Yan Luo v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAN LUO; et al., No. 18-71138
Petitioners, Agency Nos. A208-729-688
A208-729-689
v. A208-729-690
WILLIAM P. BARR, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2020**
Honolulu, Hawaii
Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.
Petitioner Yan Luo petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) affirming a denial by an Immigration Judge (“IJ”) of
*
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).
her claim for asylum1 on behalf of herself and her two minor children arising out of
Luo’s contention that she was forcibly sterilized by Chinese authorities. Luo and
her children are Chinese nationals and citizens. Zhiping Li, Luo’s boyfriend and
the children’s father, testified in support of Luo’s application at the hearing before
the IJ. We deny the petition for review.
Substantial evidence supports the agency’s2 adverse credibility
determination. Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir. 2010) (explaining
that, in applying the substantial evidence standard, “[w]e reverse the BIA’s
decision only if the petitioner’s evidence was ‘so compelling that no reasonable
factfinder could find that he was not credible’” (quoting Farah v. Ashcroft, 348
F.3d 1153, 1156 (9th Cir. 2003))). The record supports the IJ’s finding that Luo
and Li gave inconsistent testimony as to how Li learned of the birth of their son
while Luo was staying with her parents. The record also supports the IJ’s finding
that Luo gave inconsistent or evasive testimony in answering the IJ’s questions
about why she had an original copy of another family’s household register that
1
Luo also sought withholding of removal and protection under the
Convention Against Torture, but her petition for review does not raise those
claims.
2
“Where, as here, the [BIA] incorporates the IJ’s decision into its own
without citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), this court will
review the IJ’s decision to the extent incorporated.” Medina-Lara v. Holder, 771
F.3d 1106, 1111 (9th Cir. 2014). We refer to the BIA and the IJ collectively as
“the agency.”
2
named her daughter. The IJ gave Luo an opportunity to explain both apparent
discrepancies, but her explanation failed to reconcile the accounts or otherwise
give a “reasonable and plausible explanation” for their divergences. Rizk v.
Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (quoting Soto-Olarte v. Holder, 555
F.3d 1089, 1091 (9th Cir. 2009)).
These inconsistencies were material and non-trivial, see id., and the record
supports the IJ’s conclusion that Luo was evasive in response to the questioning
about the household register, see Jin v. Holder, 748 F.3d 959, 965 (9th Cir. 2014).
Under the totality of the circumstances, there was a sufficient basis for the IJ’s
adverse credibility finding. Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011).
The remaining evidence in the record does not compel a contrary conclusion. Rizk,
629 F.3d at 1087. In the absence of her discredited testimony, Luo cannot meet
her burden of establishing past persecution or a well-founded fear of future
persecution on a protected ground for purposes of asylum. See 8 C.F.R.
§ 1208.13(b). We therefore uphold the agency’s determination that Luo is not
eligible for asylum.
PETITION DENIED.
3