Li v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 2024
• Docket: 23-198
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DEQI LI, No. 23-198 Agency No. Petitioner, A099-333-730 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted March 27, 2024** San Francisco, California

Before: WALLACH,** NGUYEN, and BUMATAY, Circuit Judges.

Deqi Li, a citizen of the People’s Republic of China, petitions for review of

a decision by the Board of Immigration Appeals (“BIA”) affirming the denial by

an immigration judge (“IJ”) of his applications for asylum, withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Evan J. Wallach, United States Senior Circuit Judge for the Federal Circuit, sitting by designation. removal, and protection under the Convention Against Torture (“CAT”).1 As the

parties are familiar with the facts, we do not recount them here. Li timely seeks

our review. We have appellate jurisdiction under 8 U.S.C. § 1252, and we deny

the petition.

1. We review an adverse credibility determination for substantial

evidence. Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir. 2004). Under this

standard, we will uphold the BIA’s adverse credibility determination unless the

petitioner's evidence was “so compelling that no reasonable factfinder could find

that he was not credible.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003)

(internal quotation omitted). “When the BIA has reviewed the IJ's decision and

incorporated parts of it as its own, we treat the incorporated parts of the IJ's

decision as the BIA's.” Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007)

(citing Molina–Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002)). We find that

substantial evidence supports the BIA’s adverse credibility determination.2

1 The BIA determined that Li waived his CAT claim by failing to challenge the IJ’s denial of CAT relief before the BIA. Li’s petition for review in this court does not challenge that determination. 2 In dismissing Li’s appeal, the BIA did not rely on the IJ’s findings concerning Li’s demeanor or non-responsiveness. In determining that the IJ’s adverse credibility determination was not clearly erroneous, the BIA relied only on inconsistencies that appeared in the record through transcript testimony and Li’s declaration. We limit our review to those reasons relied upon by the BIA. Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (“[W]e do not review those parts of

2 An adverse credibility determination must be supported by “specific and

cogent reasons.” Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010). When

an adverse credibility determination is based on inconsistencies, those

inconsistencies need not go to the heart of the claim, though “trivial inconsistencies

that under the total circumstances have no bearing on a petitioner’s veracity should

not form the basis for an adverse credibility determination.” Id. at 1044.

The BIA highlighted two inconsistencies between Li’s written declaration

and his live testimony that the IJ relied on in making the adverse credibility

determination. The first inconsistency concerns the number of times and in which

years family planning officials threatened to sterilize Li. The second inconsistency

concerns the level of harm Li suffered during the second incident in 2003. Li was

provided an opportunity to explain these inconsistencies, and the IJ found those

explanations inadequate. And while Li argues that these inconsistencies are

“trivial,” “under the Real ID Act, even minor consistencies that have a bearing on a

petitioner’s veracity may constitute the basis for an adverse credibility

determination.” Li v. Garland, 13 F.4th 954, 959 (9th Cir. 2021) (citation

omitted).3 The BIA found that the IJ did not commit clear error in determining that

the IJ’s adverse credibility finding that the BIA did not identify as ‘most significant’ and did not otherwise mention.”). 3 Li’s arguments that these inconsistencies may be attributable to memory loss or mistranslations were not developed before the agency, and we therefore may not consider them now. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.

3 these inconsistencies weighed heavily against Li’s credibility, and the record does

not compel us to reach a contrary conclusion.

2. The documentary evidence submitted by Li does not independently

establish his eligibility for asylum or withholding of removal. The IJ observed that

although Li submitted a certificate of a ligation operation performed on his wife,

that certificate did not indicate whether the procedure was forced or voluntary, and

there was no other evidence that his wife was ever subject to a “forced abortion as

opposed to a voluntary one.” Without such evidence, Li would not be entitled to

per se refugee status, even assuming Matter of J-S-, 24 I&N Dec. 520 (A.G. 2008),

did not apply retroactively to his petition.

Absent Li’s discredited testimony or any supporting documentation, the

BIA’s decision to affirm the IJ’s denial of asylum and withholding of removal is

supported by substantial evidence.

PETITION DENIED.

2003) (“Before a petitioner can raise an argument on appeal, the petitioner must first raise the issue before the BIA or IJ.”).