Wang v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2024
• Docket: 23-449
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RONG CHYUAN WANG, No. 23-449 Agency No. Petitioner, A087-173-134 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 11, 2024** Pasadena, California

Before: MURGUIA, Chief Judge, and MENDOZA and DE ALBA, Circuit Judges.

Petitioner Rong Chyuan Wang, a native and citizen of Taiwan, seeks review

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

Immigration Judge’s (“IJ”) (collectively, the “agency”) adverse credibility

* 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). determination, denial of Mr. Wang’s application for a waiver of inadmissibility,

and denial of relief under the Convention Against Torture (“CAT”). Where, as

here, the Board affirms the IJ’s order and cites Matter of Burbano, 20 I. & N. Dec.

872, 874 (BIA 1994), we “review both the IJ’s and the [Board]’s decisions.” Ruiz-

Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (citation omitted). To

the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. Reviewing the

agency’s factual findings for substantial evidence and its legal conclusions de

novo, Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022), we dismiss in

part and deny in part the petition for review.

1. We uphold an adverse credibility determination unless “any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir. 2017) (per

curiam). Accordingly, “only the most extraordinary circumstances will justify

overturning an adverse credibility determination.” Shrestha v. Holder, 590 F.3d

1034, 1041 (9th Cir. 2010) (citation omitted). Mr. Wang testified before the IJ on

four separate occasions. The agency identified numerous instances in which Mr.

Wang’s testimony was contradicted by his criminal history record, his visa and

asylum applications, and his own prior testimony. These were not small, nit-picky

details; the inconsistencies were significant and central to his claims for relief. For

example, he omitted instances in which his life was threatened by the mafia in his

2 23-449 asylum application, and he did not disclose his criminal record in his visa

application form. He also implausibly claimed that he did not know that

smuggling guns from the United States into Taiwan was illegal or that the mafia

would use guns to harm people. When asked to explain these omissions and

implausible sentiments, Mr. Wang was evasive and did not directly or adequately

answer the questions posed to him. The agency properly considered these

inconsistencies in Mr. Wang’s testimony and his general demeanor. See, e.g.,

Manes, 875 F.3d at 1263 (affirming agency’s adverse credibility determination on

similar grounds). Thus, we find that substantial evidence supports the agency’s

conclusion that Mr. Wang lacked credibility.

2. Mr. Wang challenges the agency’s discretionary denial of a waiver of

inadmissibility pursuant to 8 U.S.C. § 1182(h)(1)(B). We lack jurisdiction to

review this discretionary determination, except as to colorable constitutional or

legal claims. Mejia v. Gonzales, 499 F.3d 991, 999 (9th Cir. 2007) (explaining that

the court lacks jurisdiction over the agency’s decision under 8 U.S.C. § 1182(h),

“unless the petition raises a cognizable legal or constitutional question concerning

that determination”). Mr. Wang has not raised such a question in this case.

Therefore, we need not assess Mr. Wang’s argument that the Board abused its

discretion by affirming the IJ’s hardship determination because the independently

dispositive discretionary determination is unreviewable. See Simeonov v. Ashcroft,

3 23-449 371 F.3d 532, 538 (9th Cir. 2004) (citing INS v. Bagamasbad, 429 U.S. 24, 25

(1976) (“As a general rule courts and agencies are not required to make findings on

issues the decision of which is unnecessary to the results they reach.”)). Thus, we

dismiss the petition with respect to the waiver of inadmissibility.

3. Finally, substantial evidence supports the conclusion that Mr. Wang is

not eligible for protection under the CAT because—lacking credible testimony—

he failed to show that it is more likely than not that he would be tortured if returned

to Taiwan. See Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015) (relying on an

adverse credibility determination to deny protection under CAT), overruled on

other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021). And even if Mr.

Wang was able to show that he is likely to be tortured, he has not presented

evidence to suggest it would be inflicted “by or at the instigation of or with the

consent or acquiescence of a public official acting in an official capacity,” as

required to be eligible for protection under the CAT. 8 C.F.R. § 208.18(a)(1); see

also Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“We have

reversed agency determinations that future torture is not likely only when the

agency failed to take into account significant evidence establishing government

complicity in the criminal activity.”).

4 23-449 DISMISSED in part and DENIED in part.1

1 Mr. Wang’s motion to stay removal pending this Court’s resolution of his petition for review is DENIED as moot.

5 23-449