Weng v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 2024
• Docket: 22-1184
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XIN XING WENG, No. 22-1184 Agency No. Petitioner, A208-928-146 v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 29, 2024** Pasadena, California

Before: GOULD, IKUTA, and FORREST, Circuit Judges.

Xin Xing Weng petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) dismissing his appeal of a denial by an Immigration

Judge (“IJ”) of his applications for asylum, withholding of removal, and protection

* 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). under the Convention Against Torture (“CAT”). We have jurisdiction under 8

U.S.C. § 1252, and we deny the petition.

Where, as here, the BIA affirms the IJ’s reasoning and adds its own

reasoning, we review both decisions. Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th

Cir. 2016). We review de novo claims of due process violations. Cruz Rendon v.

Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). “We review factual findings,

including adverse credibility decisions, under the deferential substantial evidence

standard.” Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). Under that

standard, “the administrative findings of fact are conclusive unless any reasonable

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

§ 1252(b)(4)(B).

We decline to address Weng’s due process challenge to the IJ’s

consideration of the credible fear worksheet. Weng did not raise this claim on

appeal to the BIA, so he did not exhaust his administrative remedies as to this

issue. Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023). Weng’s

argument that there was no verification that a competent interviewer was used is

likewise unavailing. The asylum officer noted that no interpreter was used but

certified that he was fluent in Mandarin. Moreover, the credible fear worksheet

indicates that Weng stated under oath that he understood the questions that the

officer asked.

2 22-1184 Substantial evidence supports the IJ’s adverse credibility finding. See Silva-

Pereira v. Lynch, 827 F.3d 1176, 1184–85 (9th Cir. 2016). The IJ reasonably

concluded that there were inconsistencies between Weng’s credible fear interview

and his testimony regarding (1) the location of the house church meetings; (2) the

number and genders of the church members; (3) the number of times Weng

reported to authorities after being released from detention; (4) the nature of the

document he was forced to sign upon his release; (5) whether police interrogated

him; and (6) whether the police came looking for Weng after he left China.

Weng’s argument that these inconsistencies are too minor to support the agency’s

adverse credibility determination is unavailing. See Li v. Garland, 13 F.4th 954,

959 (9th Cir. 2021) (“[E]ven minor inconsistencies that have a bearing on a

petitioner’s veracity may constitute the basis for an adverse credibility

determination.”). In any event, these inconsistencies were not minor, as they

related to the amount of contact Weng had with the authorities, which bears

directly on his claim of persecution. See Manes v. Sessions, 875 F.3d 1261, 1264

(9th Cir. 2017) (per curiam).

Substantial evidence also supports the IJ’s determination that, absent

Weng’s credible testimony, the record does not establish eligibility for asylum or

withholding of removal. The two letters Weng submitted to support his claims

were inconsistent with his testimony, and Weng failed to explain the

3 22-1184 inconsistencies on appeal to the BIA. The record does not compel a contrary

conclusion. See Silva-Pereira, 827 F.3d at 1185–86.

The adverse credibility determination did not “necessarily defeat [Weng’s]

CAT claim.” Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014). However,

Weng does not identify record evidence that “meet[s] the high threshold of

establishing that it is more likely than not that [Weng] will be tortured by or with

the consent or acquiescence of a public official.” Mukulumbutu v. Barr, 977 F.3d

924, 927 (9th Cir. 2020). Weng therefore has not “establish[ed] entitlement to

protection under CAT.” Plancarte Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir.

2022).

PETITION DENIED.

4 22-1184