Miao v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2023
• Docket: 21-558
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 20 2023

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENHAI MIAO, No. 21-558

Petitioner, Agency No. A215-668-305 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General

Respondent.

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

Submitted June 14, 2023** Pasadena, California

Before: BYBEE and CHRISTEN, Circuit Judges, and FITZWATER,*** District Judge.

* 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). *** The Honorable Sidney A. Fitzwater, Senior United States District Judge for the Northern District of Texas, sitting by designation. Benhai Miao, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (BIA) dismissal of his applications for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT).

We have jurisdiction under 8 U.S.C. § 1252, and review factual

findings—including adverse credibility determinations—for substantial evidence.

Shrestha v. Holder, 590 F.3d 1034,1039–40 (9th Cir. 2010). We deny the petition.

The BIA’s decision upholding the immigration judge’s (IJ) adverse

credibility determination is supported by substantial evidence. The inconsistencies

identified by the BIA and the IJ are not “utterly trivial,” and several have bearing

on the strength of Miao’s claim of persecution. Id. at 1043–44. For example, at

his merits hearing before the IJ, Miao testified to a significant encounter with the

police where he was arrested, detained, and beaten. He did not mention this

encounter during his credible fear interview; indeed, during his credible fear

interview he stated that he had never been arrested. Miao testified that his injuries

were severe enough that he was hospitalized for ten days, but his medical evidence

only documented outpatient treatment. Other inconsistent or uncorroborated

statements included Miao’s assertions that he rented an apartment to hide from the

authorities, that the police visited his parents’ home looking for him after he left

China, and that there was a warrant for his arrest online. On this record, the BIA’s

2 conclusion that the IJ’s adverse credibility determination was not clearly erroneous

was supported by substantial evidence of the type the REAL ID Act identifies as

relevant to the credibility inquiry. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

1231(b)(3)(C), 1229a(c)(4)(C); Bringas-Rodriguez v. Sessions, 850 F.3d 1051,

1059 (9th Cir. 2017) (en banc) (“A finding . . . is not supported by substantial

evidence when any reasonable adjudicator would be compelled to conclude to the

contrary based on the evidence in the record.” (internal quotation marks and

citation omitted)).

Absent credible testimony, Miao must demonstrate that “[t]he remaining

evidence in the record . . . compel[s] [this court] to overturn the IJ’s determination

that [he] failed to carry [his] burden of proving eligibility.” Ling Huang v. Holder,

744 F.3d 1149, 1156 (9th Cir. 2014). It does not. Miao’s documentary evidence is

itself often inconsistent with his testimony, and he did not submit evidence to

corroborate a number of his claims. Without credible testimony, the record does

not compel the conclusion that Miao suffered past persecution or that he has a

well-founded fear of future persecution. See Bringas-Rodriguez, 850 F.3d at 1059.

Because Miao fails to meet the burden of proof for his asylum claim, his

withholding of removal claim also fails. See Ramirez-Munoz v. Lynch, 816 F.3d

1226, 1230 (9th Cir. 2016) (“A petitioner who fails to satisfy the lower standard of

3 proof for asylum necessarily fails to satisfy the more stringent standard for

withholding of removal.”).

The BIA’s denial of Miao’s claim for CAT protection is also supported by

substantial evidence. Without credible testimony, Miao is unable to demonstrate

that he faces a particularized risk of torture if he returns to China despite country

conditions that are generally unfavorable to Christians. See Dawson v. Garland,

998 F.3d 876, 885 (9th Cir. 2021) (“The circumstances of [Christians] in general . .

. do not vitiate the agency's specific findings as to [Miao's] situation.”).

PETITION DENIED.