Sainan Liu v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2023
• Docket: 20-70457
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2023

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

SAINAN LIU, No. 20-70457 Petitioner, Agency No. A205-776-136 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 16, 2023 Honolulu, Hawaii

Before: BEA, COLLINS, and LEE, Circuit Judges.

Memorandum joined by Judge BEA and Judge COLLINS; Partial Concurrence and Dissent by Judge LEE

Petitioner Sainan Liu, a citizen of China, petitions for review of an order of

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

Judge (“IJ”) denying her applications for asylum, withholding of removal, and

relief under the Convention Against Torture (“Torture Convention”). We have

jurisdiction under § 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 1252, and § 2242(d) of the Foreign Affairs Reform and Restructuring Act,

8 U.S.C. § 1231 note. See Nasrallah v. Barr, 140 S. Ct. 1683, 1690–91 (2020).

We grant in part and deny in part the petition for review.

1. In upholding the IJ’s finding that Liu was not credible, the BIA held that

the IJ did not clearly err in concluding that several aspects of Liu’s testimony were

implausible. Specifically, the agency concluded that Liu implausibly testified that

her parents hired a tutor for her “at a rate of between one-half and two-thirds of her

father’s salary” and then, on top of that “extraordinary expense,” they also paid

substantial sums towards her travel. Moreover, the agency found that it was hard

to square this claimed extraordinary financial effort with Liu’s testimony about her

parents’ lack of interest in her activities or in a major life event such as her baptism

(which they did not attend), as well as her parents’ initial lack of effort, over

several years, to provide her with supporting documents. Although we might not

have drawn the same inferences, the agency’s reading of the record was

permissible. We review an adverse credibility determination for substantial

evidence, see Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020), and we

cannot say that the record compels a conclusion contrary to the agency’s. See

8 U.S.C. § 1252(b)(4)(B).

The agency also permissibly concluded that Liu’s documentary evidence

was insufficient to rehabilitate her credibility or to independently establish her

2 claim of past persecution. The agency noted that one document Liu supplied, a

“household registration,” contained “glaring” mistakes that undermined its

reliability. The agency also found that the circumstances leading up to her

production of medical records—Liu claimed her mother “unexpectedly” found

them among “old textbooks” shortly before Liu’s final merits hearing in

immigration court—cast doubt on their reliability. The agency also faulted Liu for

the lack of any corroborating documents to support Liu’s claim that she was

expelled from school. The agency’s weighing of this evidence was permissible,

and the record does not compel us to adopt a contrary assessment.

Given the agency’s adverse credibility determination and its discounting of

the documentary evidence, the agency properly concluded that Liu had failed to

establish past persecution to support either an asylum claim or a withholding of

removal claim. The IJ then proceeded to further conclude that Liu had failed to

establish a well-founded fear of future persecution or a likelihood of future

persecution. On this score, the IJ expressly credited Liu’s testimony that she was

now a practicing Christian, but the IJ concluded that, based on the record evidence

concerning the current treatment of Christians in China, there was not even a “one-

in-ten chance of future persecution” of Liu. The BIA, however, declined to

consider the IJ’s analysis of these points. Citing the relevant pages of the IJ’s

ruling, the BIA dismissed them as “alternative analyses” that were unnecessary to

3 the BIA’s decision. That was error. An alien who has failed to establish past

persecution, even due to an adverse credibility determination, may still warrant

asylum if there is nonetheless a well-founded fear of future persecution. See Al-

Harbi v. INS, 242 F.3d 882, 890 (9th Cir. 2001). Because the BIA failed to

consider the issue of possible future persecution, we grant Liu’s petition and

remand to the agency with instructions to consider that issue in connection with

Liu’s application for asylum and withholding of removal.

2. However, we deny the petition with respect to Liu’s claim for relief under

the Torture Convention. Because we have upheld the agency’s adverse credibility

determination and its discounting of Liu’s documentary evidence, we conclude that

substantial evidence supports the BIA’s conclusion that Liu did not establish past

harm for purposes of her Torture Convention claim. Moreover, with respect to the

Torture Convention claim, the BIA did not make the same mistake it made with

respect to asylum and withholding of removal. The BIA specifically upheld the

IJ’s determination that, despite ongoing religious persecution in China, Liu failed

to establish a “particularized risk of torture” (emphasis added). Because the

country conditions evidence in the record does not compel a contrary conclusion,

the agency properly denied relief under the Torture Convention.

PETITION GRANTED IN PART AND DENIED IN PART.

4 Liu v. Garland, No. 20-70547 FILED LEE, Circuit Judge, concurring-in-part and dissenting-in-part. JUL 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I largely agree with the majority opinion’s analysis, but I dissent from the

conclusion that substantial evidence supports the Immigration Judge’s (IJ) adverse

credibility finding.

The Board of Immigration Appeals (BIA) provided three reasons for affirming

the adverse credibility finding, all of which rest on “impermissible speculation and

conjecture.” Ge v. Ashcroft, 367 F.3d 1121, 1124–25 (9th Cir. 2004). What “seems

like common sense to an IJ might be rooted in significant differences between the

IJ’s and witness’s cultural backgrounds and systems.” Lalayan v. Garland, 4 F.4th

822, 837 (9th Cir. 2021). And for that reason, it “must be stressed that what sounds

peculiar in one country may be the norm in another. Consequently, non-evidence-

based assumptions about conduct in the context of other cultures must be closely

scrutinized.” Chouchkov v. INS, 220 F.3d 1077, 1083 n.15 (9th Cir. 2000).

The agency’s first assertion—that it is questionable that Sainan Liu’s parents

would spend such a significant part of their income on her education—is based on

the IJ’s speculation about what Liu’s family could afford and how much her family

was willing to spend on her education. Such speculation cannot form the basis for

an adverse-credibility finding. The agency also reached this conclusion with

incomplete information; it had no information about Liu’s mother’s income, any potential savings the family had, or how other family members may contribute to the

household income.

The agency’s second assertion is equally based on speculation. The IJ thought

it improbable that Liu’s parents (who are not Christians) were not more involved in

their daughter’s church activities, given the amount of money that they spent on her

education. Such a finding is based on “personal conjecture about what [Liu’s

parents] likely would and would not do” under certain circumstances. See Lopez-

Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996).

Finally, the agency found it implausible that Liu’s mother was too busy taking

care of her ailing mother to search for the documents that could support Liu’s asylum

claim. That, too, is based on speculation. See, e.g., Ge, 367 F.3d at 1126.

I respectfully dissent.