Lihong Wang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2021
• Docket: 19-73006
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LIHONG WANG, No. 19-73006

Petitioner, Agency No. A099-912-071

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

Respondent.

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

Submitted April 16, 2021** San Francisco, California

Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.

Lihong Wang, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (BIA) denial of her application for asylum and withholding

of removal after this court remanded with instructions to consider whether evidence

in the record, aside from Wang’s non-credible testimony, was sufficient to establish

* 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). her eligibility for relief. See Wang v. Whitaker, 745 F. App’x 27, 28 (9th Cir. 2018).

We review the agency’s “legal conclusions de novo . . . and its factual findings for

substantial evidence,” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.

2017) (en banc) (citations omitted), and apply the standards governing adverse

credibility determinations under the REAL ID Act, Shrestha v. Holder, 590 F.3d

1034, 1039–40 (9th Cir. 2010). Exercising jurisdiction under 8 U.S.C. § 1252, we

deny the petition for review.

We reject as unsupported by the record Wang’s contentions that the BIA failed

to consider the documentary evidence or otherwise erred in its credibility analysis.

When, as here, an applicant for asylum and withholding of removal is found not

credible, the trier of fact considers whether the remaining record evidence is

sufficient to meet the burden of proof. Al-Harbi v. INS, 242 F.3d 882, 890–94 (9th

Cir. 2001). On remand, the BIA reviewed Wang’s documentary evidence and

“adequately described [its] concerns regarding the provenance and reliability of

those documents.” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). The BIA

concluded that the firing decisions for Wang and her husband, punishment decision

from the family planning committee giving notice of a fine, and the hospital

certificate purporting to show that Wang was fitted with an intrauterine device (IUD)

in China were “unreliable.” Specifically, the BIA referenced the IJ’s determination

that the hospital certificate from China lacked “other information to support its

2 veracity” (such as the date of the procedure, the medical professional who performed

it, and the individual who looked up the record), and pointed out numerous

inconsistencies between Wang’s testimony, the firing decisions, and the punishment

decision. See Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014).

Based on these inconsistencies between the documentary evidence and

Wang’s testimony, and the questioned veracity of Wang’s documentary evidence

itself, the BIA ascertained that the only reliable evidence in the record was the

country conditions evidence and medical records from the United States. But,

setting aside Wang’s non-credible testimony, these documents only established that

Wang was fitted with an IUD, which did not “rise to the level of harm required to

establish persecution.” Matter of M-F-W- & L-G-, 24 I. & N. Dec. 633, 640 (BIA

2008) (“[S]imply requiring a woman to use an IUD, and other more routine methods

of China’s implementation of its family planning policy, do not generally rise to the

level of harm required to establish persecution.”). As the record evidence does not

compel the conclusion that Wang established past persecution or demonstrated a

well-founded fear of persecution, the BIA’s conclusion that Wang failed to

demonstrate eligibility for asylum is supported by substantial evidence. See

Bringas-Rodriguez, 850 F.3d at 1059.

Further, contrary to Wang’s assertions, “mere economic disadvantage alone

does not rise to the level of persecution.” Gormley v. Ashcroft, 364 F. 3d 1172, 1178

3 (9th Cir. 2004). As the IJ found, Wang failed to present evidence of substantial

economic disadvantage. See Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir.

2006) (concluding that government seizure of the business owned by petitioner’s

father did not rise to the level of substantial economic disadvantage necessary for a

finding of persecution).

Because Wang could not establish her eligibility for asylum, the BIA

“properly concluded that she was not eligible for withholding of removal, which

imposes a heavier burden of proof.” Zehatye, 453 F.3d at 1190.

PETITION FOR REVIEW DENIED.