Chen v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUIHUA CHEN, No. 22-1285
Agency No.
Petitioner, A206-672-369
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 4, 2023**
Seattle, Washington
Before: N.R. SMITH, SANCHEZ, and MENDOZA, Circuit Judges.
Petitioner Guihua Chen, a native and citizen of China, seeks review of the
Board of Immigration Appeals’ (BIA) decision affirming an Immigration Judge’s
(IJ) adverse credibility determination that resulted in the denial of her application
*
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).
for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. Reviewing for
substantial evidence, Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th Cir. 2010),
we deny the petition.
The BIA repeatedly cited to the IJ’s decision and found no clear error in its
reasoning on the relevant issues, so we review both decisions. See Garcia-
Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). We uphold an adverse
credibility determination unless “any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Manes v. Sessions, 875
F.3d 1261, 1263 (9th Cir. 2017) (per curiam). Accordingly, “only the most
extraordinary circumstances will justify overturning an adverse credibility
determination.” Shrestha, 590 F.3d at 1041 (citation omitted).
1. Substantial evidence supports the agency’s conclusion that Chen
lacked credibility. Chen claimed that the Chinese government began persecuting
her after she accidently encountered a Fulan Gong parade while visiting Hong
Kong with a group of tourists in 2009. This encounter was by all accounts a
pivotal moment in her life, and the gravamen of her claim. Yet when asked to
provide details about that day, she could not recall (1) the airline she flew; (2)
whether she landed in Hong Kong or Kowloon; (3) the name of her hotel; (4)
where the hotel was located; (5) her tour group’s agenda; (6) when or where her
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tour group encountered the Falun Gong; (7) how the group of fifty tourists stayed
together during the parade; and (8) whether the Falun Gong distributed
paraphernalia to any other tour-member. The agency appropriately relied on the
lack of detail in Chen’s testimony to determine she lacked credibility. See
Shrestha, 590 F.3d at 1047–48 (upholding adverse credibility determination where
the IJ “relied on factors explicitly permitted by the REAL ID Act including
unresponsive and undetailed testimony”); Prasad v. INS, 47 F.3d 336, 338 (9th Cir.
1995) (“The objective inquiry requires ‘a showing by credible, direct, and specific
evidence of facts supporting a reasonable fear of persecution on the relevant
ground.’” (citation omitted)).
2. The agency then examined Chen’s documentary evidence and found it
unpersuasive and insufficient to carry her burden of proof. For one, Chen
proffered no documents corroborating her tour participation or presence in Hong
Kong. Her hospital record was found unreliable because Chen could not verify
who filled out the medical record, and it lacked identifying details and contact
information. The agency further noted that, even if the medical record was
properly authenticated, it only showed she was treated for “various injuries,” so it
did not corroborate her story. Lastly, the agency found that the affidavits
submitted by Chen’s family failed to provide any further details and information
regarding her trip to Hong Kong and her encounter with Falun Gong
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demonstrators.
3. “To qualify for asylum, a petitioner must establish that he or she . . .
‘is unable or unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, [his or her] country because of persecution or a well-
founded fear of persecution on account of’ a protected ground.” Cortez-Pineda v.
Holder, 610 F.3d 1118, 1124 (9th Cir. 2010) (citations omitted). In the absence of
Chen’s credible testimony, we conclude that the remaining evidence in the record,
including the medical report and declarations from her family, is insufficient for
her to meet her burden of establishing past persecution or a well-founded fear of
future persecution. See Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006).
Therefore, substantial evidence supports the agency’s decision to deny Chen’s
asylum claim. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
4. “To demonstrate eligibility for withholding of removal, the petitioner
must show a clear probability of the threat to life or freedom if deported to his or
her country of nationality.” Lianhua Jiang v. Holder, 754 F.3d 733, 740 (9th Cir.
2014) (citation and internal quotation marks omitted). “The clear probability
standard is more stringent than the well-founded fear standard for asylum.” Id.(citation omitted). Because Chen cannot meet her burden for asylum, she similarly
cannot meet her burden for withholding of removal. See id.
5. To be eligible for CAT protection, Chen must “establish that it is
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more likely than not that . . . she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2). “An adverse credibility
determination is not necessarily a death knell to CAT protection.” Shrestha, 590
F.3d at 1048. But when “the CAT [claim] is based on the same statements [the
petitioner] made regarding [her] claims for asylum and withholding of removal[,]
. . . it [is] proper for the IJ and the BIA to rely on the same adverse credibility
determination in denying all of [her] claims.” Singh v. Lynch, 802 F.3d 972, 977
(9th Cir. 2015). That is the case here.
PETITION DENIED.
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