Wei Zheng v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WEI ZHENG; XIAOWEI ZHENG, AKA No. 17-71512
Xiao Wei Zheng,
Agency Nos. A087-881-726
Petitioners, A205-313-602
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2022**
Pasadena, California
Before: CALLAHAN and VANDYKE, Circuit Judges, and ARTERTON,***
District Judge.
Petitioners Wei Zheng (Mrs. Zheng) and Xiaowei Zheng (Mr. Zheng),
married citizens of China, seek review of the Board of Immigration Appeals’ (BIA)
*
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 Honorable Janet Bond Arterton, United States District Judge for the District
of Connecticut, sitting by designation.
decision affirming an Immigration Judge’s (IJ) adverse credibility determination
against them that resulted in the denial of their application for asylum and
withholding of removal.1 We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and
we deny the petition.2
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) (“Where, as here, the BIA agrees
with the IJ’s reasoning, we review both decisions.”) (citation omitted); see also
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006); Medina-Lara v.
Holder, 771 F.3d 1106, 1111 (9th Cir. 2014) (“Thus, we refer to the Board and IJ
collectively as ‘the agency.’”).
We review the agency’s “factual findings, including adverse credibility
determinations, for substantial evidence.” Mukulumbutu v. Barr, 977 F.3d 924, 925
(9th Cir. 2020) (citing Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013)). 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
1
Mr. Zheng proceeded as a derivative of Mrs. Zheng’s application and chose not to
file his own.
2
Because Petitioners did not raise any argument before the BIA or this court with
respect to the denial of their claim for relief under the Convention Against Torture,
it is waived. Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
2
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 v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010) (quoting
Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005)).
Here, the agency’s adverse credibility determinations with respect to both
Petitioners are supported by substantial evidence. The agency did not err in relying
on Petitioners’ untruthful testimony before U.S. immigration officers and the
immigration court as reflecting negatively on their credibility. Moreover,
Petitioners’ claim of past harm centered around China’s family planning policies and
their alleged violation of them. But their testimony as to the past harm they allegedly
experienced (for Mrs. Zheng, the forced insertion of an intrauterine device (IUD)
and forced abortion; for Mr. Zheng, multiple police detentions for protesting the
family planning policies), was vague and inconsistent with the documentary
evidence.
As to Mrs. Zheng, she gave false testimony before the IJ regarding whether
she was truthful in her visa application and visa interview (and, despite her claim
that she misunderstood the line of questioning, failed to plausibly explain her false
testimony before the IJ). See Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th
Cir. 2010) (explaining “[t]he IJ did not have to accept [petitioner]’s unpersuasive
explanations for the[] inconsistencies”); see also Zamanov v. Holder, 649 F.3d 969,
3
974 (9th Cir. 2011) (explaining that the agency is not compelled to accept
petitioner’s explanations for testimonial discrepancies). Mrs. Zheng also gave vague
testimony that lacked sufficient details as to events that directly related to her alleged
past harm, including details regarding when she was subjected to the forced insertion
of the IUD, what medication she was prescribed for IUD-related pain, and what the
name of the private company was where she allegedly worked for several years that
reported her pregnancy to family planning officials. 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, and inconsistent testimony for which there was no explanation or
corroboration”).
As to Mr. Zheng, his testimony regarding when he was released from police
detention conflicted with the fine receipt submitted into evidence that reflected his
release on a different day, and he was unable to explain this discrepancy. See Goel
v. Gonzales, 490 F.3d 735, 739 (9th Cir. 2007) (per curiam) (inconsistencies between
testimonial and documentary evidence will support an adverse credibility
determination). Before this court, Mr. Zheng now argues the discrepancy “may
have” resulted from a scrivener’s error by the police officer who issued the fine
receipt. But no such explanation was given to the agency, so we lack jurisdiction to
consider the unexhausted argument. See Samayoa-Martinez v. Holder, 558 F.3d
4
897, 902 n.7 (9th Cir. 2009) (“Because [Petitioner] failed to exhaust these issues
before the BIA, we lack jurisdiction to consider them.”) (internal citations omitted).
Further, Mr. Zheng also made false statements to U.S. immigration officials,
including during his consular interview and at the airport upon his arrival to the
United States.
The agency’s adverse credibility determinations are supported by substantial
evidence.
PETITION DENIED.
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