Kehua Gong v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2019
• Docket: 14-72391
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 18 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEHUA GONG; SHOUE ZENG, No. 14-72391

Petitioners, Agency Nos. A201-036-604 A201-036-605 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Submitted June 13, 2019** Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit Judges.

Petitioners Kehua Gong and Shoue Zeng petition for review of the Board of

Immigration Appeals’ (BIA) decision denying their applications for asylum and

* 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). withholding of removal.1 We have jurisdiction pursuant to 8 U.S.C. § 1252(b), and

we deny the petition.

The agency’s adverse credibility determination is supported by substantial

evidence.2 “Where the BIA issues its own decision but relies in part on the

immigration judge’s reasoning, we review both decisions.” Singh v. Holder, 753

F.3d 826, 830 (9th Cir. 2014) (quoting Flores-Lopez v. Holder, 685 F.3d 857, 861

(9th Cir. 2012)). Petitioners bear the burden of demonstrating their eligibility for

asylum and withholding of removal, see 8 U.S.C. §§ 1158(b)(1)(B),

1229a(c)(4)(A), and we may not disturb the agency’s factual findings or credibility

determinations if they are supported by substantial evidence. See Mairena v. Barr,

917 F.3d 1119, 1123 (9th Cir. 2019) (per curiam).

“Because credibility determinations are findings of fact by the [Immigration

Judge (“IJ”)], they are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” Manes v. Sessions, 875 F.3d 1261, 1263

(9th Cir. 2017) (per curiam) (internal quotation marks omitted). “Under the REAL

ID Act, which applies here, there is no presumption that an applicant for relief is

1 Petitioners do not address Convention Against Torture protection in their opening brief; we deem these claims abandoned. See, e.g., Christian Legal Soc’y v. Wu, 626 F.3d 483, 485 (9th Cir. 2010). 2 As the parties are familiar with the record and arguments on appeal, we recite only those facts necessary to decide the petition. 2 credible, and the IJ is authorized to base an adverse credibility determination on the

totality of the circumstances and all relevant factors.” Id. (internal quotation marks

omitted). There is no exhaustive list of criteria the agency must consider, but

“relevant factors will include demeanor, candor, responsiveness of the applicant or

witness, the inherent plausibility of the applicant or witness’s account, consistency

between the applicant or witness’s written and oral statements, internal consistency

of each statement, and consistency of statements with other evidence.” Shrestha v.

Holder, 590 F.3d 1034, 1040 (9th Cir. 2010).

In this case, the IJ cited several aspects of both petitioners’ testimony that

support an adverse credibility determination. Preliminarily, the IJ concluded that

both petitioners exhibited “blatant non-responsiveness” to the court’s questions and

observed that they were “evasive” in many of their answers. The IJ also noted

“several inconsistencies” in Zeng’s testimony, including the fact that she claimed

to live in hiding for three and a half years out of fear that Chinese family planning

authorities would forcibly sterilize her but also testified that she visited her

husband once a month in a government-run detention camp. Similarly, the IJ

observed that Gong testified he feared forced sterilization but could not explain

why family planning authorities did not sterilize him while they detained him in

their custody. Petitioners also conceded before the BIA that Chinese government

3 policy now forbids forced sterilization, but they continue to assert that they fear

sterilization if they are returned to China. Finally, petitioners claimed that Chinese

family planning officials were searching for them but also admitted leaving China

on valid travel documents that bore their true names. These inconsistencies,

coupled with the IJ’s assessment of petitioners’ demeanor, candor, and

responsiveness to questions, constitute sufficient evidence to uphold the agency’s

adverse credibility determination. See Hammad v. Holder, 603 F.3d 536, 544 (9th

Cir. 2010) (explaining that, under the substantial evidence standard, “the court

must affirm the BIA’s order when there is such relevant evidence as reasonable

minds might accept as adequate to support it, even if it is possible to reach a

contrary result on the basis of the evidence.” (internal quotation marks omitted)).

Petitioners argue that they should have been given additional opportunity to

provide further corroboration, but because the IJ considered petitioners’

documentary evidence in reaching the adverse credibility determination, the

agency was not required to afford further opportunity to provide additional

corroborative evidence. See Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir.

2017) (“When an IJ has considered the corroborating evidence provided by an

applicant for relief but deemed that evidence insufficient, the IJ need not afford the

applicant an opportunity to provide additional evidence.”). Further, petitioners fail

4 to identify any additional corroborative evidence that could have buttressed their

claim.

In view of the agency’s adverse credibility determination, petitioners failed

to meet their burden of establishing eligibility for either asylum or withholding of

removal. See Shrestha, 590 F.3d at 1048.

PETITION DENIED.