Guangwu Dong v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2022
• Docket: 16-71831
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUANGWU DONG, No. 16-71831

Petitioner, Agency No. A200-250-744

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

Respondent.

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

Submitted April 8, 2022** Pasadena, California

Before: MURGUIA, Chief Judge, and GRABER and BEA, Circuit Judges.

Petitioner Guangwu Dong petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). We deny the petition.

1. The BIA dismissed Dong’s appeal of the immigration judge’s (“IJ”) denial

* 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). of asylum and withholding on the ground that the IJ’s adverse credibility

determination was not clearly erroneous. We review adverse credibility

determinations for substantial evidence and “must uphold the agency determination

unless the evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918

F.3d 1025, 1028 (9th Cir. 2019).

Substantial evidence supports the agency’s adverse credibility determination.

The IJ properly relied on Dong’s shifting testimony regarding whether his son’s

illness improved with treatment rather than through prayer alone—particularly as

this event was central to Dong’s story of religious persecution. See Shrestha v.

Holder, 590 F.3d 1034, 1047 (9th Cir. 2010) (explaining that a petitioner’s “inability

to consistently describe the underlying events that gave rise to his fear [is] an

important factor that could be relied upon by the IJ in making

an adverse credibility determination”). Further, Dong’s unexplained inability to

recall the date of his marriage undermined his credibility. See id. at 1043 & n.4

(noting that “minor inconsistencies, when aggregated or when viewed in light of the

total circumstances, may undermine credibility”). Finally, the record supports the

IJ’s finding that Dong displayed a hesitant and nonresponsive demeanor when

questioned about the details of his detention and about the date of his marriage. See

Ling Huang v. Holder, 744 F.3d 1149, 1155 (9th Cir. 2014) (determining that the

IJ’s specific documentation of petitioner’s “non-responsive hesitations [was]

2 sufficient to support the IJ’s demeanor finding, . . . which in turn sustains the IJ’s

adverse credibility determination” (internal citation omitted)).

Even assuming that substantial evidence does not support two of the agency’s

reasons—concerning the length of a hospital stay and conditions to Dong’s release

from custody—substantial evidence nonetheless supports the adverse credibility

determination when we consider, as we must, the “totality of the circumstances and

all relevant factors.” Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc)

(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)) (brackets omitted). We therefore deny the

petition for review as to Dong’s asylum and withholding claims.

2. Where substantial evidence supports the IJ’s “determination that [the

petitioner] . . . [is] not credible” and the petitioner’s CAT claims were “based on the

same statements” with “no other evidence,” substantial evidence supports the BIA’s

denial of CAT relief. Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003). Here,

Dong did not submit any individualized evidence that he would be tortured aside

from his discredited testimony. See Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th

Cir. 2008) (per curiam) (determining that country conditions evidence was

insufficient to establish an individualized risk of torture). We therefore also deny

the petition as to Dong’s CAT claim.

PETITION DENIED.