Wattana Kotchai v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2019
• Docket: 17-71200
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WATTANA KOTCHAI; PHAIRAT No. 17-71200 PHOONMAROENG, Agency Nos. A206-540-907 Petitioners, A206-540-908

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

Respondent.

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

Submitted October 21, 2019** Honolulu, Hawaii

Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.

Petitioners Wattana Kotchai and Phairat Phoonmaroeng,1 natives and

citizens of Thailand, petition for review of the Board of Immigration Appeals’

* 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). 1 Phoonmaroeng is Kotchai’s husband and is included as a derivative beneficiary of Kotchai’s asylum application. (BIA) order affirming the Immigration Judge’s (IJ) denial of Kotchai’s application

for asylum. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

The BIA’s adverse credibility determination is supported by substantial

evidence. Kotchai testified inconsistently as to whether her 2013 Facebook posts

critical of the Thai parliament were public or private. That inconsistent testimony

was “not . . . a mere trivial error such as a misspelling,” Shrestha v. Holder, 590

F.3d 1034, 1044 (9th Cir. 2010), but was directly related to the plausibility of

Kotchai’s claim that the Thai government saw and investigated her Facebook

posts. See id. at 1047 (“[W]hen an inconsistency is at the heart of the claim it

doubtless is of great weight.”). Kotchai failed to provide an explanation for her

inconsistent testimony. See id. at 1044 (“When an inconsistency is cited as a factor

supporting an adverse credibility determination, . . . the petitioner’s explanation for

the inconsistency, if any, should be considered in weighing credibility.”).

The BIA’s adverse credibility determination is also supported by its finding

that Kotchai inadequately explained why she was in the United States rather than

in Thailand. The IJ reasoned that Kotchai’s explanation—that she missed her

husband and thought that her repeated visits to the United States would extend her

visa expiration—suggested that Kotchai overstayed her visa for economic reasons,

thus contradicting her claim that she applied for asylum due to fear of persecution.

Kotchai’s contention that the IJ should have been satisfied with Kotchai’s

2 explanation, fails to demonstrate an “extraordinary circumstance[]” that

“compel[s]” us to disagree with the IJ’s credibility determination. Id. at 1041; 8

U.S.C. § 1252(b)(4)(B).2

In the alternative, substantial evidence supports the BIA’s conclusion that

Kotchai did not demonstrate a well-founded fear of future persecution. Kotchai’s

2013 Facebook posts were critical of the parliament that was overthrown in 2014.

While evidence indicates that the current government disproportionately punishes

certain anti-government speech, there is no record evidence that the post-coup

government is targeting those who were critical of the pre-coup government. For

these reasons, the BIA did not err in concluding that Kotchai failed to demonstrate

that her fear of future persecution is “objectively reasonable.” Parada v. Sessions,

902 F.3d 901, 909 (9th Cir. 2018) (quoting Sael v. Ashcroft, 386 F.3d 922, 924 (9th

Cir. 2004)).

Petition DENIED.

2 We are skeptical of the BIA’s conclusion that Kotchai’s references to a police officer as a “cousin,” “distant relative,” and “friend” were inconsistent given the various ways in which family friends may be described in Thai culture. But the BIA’s conclusion is adequately supported on other grounds. See Rizk v. Holder, 629 F.3d 1083, 1088–89 (9th Cir. 2011).