Jianlong Hao v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 11, 2021
• Docket: 19-73229
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 11 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JIANLONG HAO, No. 19-73229

Petitioner, Agency No. A200-274-076

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

Respondent.

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

Submitted May 7, 2021** Portland, Oregon

Before: W. FLETCHER, BEA, and FRIEDLAND, Circuit Judges.

Jianlong Hao, a native and citizen of China, petitions for review of a Board

of Immigration Appeals’ (“BIA”) decision upholding the denial of Hao’s

applications 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”). Hao claimed that he left China after being arrested,

detained, and beaten for five days for practicing Christianity in an underground

church. The immigration judge (“IJ”) concluded that his testimony was not

credible and denied all relief. The BIA affirmed the IJ’s adverse credibility

determination and dismissed Hao’s appeal. For the reasons explained below, we

deny Hao’s petition in part, and dismiss it in part.

The IJ must assess credibility under “the totality of the circumstances” and

may arrive at an adverse credibility determination based on “any inaccuracies or

falsehoods in [the applicant’s] statements, without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.”

8 U.S.C. § 1158(b)(1)(B)(iii); see also id. §§ 1229a(c)(4)(C), 1231(b)(3)(C).

Here, the BIA and IJ identified three inconsistencies in Hao’s testimony, which

support the denial of Hao’s applications for asylum and withholding of removal for

lack of credibility.

First, the BIA and IJ cited an inconsistency about when Hao lost his job. In

his declaration, Hao claimed that he lost his job in 2010, which led him to be

hospitalized for depression. He said that while he was receiving treatment, he met

a hospital volunteer who introduced him to the underground church. When

testifying, however, Hao claimed that he lost his job in October 2011. The

2 government’s attorney directly asked Hao about the conflicting statements, which

provided him adequate opportunity to explain the inconsistency. See Rizk v.

Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (“[T]he opportunity to explain may be

provided through cross-examination by the government, or even direct

examination by the [petitioner’s] own attorney, not just through a colloquy

between the [petitioner] and the IJ.”) (citations omitted). The IJ reasonably

rejected Hao’s explanation that he remained an unsalaried manager and

shareholder of the company until October 2011 because it insufficiently addressed

the discrepancy. Additionally, in providing his explanation, Hao offered two

inconsistent reasons for why he left his job.

Second, the BIA and IJ cited a discrepancy about whether Hao was

hospitalized after being detained and beaten by the police. In his initial testimony,

he stated that immediately after being released from police custody, he went to his

parents’ home where they cared for him for about ten days. But when confronted

with a statement from his mother that he was first hospitalized, Hao testified that

he had been hospitalized, yet failed to explain the inconsistency. Because the

hospitalization relates directly to Hao’s past persecution claim, the BIA reasonably

rejected his argument that it was a trivial omission. See Silva-Pereira v. Lynch,

827 F.3d 1176, 1185 (9th Cir. 2016) (explaining that adverse credibility

3 determinations may be supported by omissions that tell a more compelling story of

persecution).

Third, the BIA and IJ noted that Hao testified that he had never left China

prior to entering the United States through the Canadian border. When asked why

his passport showed that he had traveled to Malaysia and Thailand before fleeing

China, Hao admitted he had been to those countries but provided no explanation

for his conflicting testimony. In light of the other inconsistencies, it was

appropriate for the BIA to consider this testimony in upholding the IJ’s adverse

credibility determination. Shrestha v. Holder, 590 F.3d 1034, 1043 n.4 (9th Cir.

2010) (“[M]inor inconsistencies, when aggregated or when viewed in light of the

total circumstances, may undermine credibility.”).

We therefore conclude that the BIA correctly determined that the IJ’s

adverse credibility finding is supported by substantial evidence. Accordingly, we

need not reach Hao’s arguments that, when credited, he has established past

persecution and qualifies for withholding of removal.

Finally, we lack jurisdiction to review the IJ’s rejection of Hao’s application

for CAT relief because Hao failed to exhaust that claim before the BIA. See

Brown v. Holder, 763 F.3d 1141, 1146 (9th Cir. 2014) (“A petitioner may not

challenge an order of removal unless he has exhausted his challenge before the

4 BIA.”). We therefore dismiss that portion of his petition.

The petition is DENIED in part and DISMISSED in part.