Shenglan Sun v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2022
• Docket: 16-72330
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SHENGLAN SUN, No. 16-72330

Petitioner, Agency No. A201-041-112

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

Respondent.

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

Submitted May 17, 2022** Pasadena, California

Before: OWENS and BRESS, Circuit Judges, and FITZWATER,*** District Judge.

Shenglan Sun, a citizen of China, petitions for review of a Board of

Immigration Appeals (BIA) decision dismissing her appeal of an Immigration 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, United States District Judge for the Northern District of Texas, sitting by designation. (IJ) order denying her applications for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT).1 “We review the BIA’s

findings of fact, including credibility findings, for substantial evidence and must

uphold the BIA’s finding unless the evidence compels a contrary result.” Tekle v.

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (citation omitted). We have

jurisdiction under 8 U.S.C. § 1252 and deny the petition.

Sun’s credibility is assessed “[c]onsidering the totality of the circumstances,

and all relevant factors,” including her demeanor, the “inherent plausibility” of her

story, and any inaccuracies or inconsistencies. 8 U.S.C. § 1158(b)(1)(B)(iii). In this

case, substantial evidence supports the IJ and BIA’s determination that Sun was not

credible, and therefore was not entitled to relief.

As an initial matter, the IJ made “specific, first-hand observations” about

noncredible aspects of Sun’s demeanor. Manes v. Sessions, 875 F.3d 1261, 1263

(9th Cir. 2017) (citation omitted). Among other things, the IJ found that Sun’s

testimony was scripted and that she hesitated when asked questions outside her

written story. We “give special deference to a credibility determination that is based

on demeanor” because “the IJ has an opportunity to make a first-person evaluation

of all of the subtly conveyed factors that, together, can be evidence of a petitioner’s

1 In her opening brief, Sun disclaimed any challenge to the denial of CAT relief, and that issue is therefore waived.

2 credibility.” Jibril v. Gonzales, 423 F.3d 1129, 1137 (9th Cir. 2005).

The BIA and IJ also identified numerous material inconsistencies in Sun’s

testimony. See, e.g., Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (“Major

inconsistencies on issues material to the alien’s claim of persecution constitute

substantial evidence supporting an adverse credibility determination.” (internal

quotation marks and citation omitted)), overruled in part on other grounds by Alam

v. Garland, 11 F.4th 1133, 1135–37 (9th Cir. 2021) (en banc); see also 8 U.S.C.

§ 1158(b)(1)(B)(iii). For example, the IJ observed that Sun’s testimony regarding

her church attendance was inconsistent with the letter Sun provided from her

church’s pastor. The IJ also found that the circumstances surrounding Sun’s

passport renewal were inconsistent with her testimony regarding her motivation for

fleeing China. Sun fails to challenge the BIA’s reliance on these findings, which

support the agency’s adverse credibility determination.

While Sun does challenge other inconsistencies on which the IJ and BIA

relied, those too are supported by substantial evidence. Specifically, the BIA could

rely on the fact that Sun gave inconsistent statements concerning whether she gave

information to the police while she was interrogated; whether anyone in her family

besides her aunt is Christian; and whether police looked for her at her parents’ home

in China. The BIA could regard these inconsistencies as material to Sun’s account

of persecution. And regardless, “even minor inconsistencies” may have a

3 “legitimate impact . . . on credibility.” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th

Cir. 2010).

Sun fairly argues that substantial evidence may not support the BIA’s specific

finding regarding the circumstances surrounding her previous visa application. But

given the numerous aspects of the adverse credibility determination that are amply

supported, this does not provide a basis for relief. See Alam, 11 F.4th at 1137

(explaining that there “is no bright-line rule under which some number of

inconsistencies requires sustaining or rejecting an adverse credibility

determination”).

Accordingly, absent credible testimony, substantial evidence supports the

denial of asylum and withholding of removal.

PETITION DENIED.