Suli Kang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 8, 2022
• Docket: 15-72329
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SULI KANG, No. 15-72329

Petitioner, Agency No. A089-997-927

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

Respondent.

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

Submitted June 1, 2022**

Before: FRIEDLAND, SANCHEZ, and H. THOMAS, Circuit Judges.

Suli Kang, a native and citizen of China, petitions for review of the Board of

Immigration Appeals’ order dismissing her appeal from an immigration judge’s

(“IJ”) decision denying her application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).

* 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings, applying the standards governing adverse

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

1034, 1039-40 (9th Cir. 2010). We dismiss in part and deny in part the petition for

review.

To the extent Kang challenges the agency’s denial of her claim for CAT

protection, we lack jurisdiction because Kang did not preserve that claim in the

agency. See Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019). We reach

Kang’s claim for withholding of removal, which the BIA decided on the merits

despite having concluded that it too had been waived on appeal. See Figueroa v.

Mukasey, 543 F.3d 487, 492 (9th Cir. 2008) (“[W]e do not employ the exhaustion

doctrine in a formalistic manner, but rather inquire into whether the issue was

before the BIA such that it had the opportunity to correct its error.”).

To overturn an adverse credibility determination, we must find that the

evidence not only supports a contrary conclusion but compels it. Ming Dai v.

Garland, 9 F.4th 1142, 1145 (9th Cir. 2021). Substantial evidence supports the

agency’s adverse credibility determination for several reasons, including the

inconsistencies between Kang’s testimony and the documentation she submitted

concerning the treatment she endured at the hands of police officers and other

circumstances of her arrest and interrogation. See Silva-Pereira v. Lynch, 827 F.3d

2 15-72329 1176, 1185 (9th Cir. 2016) (“[A]n adverse credibility determination may be

supported by omissions that are not ‘details,’ but new allegations that tell a ‘much

different—and more compelling—story of persecution than [the] initial

application.” (quoting Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011))).

Substantial evidence also supports the determination that Kang testified evasively.

See Bingxu Jin v. Holder, 748 F.3d 959, 965 (9th Cir. 2014) (“The record supports

the agency’s demeanor finding, as there are many instances where the IJ explicitly

said that Jin’s answer was nonresponsive . . . .”).

Additionally, the agency permissibly relied on Kang’s failure to produce

corroborative evidence concerning her church attendance in the United States,

particularly because Kang expressly sought and obtained a continuance to obtain

that evidence nearly three years before her final hearing before the IJ. See Ren v.

Holder, 648 F.3d 1079, 1093-94 (9th Cir. 2011) (“[T]he continuance and the

hearing itself provides an applicant represented by counsel with the statutorily

required opportunity.”).

Kang’s claims for asylum and withholding of removal therefore fail. See

Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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