Lai v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAOCONG LAI, et al., No. 22-162
Agency Nos.
Petitioners, A208-829-481
A208-829-484
v.
A208-829-483
A208-829-482
MERRICK B. GARLAND, Attorney
General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2023**
Honolulu, Hawaii
Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.
Xiaocong Lai, a native and citizen of China, petitions for review of the
order of the Board of Immigration Appeals (BIA) dismissing her appeal from a
decision of the Immigration Judge (IJ) denying her application for asylum and
withholding of removal.1 We have jurisdiction under 8 U.S.C. § 1252. “We
*
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).
1
Lai’s husband and two minor children are derivative applicants.
review factual findings, including adverse credibility determinations, for
substantial evidence.” Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020).
Under this standard, “[t]he agency’s ‘findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.’” Silva-
Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016) (quoting 8 U.S.C.
§ 1252(b)(4)(B)). Because substantial evidence supports the agency’s adverse
credibility determination and its conclusion that Lai’s documentary evidence
did not rehabilitate her testimony or otherwise satisfy her burden of proof, we
deny the petition for review.
1. The BIA upheld the IJ’s adverse credibility determination, which
was based, in part, on the IJ’s observation that Lai “embellished” information
on her visa application and, when confronted about the inconsistencies,
provided “insufficient explanation[s]” for the false information. These findings
provide substantial evidence to support the adverse credibility determination.
See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021) (petitioner’s submission of
false information in visa application supported adverse credibility
determination, particularly when she “made no attempt during her hearing to
explain why she needed to provide the false information”).
The BIA also upheld the IJ’s finding that Lai provided “implausible
testimony” about several aspects of her application. As the agency noted, Lai’s
“timeline of claimed events was suspicious” and suggested that she “was
intending to immigrate to the United States independently of any alleged
2
persecution.” Lai testified that she came to the United States to improve her
mood after her forced abortion, and decided to apply for asylum when she
discovered she was pregnant while in the United States, but she and her family
had acquired passports and visas before the forced abortion. The BIA also
affirmed the IJ’s finding that it was implausible that Lai came to the attention of
family planning officials from her hometown because she confirmed her
pregnancy with an at-home test kit, while living with her mother-in-law in a
different village. These instances of implausible testimony provide substantial
evidence supporting the agency’s adverse credibility determination. See
Lalayan v. Garland, 4 F.4th 822, 836–37 (9th Cir. 2021) (stating that the
evidence cited by the agency to support a finding of implausibility “need not
conclusively establish that the witness’s testimony is false, and the [agency’s]
implausibility finding will ultimately hinge on the application of a reasonable
evaluation of the testimony and evidence based on common sense”).
2. The BIA concluded Lai’s documentary evidence did not
rehabilitate her testimony or otherwise satisfy her burden of proof. The agency
cited reliability issues with these documents, and the record does not compel a
contrary finding. See Manes v. Sessions, 875 F.3d 1261, 1264 (9th Cir. 2017)
(per curiam) (rejecting petitioner’s attempt to discredit doctor’s note that he
submitted in support of his claim, which was inconsistent with petitioner’s
testimony); see also id. at 1265 (noting that “even minor issues” with
petitioner’s documentary evidence were properly “given substantial weight” by
3
the BIA given that the documents spoke directly to the petitioner’s claimed
basis for persecution).
PETITION DENIED.
4