Guotao Xin v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2021
• Docket: 20-71974
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUOTAO XIN, No. 20-71974

Petitioner, Agency No. A206-546-825

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

Respondent.

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

Submitted December 10, 2021** Pasadena, California

Before: M. SMITH, LEE, and FORREST, Circuit Judges.

Petitioner Guotao Xin, a native and citizen of China, seeks review of a

decision of the Board of Immigration Appeals (BIA) affirming the denial of his

requests for asylum, withholding of removal, and relief under the Convention

* 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). Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the

petition for review.

Xin says that he is likely to face religious persecution and torture if he is

removed to China, which he claims that he escaped while “under surveillance.” In

support of his requests for relief, Xin testified that he attended two Christian home-

church meetings in China, the second of which was broken up by police. Xin

testified he was detained for four days during which time he was interrogated three

times and beaten once. After Xin’s wife paid a fee to the police, Xin was released

from detention but was required to report to the police on a weekly basis. The IJ

found Xin not credible and denied all forms of relief. The BIA affirmed.

We review agency denials of asylum, withholding of removal, and relief under

CAT for substantial evidence. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir.

2017). We also review adverse credibility determinations for substantial evidence,

looking to 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)) (alteration in original).

1. Substantial evidence supports the IJ’s adverse credibility determination

under the totality of the circumstances. See id. Applying this standard, the IJ

concluded that Xin was not credible “in light of a significant discrepancy in his

accounts, unexplained by [Xin] after being afforded an opportunity to explain,

2 concerning the extent of his reporting requirement after his purported release from

detention.” During his testimony, Xin indicated no less than three times that he

reported to the police three to four times after he was released from detention. But

Xin also testified, consistent with his declaration, that he remained in China for

approximately twelve weeks after his release, and that once he was released, he was

required to report to the police on a weekly basis. Xin should thus have been

required to report to the police approximately twelve times.

The first time he was asked to explain this inconsistency, Xin simply did not

respond, prompting the IJ to state for the record, “[t]here has been a long pause, but

no answer.” After some back and forth, Xin next responded by stating he

“misunderstood” the question. Finally, Xin changed his response and stated he

reported “13 or 14 times.”

As the IJ noted, the difference between reporting 4 or 13 times over the course

of about 12 weeks is significant: a respondent “would be expected to be able to

consistently recount whether he reported to police in the aftermath of his release

from detention on as few as three or four weekly occasions or on as many as 13

weekly occasions.” Additionally, the fact that Xin was required to report to the

police is central to his claim of persecution. When looking at the totality of the

circumstances, this inconsistency is significant.

3 2. The IJ also concluded Xin’s demeanor was “reflective of an absence of

truthfulness.” The “need for deference” to an IJ’s adverse credibility determination

is “particularly strong in the context of demeanor assessments.” Huang v. Holder,

744 F.3d 1149, 1153 (9th Cir. 2014). As noted previously, Xin paused for a long

time and did not respond the first time he was asked to explain his inconsistent

testimony. In a further attempt to “evaluat[e] whether [Xin] misunderstood [the]

question,” the IJ asked Xin what he thought he was being asked when he repeatedly

answered that he reported four times. In response to this question, Xin “inhaled

deeply and then sighed deeply and still [did] not answer[].” The IJ’s demeanor

assessment also notes “a long pause,” “stal[ling],” and “looking at the clock.” These

firsthand demeanor observations provide substantial evidence for the IJ’s conclusion

that Xin was struggling to invent an explanation for his inconsistent testimony rather

than testifying truthfully. Cf. Huang, 744 F.3d at 1154-55 (holding record of

frequent pauses and hesitant testimony sufficiently supported demeanor-based

adverse credibility finding).

3. Because Xin’s appeal challenges only the agency’s adverse credibility

finding and we find substantial evidence supports that finding, we conclude the

agency did not err in denying asylum, withholding of removal, or relief under CAT.

See, e.g., Cortez-Pineda v. Holder, 610 F.3d 1118, 1125 (9th Cir. 2010) (upholding

4 denial of asylum, withholding of removal, and CAT claims because they were all

based on the same testimony that the IJ found to lack credibility).

PETITION FOR REVIEW DENIED.