t]he BIA and IJ did not err in relying on [Petitioner’s]
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evasive and unresponsive demeanor while testifying after providing examples of
[her] evasiveness.” Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir.
2021) (per curiam).
Accordingly, considering “the totality of the circumstances,” 8 U.S.C.
§ 1158(b)(1)(B)(iii), the adverse credibility determination was supported by
substantial evidence.
2. Given the BIA’s adverse credibility determination, Petitioner’s asylum
and withholding of removal claims fail, as “the remaining evidence in the record is
insufficient to carry her burden of establishing eligibility for relief.” Wang v.
Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017). Petitioner’s CAT claim also fails
because it rests on the same testimony that the BIA found not credible. And
Petitioner does not point to any other evidence that compels the conclusion that it
is more likely than not that she would be tortured if returned to China. See
Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006) (holding that the
petitioner’s CAT claim failed because discredited testimony and the relevant
country report did not compel the conclusion that the petitioner would face a
particularized threat of torture).
PETITION DENIED.
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