Xiao Wu v. William P. Barr

FILED
NOT FOR PUBLICATION
FEB 15 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAO PING WU, No. 14-72217
Petitioner, Agency No. A200-159-530
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2019**
Honolulu, Hawaii
Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.
Xiao Ping Wu petitions for review of the denial of his application for asylum
and withholding of removal by the Board of Immigration Appeals (BIA). We deny
the petition for review.
*
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).
The BIA reviewed the immigration judge’s (IJ) adverse credibility finding
for clear error. It identified four specific reasons for affirming the IJ’s credibility
finding. We review only the reasons explicitly identified by the BIA, as well as the
reasoning articulated in the IJ’s decision in support of those stated reasons. Tekle
v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). Substantial evidence supports
two of the four reasons cited by the BIA.1
1. Wu provided inconsistent statements with regard to whether he returned to
his home after the incident with the deputy director. Wu was confronted with the
perceived inconsistency and failed to provide a reasoned explanation. Wu asserts
that a reasonable fact-finder could not conclude that his wife’s statement implied
that she never saw Wu again. We disagree. Although the record could have
supported a different conclusion than the one the BIA reached, applying the proper
“healthy measure of deference” to the BIA, a different conclusion is not compelled.
Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010).
2. In their written statements, Wu and his wife failed to mention that Wu would
be subject to sterilization if he returned to China. Generally, “omissions are less
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The BIA also identified other inconsistencies and omissions. Wu was not
confronted on these issues. Therefore, substantial evidence does not support these
findings. Zi Lin Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004). However,
the two remaining inconsistencies are sufficient to support the adverse credibility
finding. See Lianhua Jiang v. Holder, 754 F.3d 733, 738-39 (9th Cir. 2014).
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probative of credibility than inconsistencies created by direct contradictions in
evidence and testimony.” Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014).
However, omissions that tell a “much different—and more compelling—story of
persecution than [the] initial application” can support an adverse credibility
finding. Silva-Pereira v. Lynch, 827 F.3d 1176, 1185-86 (9th Cir. 2016) (alteration
in original) (citation omitted). Here, the threat of sterilization for revenge presents
a much more compelling fear of future persecution. Wu provided explanations for
the omissions; however, the BIA rejected them because they were not “reasonable
and plausible.” See Rizk v. Holder, 629 F.3d 1083, 1091 (9th Cir. 2011). Wu
argues that the BIA was required to explain why his explanation was not plausible.
Although an explanation may have been helpful, we have held in similar
circumstances that “[n]o express, point-by-point rejection of [the] explanations [is]
necessary.” Id. Therefore, we cannot say that the record compels the conclusion
that Wu was credible. Id. at 1087.
The BIA’s adverse credibility determination barring Wu’s asylum claim also
bars his withholding of removal claim. Yali Wang v. Sessions, 861 F.3d 1003,
1009 (9th Cir. 2017).
PETITION FOR REVIEW DENIED.
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