Jia-Shen He v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2022
• Docket: 20-70450
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JIA-SHEN HE, AKA Jiasheng He, No. 20-70450

Petitioner, Agency No. A209-393-307

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

Respondent.

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

Submitted July 8, 2022** Honolulu, Hawaii

Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.

Jia-Shen He, a native and citizen of China, petitions for review of a Board of

Immigration Appeals (BIA) decision affirming the Immigration Judge’s (IJ) denial

of his application for asylum and withholding of removal. We have jurisdiction

under 8 U.S.C. § 1252. We deny the petition.

* 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). 1. He did not waive his challenge to the BIA’s decision by focusing the

arguments in his opening brief on the IJ’s decision. If “the BIA has reviewed the

IJ’s decision and incorporated portions of it as its own, we treat the incorporated

parts of the IJ’s decision as the BIA’s.” Molina-Estrada v. INS, 293 F.3d 1089,

1093 (9th Cir. 2002) (citations omitted). Because He’s brief focused primarily on

the IJ’s reasoning behind issues referenced by the BIA, He did not waive review of

the BIA’s decision.

2. Substantial evidence supports the agency’s adverse credibility finding.

The agency provided specific and cogent reasons for its adverse credibility

determination. Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016); see

also 8 U.S.C. § 1158(b)(1)(B)(iii). He’s misrepresentation of himself as a student

on two visa applications in 2011 and the implausibility of the timeline of his

religious persecution and flight from China support the IJ’s finding that He was not

credible. See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021) (holding that an

asylum applicant’s submission of false information regarding her employment

history on a previous visa application supported an adverse credibility

determination); Lalayan v. Garland, 4 F.4th 822, 837 (9th Cir. 2021) (“Factual

findings, including implausibility findings, ‘are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.’” (citation omitted)).

Further, He’s failure to corroborate his story by providing supporting

2 documentation from his cousin, who was arrested at the same house church

gathering as He, or his aunt, with whom he lives and attends church, weighed

against his credibility. See Singh v. Holder, 638 F.3d 1264, 1270–71 (9th Cir.

2011) (“[I]f the asylum seeker whose credibility has been questioned testifies that

his family was subjected to atrocities in their home, and corroboration is readily

available because members of the family live with him . . . it is reasonable to

question his credibility if none of them testify to corroborate his account.”); Lai v.

Holder, 773 F.3d 966, 976 (9th Cir. 2014) (noting that notice to the petitioner and

the opportunity to provide corroborative evidence or explain why it is unavailable

is needed only “when an IJ’s other reasons for finding an asylum applicant not

credible are not supported by substantial evidence”).

The IJ erred in determining that the fact that He listed a family member’s

Los Angeles address on his bond for release from Department of Homeland

Security custody weighed against He’s credibility, given that He updated his

address to Hawaii upon moving there after his release. Because we consider 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)), when reviewing an

adverse credibility determination, we nevertheless uphold the IJ’s conclusion.

3. Because “an IJ’s decision is ordinarily reviewed by a three-member

panel,” Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003), He’s

3 argument that the BIA’s use of a three-member panel in this case constitutes

evidence of clear error by the IJ lacks merit.

PETITION DENIED.