Chen v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

QIAO CHEN, No. 23-505 Agency No. Petitioner, A208-466-258 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 14, 2024** Honolulu, Hawaii

Before: PAEZ, M. SMITH, and KOH, Circuit Judges.

Qiao Chen, a native and citizen of China, petitions for review of an order of

the Board of Immigration Appeals (“BIA”) affirming, without opinion, the denial

of Chen’s applications for asylum and withholding of removal by an Immigration

* 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). Judge (“IJ”).1 See 8 C.F.R. § 1003.1(e)(4). We have jurisdiction under 8 U.S.C.

§ 1252. Because the parties are familiar with the facts, we do not recount them

here, except as necessary to provide context to our ruling. We deny the petition for

review.

“Where, as here, the BIA summarily adopts the IJ’s decision without opinion

pursuant to 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as if it were the

BIA’s decision.” Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir. 2023) (internal

quotation marks omitted) (quoting Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir.

2011)). We review adverse credibility determinations for substantial evidence,

meaning we do not disturb such findings “unless any reasonable adjudicator would

be compelled to conclude to the contrary.” Lalayan v. Garland, 4 F.4th 822, 826

(9th Cir. 2021) (quoting Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014)). “In

assessing an adverse credibility finding . . . , we must look to the ‘totality of the

circumstances and all relevant factors.’” Alam v. Garland, 11 F.4th 1133, 1137

(9th Cir. 2021) (en banc) (cleaned up) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).

1. Fear of Past Persecution. The IJ found that Chen’s testimony about past

persecution was not credible. Considering the totality of the circumstances and the

1 Although Chen requests that “the Court reverse the IJ’s decision and grant him asylum, withholding of removal and/or relief under” the Convention Against Torture (“CAT”), Chen withdrew his request for CAT relief at a hearing before the IJ. Therefore, we do not address that claim.

2 record as a whole, substantial evidence supports this finding.

The IJ did not rely on impermissible factors in making the adverse

credibility determination. Where, as here, there is no evidence that lying was

necessary to immediately escape persecution, Chen’s submission of an admittedly

fraudulent tourist visa application may support an adverse credibility inference.

See Singh v. Holder, 638 F.3d 1264, 1271–72 (9th Cir. 2011). Similarly,

voluntarily returning to one’s home country absent adequate explanation—as Chen

did here by returning to China after traveling to Thailand, Malaysia, and

Singapore—may undermine a finding of past persecution. See Sharma v. Garland,

9 F.4th 1052, 1066 (9th Cir. 2021) (citing Loho v. Mukasey, 531 F.3d 1016, 1017–

18 (9th Cir. 2008)).

The IJ offered Chen a reasonable opportunity to explain the inconsistencies

she perceived in his testimony and the record, and she permissibly rejected his

explanations as implausible. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir.

2011), overruled in part on other grounds by Alam, 11 F.4th at 1135–37. Some of

these inconsistencies were minor, but “minor inconsistencies, when aggravated or

when viewed in light of the total circumstances, may undermine credibility.”

Shrestha v. Holder, 590 F.3d 1034, 1043 n.4 (9th Cir. 2010). And, although Chen

argues that some of the IJ’s reasoning was speculative, the IJ permissibly

considered the “inherent plausibility” of Chen’s testimony, 8 U.S.C.

3 § 1158(b)(1)(B)(iii), and relied on both evidence in the record and common sense,

Lalayan, 4 F.4th at 835–36, in finding him not credible.

The IJ also permissibly determined that the documentary evidence Chen

submitted was insufficient to rehabilitate his credibility or establish past

persecution. Although the IJ noted that the authenticity of several of the

documents was especially questionable in light of country conditions evidence, she

also independently determined that these documents were inconsistent with Chen’s

testimony and of limited probative value. Considering Chen’s testimony and the

record as a whole, a reasonable factfinder would not be compelled to find that the

documentary evidence was sufficient to establish past persecution or rehabilitate

his credibility.

2. Fear of Future Persecution. The IJ’s determination that Chen failed to

establish the well-founded fear of future persecution required by the asylum statute

is also supported by substantial evidence. Absent Chen’s discredited testimony of

past persecution, the record does not compel the conclusion that Chen has

demonstrated a well-founded fear of future persecution on the basis of his political

opinion if returned to China. The IJ therefore did not err in denying Chen’s

application for asylum.

Because Chen “has not met the lesser burden of establishing his eligibility

for asylum, he necessarily has failed to meet the more stringent ‘clear probability’

4 burden required for withholding” of removal. Sharma, 9 F.4th at 1066 (citing

Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001)).2

PETITION DENIED.

2 In light of our disposition of Chen’s asylum claim, we need not address the government’s argument that Chen waived any challenge to the agency’s finding that he had not shown he would merit a favorable exercise of discretion.