Fang Dong v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 30, 2022
• Docket: 17-72585
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FANG DONG, No. 17-72585

Petitioner, Agency No. A209-390-911

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

Respondent.

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

Submitted June 8, 2022** Portland, Oregon

Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,*** District Judge.

Fang Dong petitions for review of the Board of Immigration Appeals’ (BIA)

order dismissing her appeal of the Immigration Judge’s (IJ) denial of her

* 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 John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. applications for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). Dong, a native and citizen of China,

challenges the adverse credibility determination made by the IJ and upheld by the

BIA. She filed her application after 2005, and therefore the REAL ID Act applies.

See REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (May 11, 2005).

Where the BIA “conduct[s] its own review of the evidence and law rather

than simply adopting the [IJ]’s decision, . . . our review ‘is limited to the BIA’s

decision, except to the extent the IJ’s opinion is expressly adopted.’” Hosseini v.

Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS, 204

F.3d 985, 990 (9th Cir. 2000)). We review “factual findings, including adverse

credibility determinations, for substantial evidence.” Mairena v. Barr, 917 F.3d

1119, 1123 (9th Cir. 2019). “Under the substantial evidence standard,

‘administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C.

§ 1252(b)(4)(B)).

1. In finding no clear error in the IJ’s adverse credibility determination, the

BIA cited with approval several inconsistencies noted by the IJ: discrepancies

between what Dong told the asylum officer and what she testified before the IJ

regarding the manner in which Chinese authorities notified her that she was

required to pay a fine; Dong’s changed explanation regarding to whom her

2 husband spoke in order to get her released from police custody; and Dong’s

contradictory hearing testimony about whether Chinese authorities are aware that

she left China and is now in the United States. The record does not “compel” a

contrary credibility determination, see 8 U.S.C. § 1252(b)(4)(B), and therefore

substantial evidence supports the agency’s adverse credibility determination. We

accordingly deny the petition for review on Dong’s claims for asylum and

withholding of removal.1

2. “An adverse credibility determination does not, by itself, necessarily

defeat a CAT claim . . . .” Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014).

Here, however, Dong waived review of her CAT claim in this Court by not

presenting any argument in her brief regarding that claim. See, e.g., Cui v. Holder,

712 F.3d 1332, 1338 n.3 (9th Cir. 2013) (“Because Cui does not address

withholding or CAT relief in his brief, he waived any objections to the denial of

these requests.”); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)

(“[A]n issue referred to in the appellant’s statement of the case but not discussed in

the body of the opening brief is deemed waived.”). And even if Dong had not

1 The record includes documentary evidence related to Dong’s claims, but Dong does not argue either that the agency erred by not considering it, see Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010), or that it establishes eligibility for asylum despite the adverse credibility determination, see Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir. 2000). Consequently, Dong has waived those arguments.

3 waived the CAT claim, the record evidence does not “compel[] the conclusion”

that Dong would more likely than not be tortured if she returned to China.

Shrestha v. Holder, 590 F.3d 1034, 1048–49 (9th Cir. 2010).

PETITION DENIED.