Li Xue v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2022
• Docket: 20-73149
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LI LIN XUE, No. 20-73149

Petitioner, Agency No. A209-420-047

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

Respondent.

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

Submitted February 17, 2022** Honolulu, Hawaii

Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.

Li Lin Xue, a citizen of China, petitions for review of a Board of Immigration

Appeals (“BIA”) order upholding the denial of his claims for asylum and

withholding of removal under the Immigration and Nationality Act. We have

jurisdiction under 8 U.S.C. § 1252, Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir.

* 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). 2017), and deny the petition.

When the BIA partially adopts the decision of an Immigration Judge (“IJ”)

and contributes its own reasoning, we review both the BIA decision and the IJ

decision, to the extent the BIA adopted it. Sinotes-Cruz v. Gonzales, 468 F.3d 1190,

1194 (9th Cir. 2006). Here, the BIA adopted and affirmed the IJ’s denial based on

the IJ’s adverse credibility determination. “We review factual findings, including

adverse credibility determinations, for substantial evidence.” Wang, 861 F.3d at

1007 (quoting Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014)). When

reviewing an adverse credibility determination, we consider the totality of the

circumstances and all relevant factors, see Alam v. Garland, 11 F.4th 1133, 1137

(9th Cir. 2021) (en banc), and may reverse only if the record compels a contrary

conclusion, see Wang, 861 F.3d at 1007.

Xue’s testimony was marked by inconsistencies, implausibilities, and

contradictions with the record. For example, Xue testified that he first learned about

Christianity from a friend in 2016. But his baptismal certificate notes “childhood”

as the time of his belief in God. The IJ was unpersuaded by Xue’s explanation that

his mother was also a Christian (an allegation absent from Xue’s testimony on direct

examination or the letter submitted by Xue’s father). While it is possible that Xue’s

mother was a Christian, Xue’s explanation about his baptismal certificate is

inconsistent with his assertion that he learned of Christianity from a friend in 2016.

2 See Wang, 861 F.3d at 1007 (holding that credibility determinations “may be made

‘without regard to whether an inconsistency, inaccuracy, or falsehood goes to the

heart of the applicant’s claim’” (internal citation omitted)). Next, although Xue

testified that he was detained in a police station in Fuqing City for fifteen days, Xue

was unable to describe even the approximate part of town in which he was detained

and his father’s letter makes no mention of accepting Xue upon his release or posting

Xue’s bail. See Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010) (IJ may

base a credibility determination on the inherent plausibility of the applicant’s

account). Taken together, these inconsistencies—among others—and the IJ’s

implausibility findings provide substantial evidence for the agency’s adverse

credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii) (adverse credibility

determination is based on “the totality of the circumstances”). And without credible

testimony, Xue fails to establish his eligibility for asylum and withholding of

removal.

Xue also argues the BIA erred by failing to apply the notice and explanation

requirements of Ren v. Holder, 648 F.3d 1079, 1090–93 (9th Cir. 2011). But because

the agency’s adverse credibility determination is supported by substantial evidence

and did not depend on Xue’s lack of corroboration, Ren’s notice and explanation

requirements do not apply. See id. at 1089. The agency merely noted that Xue did

not provide corroborative evidence to rescue his discredited testimony or

3 independently satisfy his burden of proof.

PETITION DENIED.