Helian Chen v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2021
• Docket: 20-72645
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HELIAN CHEN, No. 20-72645

Petitioner, Agency No. A208-733-488

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

Respondent.

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

Submitted October 13, 2021** Honolulu, Hawaii

Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.

Helian Chen, a native and citizen of China, petitions this court for review of

the Board of Immigration Appeals’ (“BIA’s”) denial of his claim for asylum. As

the facts are known to the parties, we repeat them only as necessary to explain our

decision.

* 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). I

Substantial evidence supports the BIA’s adverse credibility determination.

Cf., e.g., Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014).

The BIA identified and analyzed a long list of “specific, cogent reason[s]”

for such determination, Malhi v. INS, 336 F.3d 989, 992 (9th Cir. 2003) (citation

omitted), including “[t]he overall implausibility of [Chen’s] testimony, the

falsehoods in his visa application, the inconsistency [between] his testimony [and

his documentary evidence], and the lack of corroborating evidence,” which, taken

together, “undermine[d] the veracity of [Chen’s] claim of persecution.” All such

factors were permissible and relevant for the BIA to consider in making its

credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Jibril v.

Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005).

Such factors, viewed within the “totality of the circumstances,” Alam v.

Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc) (quoting 8 U.S.C. §

1158(b)(1)(B)(iii)), constitute substantial evidence for the BIA’s conclusion that

Chen lacked credibility. Chen fails to “show that the evidence compelled a

contrary conclusion.” Malhi, 336 F.3d at 993.

II

The BIA properly concluded that the incredibility of Chen’s testimony was

dispositive in preventing him from meeting his burden to show eligibility for

2 asylum. A “persecution claim which lacks veracity cannot satisfy the burdens of

proof and persuasion necessary to establish eligibility for asylum.” In re M-S-, 21

I. & N. Dec. 125, 129 (BIA 1995).

While an asylum applicant can establish eligibility based on documentary

evidence alone, notwithstanding his lack of credible testimony, Al-Harbi v. INS,

242 F.3d 882, 890–94 (9th Cir. 2001), the BIA properly concluded that Chen had

waived any such argument, see Matter of R-A-M-, 25 I. & N. Dec. 657, 658 n.2

(BIA 2012). Thus, to the extent that Chen’s Petition for Review might be read as

arguing that he “has established past persecution” or “an objectively reasonable

fear of persecution” based on his documentary evidence alone, such arguments

would fall outside the scope of this court’s review. See Santiago-Rodriguez v.

Holder, 657 F.3d 820, 829 (9th Cir. 2011); see also Lai v. Holder, 773 F.3d 966,

970 (9th Cir. 2014).

PETITION FOR REVIEW DENIED.