Hong Yang v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HONG YANG, No. 21-71010
Petitioner, Agency No. A201-602-479
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and submitted June 9, 2022
Anchorage, Alaska
Before: HURWITZ, BRESS, and H. THOMAS, Circuit Judges.
Hong Yang, a citizen of China, seeks review of a Board of Immigration
Appeals (BIA) decision dismissing his appeal of an Immigration Judge (IJ) order
denying his applications for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). We review for substantial evidence and
may grant relief only if the record compels a contrary conclusion. Yali Wang v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We have jurisdiction under 8 U.S.C.
§ 1252 and deny the petition.1
1. Substantial evidence supports the denial of asylum. “To be eligible for
asylum, a petitioner has the burden to demonstrate a likelihood of ‘persecution or a
well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.’” Sharma v. Garland,
9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). Where, as
here, “the trier of fact determines that the applicant should provide evidence that
corroborates otherwise credible testimony, such evidence must be provided unless
the applicant does not have the evidence and cannot reasonably obtain the evidence.”
8 U.S.C. § 1158(b)(1)(B)(ii); see Ren v. Holder, 648 F.3d 1079, 1090–91 (9th Cir.
2011).
Yang has not demonstrated error in the IJ’s determination that Yang was
required to provide corroborating evidence supporting his claim. Yang agreed
before the BIA that the IJ correctly characterized his case as presenting “two
potential realities”—that Yang was either the victim of government persecution, or,
alternatively, the aggressor who engaged in corporate sabotage of a pipeline. Thus,
1
Yang has not challenged the denial of withholding of removal and CAT protection,
and those claims are therefore forfeited. See Martinez-Serrano v. INS, 94 F.3d 1256,
1260 (9th Cir. 1996); see also Honcharov v. Barr, 924 F.3d 1293, 1295–96 & n.1
(9th Cir. 2019).
2
the IJ could reasonably require Yang to produce additional corroborating evidence.
See Ren, 648 F.3d at 1093.
Nor did the BIA err in concluding that Yang failed to offer reasonably
available corroborating evidence or sufficiently explain why he could not obtain the
requested evidence. The BIA noted that “[t]he Immigration Judge found that [Yang]
did not establish that he took reasonable steps to contact his prior attorney to obtain
the evidence requested by the Immigration Judge[,] and [Yang] has not challenged
that finding on appeal.” The BIA further noted that Yang “has not presented any
other arguments on appeal challenging the Immigration Judge’s conclusion that
[Yang] did not meet his burden of proof to establish that the evidence she requested
. . . was not reasonably available.” Yang has not demonstrated error in these
determinations, or that he sufficiently complied with the IJ’s request for
corroborating evidence.
The BIA did not err in declining to remand despite the IJ’s possible
misstatement regarding one aspect of Yang’s testimony. For purposes of the BIA’s
review, “‘facts determined by the immigration judge . . . shall be reviewed only to
determine whether the findings of the immigration judge are clearly erroneous.’”
Ridore v. Holder, 696 F.3d 907, 911 (9th Cir. 2012) (quoting 8 C.F.R.
§ 1003.1(d)(3)(i)). “Where there are two permissible views of the evidence, the
[IJ]’s choice between them cannot be clearly erroneous.” Guerra v. Barr, 974 F.3d
3909, 913 (9th Cir. 2020) (alteration in original; citation omitted). Considering the
entire record, the BIA could reasonably determine that the IJ properly found that
Yang had not corroborated his version of events. There is no indication that the IJ
placed dispositive reliance on Yang’s alleged admission to sending his employees
to sabotage the pipeline.
2. Although it is not before us, we note that Yang, now represented by
new counsel, has moved to reopen his immigration proceedings. The record raises
substantial questions about whether Yang’s prior counsel performed deficiently in
the development of corroborating evidence and in the overall presentation of his
case. We expect these matters will receive due consideration in any further agency
proceedings.
PETITION DENIED.2
2
We deny Yang’s motion to stay removal, Dkt. 9, as moot.
4