Xiao Wu v. William P. Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 15, 2019
• Docket: 14-72217
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 15 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

XIAO PING WU, No. 14-72217

Petitioner, Agency No. A200-159-530

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

Respondent.

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

Submitted February 13, 2019** Honolulu, Hawaii

Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.

Xiao Ping Wu petitions for review of the denial of his application for asylum

and withholding of removal by the Board of Immigration Appeals (BIA). We deny

the petition for review.

* 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 BIA reviewed the immigration judge’s (IJ) adverse credibility finding

for clear error. It identified four specific reasons for affirming the IJ’s credibility

finding. We review only the reasons explicitly identified by the BIA, as well as the

reasoning articulated in the IJ’s decision in support of those stated reasons. Tekle

v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). Substantial evidence supports

two of the four reasons cited by the BIA.1

1. Wu provided inconsistent statements with regard to whether he returned to

his home after the incident with the deputy director. Wu was confronted with the

perceived inconsistency and failed to provide a reasoned explanation. Wu asserts

that a reasonable fact-finder could not conclude that his wife’s statement implied

that she never saw Wu again. We disagree. Although the record could have

supported a different conclusion than the one the BIA reached, applying the proper

“healthy measure of deference” to the BIA, a different conclusion is not compelled.

Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010).

2. In their written statements, Wu and his wife failed to mention that Wu would

be subject to sterilization if he returned to China. Generally, “omissions are less

1 The BIA also identified other inconsistencies and omissions. Wu was not confronted on these issues. Therefore, substantial evidence does not support these findings. Zi Lin Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004). However, the two remaining inconsistencies are sufficient to support the adverse credibility finding. See Lianhua Jiang v. Holder, 754 F.3d 733, 738-39 (9th Cir. 2014). 2 probative of credibility than inconsistencies created by direct contradictions in

evidence and testimony.” Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014).

However, omissions that tell a “much different—and more compelling—story of

persecution than [the] initial application” can support an adverse credibility

finding. Silva-Pereira v. Lynch, 827 F.3d 1176, 1185-86 (9th Cir. 2016) (alteration

in original) (citation omitted). Here, the threat of sterilization for revenge presents

a much more compelling fear of future persecution. Wu provided explanations for

the omissions; however, the BIA rejected them because they were not “reasonable

and plausible.” See Rizk v. Holder, 629 F.3d 1083, 1091 (9th Cir. 2011). Wu

argues that the BIA was required to explain why his explanation was not plausible.

Although an explanation may have been helpful, we have held in similar

circumstances that “[n]o express, point-by-point rejection of [the] explanations [is]

necessary.” Id. Therefore, we cannot say that the record compels the conclusion

that Wu was credible. Id. at 1087.

The BIA’s adverse credibility determination barring Wu’s asylum claim also

bars his withholding of removal claim. Yali Wang v. Sessions, 861 F.3d 1003,

1009 (9th Cir. 2017).

PETITION FOR REVIEW DENIED.