Chaomin Li v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2022
• Docket: 20-72691
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHAOMIN LI, No. 20-72691

Petitioner, Agency No. A209-417-051

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 18, 2022** Honolulu, Hawaii

Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.

Petitioner Chaomin Li, a citizen of China, petitions for review of a Board of

Immigration Appeals (BIA) order upholding the denial of his claims for asylum

based on an adverse credibility determination. We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petition.

* 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). We review adverse credibility determinations and the attendant factual

findings under the “substantial evidence” standard. Iman v. Barr, 972 F.3d 1058,

1064 (9th Cir. 2020). Under this standard, factual findings are “conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B). An immigration judge (IJ) may consider “any relevant

factor that, considered in light of the totality of the circumstances, can reasonably be

said to have a bearing on a petitioner’s veracity.” Huang v. Holder, 744 F.3d 1149,

1153 (9th Cir. 2014) (quoting Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011));

see also Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021). And as the BIA only

partially relied on the reasoning set forth by the IJ in finding Petitioner not credible,

we review only “the grounds relied upon by” the BIA. Santiago-Rodriguez v.

Holder, 657 F.3d 820, 829 (9th Cir. 2011) (citation omitted).

1. Border interview. Petitioner argues that the BIA erred in relying on the

Petitioner’s border interview as it was inherently unreliable. A border interview

without “sufficient indicia of reliability” may be “a potentially unreliable point of

comparison to a petitioner’s testimony for purposes of a credibility determination.”

Singh v. Gonzales, 403 F.3d 1081, 1087–89 (9th Cir. 2005). But an indica of

reliability exists when an interview is “conducted under oath, with contemporaneous

notes containing the questions asked, and transcribed either by a [native language]-

speaking officer or with the aid of an interpreter.” Mukulumbutu v. Barr, 977 F.3d

2 924, 926 (9th Cir. 2020).

Here, the record includes a written transcript of Petitioner’s interview. While

the transcript makes a single reference to the Spanish language, it later specifies the

interview occurred in Mandarin; Petitioner also admitted at his removal hearing that

the interview occurred in Mandarin and that he understood all the questions the agent

asked. Furthermore, Petitioner swore to tell the truth and was asked at the end of the

interview if there was anything he would like to add to his statements. In considering

the totality of these circumstances, we conclude the border interview was sufficiently

reliable for the agency to consider it in assessing Petitioner’s credibility. See Matter

of J-C-H-F-, 27 I. & N. Dec. 211, 215–16 (BIA 2018).

2. Testimony regarding relatives. Petitioner argues that the agency

inconsistently interpreted and mischaracterized his testimony, particularly about his

plan to live with relatives in Texas. Petitioner stated at the border that he was unsure

whether he had relatives in the United States, but later at his hearing stated that he

did have relatives in the United States and had planned to live with relatives in Texas.

When asked about the discrepancy, Petitioner disclaimed making the statement

recorded from his border interview. Furthermore, Petitioner failed to live with his

Texas relatives after his uncle submitted an affidavit to the immigration court that

Petitioner would be living with him pending Petitioner’s proceedings. When asked

why Petitioner never lived with uncle as represented in the affidavit, Petitioner stated

3 that his uncle had submitted the affidavit as part of Petitioner’s request for bond to

“guarantee that [he would] attend all the hearings.”

Petitioner did not provide any compelling explanation or justification that

would resolve the discrepancies in his statements in any meaningful way, despite

receiving several opportunities to do so. See Shrestha v. Holder, 590 F.3d 1034,

1046–47 (9th Cir. 2010). Consequently, we conclude that the BIA’s adverse

credibility determination was supported by substantial evidence.

PETITION FOR REVIEW DENIED.