Min Gao v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2020
• Docket: 19-73175
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIN GAO, No. 19-73175

Petitioner, Agency No. A212-993-850

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 10, 2020** San Francisco, California

Before: TALLMAN, MURGUIA, and CHRISTEN, Circuit Judges.

Min Gao, a Chinese citizen, petitions for review of the Board of Immigration

Appeals’s (“BIA”) dismissal of his appeal from the Immigration Judge’s (“IJ”)

decision denying Gao’s applications for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). We have jurisdiction under 8

* 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). U.S.C. § 1252 and deny the petition.1

Because the BIA conducted its own review of the evidence and did not

expressly adopt the IJ’s decision, our review is limited to the BIA’s decision.

Singh v. Lynch, 802 F.3d 972, 974 (9th Cir. 2015) (citing Shrestha v. Holder, 590

F.3d 1034, 1039 (9th Cir. 2010)). We review the BIA’s factual findings, including

credibility determinations, for substantial evidence. Id. at 974–75; 8 U.S.C.

§ 1252(b)(4)(B). Questions of law are reviewed de novo. Halim v. Holder, 590

F.3d 971, 975 (9th Cir. 2009).

1. Adverse credibility determinations must be made after considering the

totality of the circumstances and all relevant factors including the consistency

between the applicant’s statements with other evidence. Shrestha, 590 F.3d at

1039–40; 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C). The BIA affirmed the

IJ’s adverse credibility determination based on inconsistencies between Gao’s

testimony and other evidence in the record, particularly documentary evidence and

the testimony of one of Gao’s witnesses. Gao testified that he was persecuted

because of his participation in a non-sanctioned church. The documentary

evidence introduced during the hearing, however, suggested that Gao was a

member of a government sanctioned church. Gao was given an opportunity to

explain this inconsistency, but he was unable to proffer a reasonable explanation.

1 Gao’s motion for stay of removal (Doc. 1) is denied as moot.

2 Therefore, substantial evidence supports the adverse credibility finding. See id. at

1039–40, 1044–45. Because “we must uphold the IJ’s adverse credibility

determination so long as even one basis is supported by substantial evidence,” Rizk

v. Holder, 629 F.3d 1083, 1088–89 (9th Cir. 2011) (citation omitted), we need not

address the other inconsistencies identified by the BIA.

Because substantial evidence supports the adverse credibility determination,

Gao has not met his burden of proof that he is eligible for asylum, see 8 U.S.C. §

1158(b)(1)(B); 8 C.F.R. § 208.13(a), or withholding of removal, see 8 U.S.C. §

1231(b)(3)(C); 8 C.F.R. § 208.16(b); see also In re M-S-, 21 I. & N. Dec. 125, 129

(B.I.A. 1995) (“A persecution claim which lacks veracity cannot satisfy the

burdens of proof and persuasion necessary to establish eligibility for asylum and

withholding relief.” (citations omitted)). Gao waived any challenge to the

determination that he is ineligible for CAT relief by failing to raise the issue before

this Court. See Balser v. Dep’t. of Justice, 327 F.3d 903, 911 (9th Cir. 2003).

The BIA did not err in denying Gao’s motion to remand. 8 C.F.R. §

1003.2(a). Gao’s request was properly construed as a motion to reopen and Gao

did not establish that the new evidence he sought to have reviewed was not

available or could not have been discovered in time to be presented during his

initial removal proceedings. Id. § 1003.2(c)(1).

PETITION FOR REVIEW DENIED.