He v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XIN HE, No. 22-1470 Agency No. Petitioner, A213-136-956 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 6, 2023** Honolulu, Hawaii

Before: BERZON, MILLER, and VANDYKE, Circuit Judges.

Petitioner Xin He seeks review of a Board of Immigration Appeals (BIA)

decision dismissing his appeal of the denial by an Immigration Judge (IJ) of asylum

and withholding of removal on the basis that Petitioner was found not credible. We

have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. We assume

* 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). familiarity with the underlying facts and arguments in this proceeding.

“Where, as here, the BIA cites Burbano and also provides its own review of

the evidence and law, we review both the IJ’s and the BIA’s decisions.” Ali v.

Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). “We review factual findings, including

adverse credibility determinations, for substantial evidence.” Mukulumbutu v. Barr,

977 F.3d 924, 925 (9th Cir. 2020). Under this deferential 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). Thus, “only the most extraordinary

circumstances will justify overturning an adverse credibility determination.”

Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010) (citation and quotation

marks omitted). Nevertheless, “[t]here is no bright-line rule under which some

number of inconsistencies requires sustaining or rejecting an adverse credibility

determination—our review will always require assessing the totality of the

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

First, prior fraudulent visa applications submitted by Petitioner support the

agency’s adverse credibility determination. Petitioner knowingly submitted false

information and documents in two visa applications in 2016. Petitioner admitted

that he used an intermediary agency to prepare the applications, that he voluntarily

and knowingly made false statements in his applications and interviews, and that he

provided forged documents. The fraudulent applications were made at a time when

2 22-1470 he did not fear persecution or torture, and the falsehoods he submitted to immigration

officials were not motivated by any emergency or duress. Cf. Akinmade v. INS, 196

F.3d 951, 955 (9th Cir. 1999) (recognizing that a noncitizen’s misrepresentation in

a visa application made for the purpose of fleeing persecution may not support a

negative credibility determination). In the circumstances here, “[Petitioner’s]

submission of false information in h[is] … visa applications are inconsistencies

sufficient to support the adverse credibility determination.” Li v. Garland, 13 F.4th

954, 960 (9th Cir. 2021); see also Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir.

2011).

Second, substantial evidence supports the agency’s conclusion that

Petitioner’s testimony was inconsistent with medical records he submitted

concerning treatment he and his mother received. See Ren v. Holder, 648 F.3d 1079,

1089 (9th Cir. 2011). Despite Petitioner’s attempts to provide an innocent reading

of these inconsistencies, the totality of the circumstances does not compel one,

particularly given his admission that he knowingly submitted false visa applications

in 2016.

Accordingly, the record does not compel this court to conclude Petitioner was

credible under the totality of the circumstances, and substantial evidence supports

3 22-1470 the agency’s denial of all applications for relief for failure to meet the requisite

burden of proof.

PETITION DENIED.

4 22-1470