Ying Li v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2020
• Docket: 18-71322
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YING LI, No. 18-71322

Petitioner, Agency No. A205-742-097

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

Respondent.

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

Submitted February 5, 2020** Honolulu, Hawaii

Before: FARRIS, McKEOWN, and BADE, Circuit Judges.

Ying Li (“Li”), a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing her appeal of an

immigration judge’s (“IJ”) denial of asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). Li argues that the IJ’s

* 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). adverse credibility determination, as affirmed by the BIA, is not supported by

substantial evidence. “We review ‘denials of asylum, withholding of removal, and

CAT relief for substantial evidence and will uphold a denial supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.’” Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting Garcia-

Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014)). We review adverse

credibility determinations for substantial evidence. Garcia v. Holder, 749 F.3d

785, 789 (9th Cir. 2014). We have jurisdiction under 8 U.S.C. § 1252, see Huang,

744 F.3d at 1152, and we deny the petition.

I.

Substantial evidence supports the agency’s adverse credibility

determination. “Under the REAL ID Act, which applies here, there is no

presumption that an applicant for relief is credible, and the IJ is authorized to base

an adverse credibility determination on the totality of the circumstances and all

relevant factors.” Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir. 2017)

(citations and internal quotation marks omitted). Although adverse credibility

determinations need not be based on inconsistencies that “go ‘to the heart of

[petitioner’s] claim,’” Shrestha v. Holder, 590 F.3d 1034, 1046 (9th Cir. 2010)

(quoting Malkandi v. Holder, 576 F.3d 906, 918 (9th Cir. 2009)), an inconsistency

supporting an adverse credibility determination “should not be a mere trivial error

2 such as a misspelling.” Id. at 1044 (citing Hassan v. Holder, 571 F.3d 631, 637

(7th Cir. 2009)).

Li argues that the IJ’s adverse credibility determination erroneously relied

on inconsistencies between her testimony and a hospital discharge summary

regarding the number of her pregnancies and her abortion history. Li testified she

had been pregnant twice. The first pregnancy resulted in a forced abortion in

China, and the other resulted in the premature birth of her daughter in the United

States. In contrast, the hospital discharge summary reported that Li had been

pregnant four times, which resulted in one preterm birth and three elective

abortions. Li claimed that she was eligible for asylum, withholding of removal,

and CAT relief because she was forced to have an abortion under China’s one-

child policy. Therefore, these inconsistencies between her testimony and the

hospital discharge summary were not trivial.

Furthermore, the BIA properly determined that the government’s inability to

explain how it obtained the discharge summary did not undermine its probative

value. Even though a document “lacks certain indicia of reliability,” an IJ’s use of

it to support an adverse credibility determination is not necessarily reversible error

“under [the court’s] ‘extremely deferential’ review.” Angov v. Lynch, 788 F.3d

893, 902 (9th Cir. 2015) (quoting Wang v. INS, 352 F.3d 1250, 1257 (9th Cir.

2003)). Li acknowledged that she was interviewed by hospital staff when her

3 daughter received medical care and that other information in the discharge

summary is correct. Thus, the discharge summary’s unknown provenance does not

undermine its probative value because it has other indicia of reliability. See Angov,

788 F.3d at 909. The IJ did not err by relying on the hospital discharge summary

to find that Li was not credible.

Li also argues that the IJ erred by relying on inconsistencies between her

testimony and information in her Chinese household register and by failing to give

her an opportunity to explain a discrepancy pertaining to whether the household

register was sent to Li or her attorney. Li is correct that any purported discrepancy

was too trivial to support an adverse credibility determination, see Shrestha, 590

F.3d at 1043–44, and that the agency failed to provide Li with a “reasonable

opportunity” to explain the perceived inconsistency regarding the provenance of

the household register, see Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.

1999). Nevertheless, the major inconsistency between Li’s testimony and the

information reported in the discharge summary constitutes substantial evidence in

support of the agency’s adverse credibility determination. Such an inconsistency

goes to the “heart of [Li’s] claim” for asylum and is consequently “of great

weight.” Shrestha, 590 F.3d at 1046–47. We affirm the agency’s adverse

credibility determination.

II.

4 Absent credible testimony, Li failed to establish eligibility for asylum or

withholding of removal. The IJ and BIA found that Li’s evidence was

insufficiently probative to support her claims. These findings are supported by

substantial evidence. See Garcia-Milian, 755 F.3d at 1031 (“The agency’s

‘findings of fact are conclusive’ unless ‘any reasonable adjudicator’ would be

compelled to conclude to the contrary.’”) (quoting Kamalyan v. Holder, 620 F.3d

1054, 1057 (9th Cir. 2010); 8 U.S.C. § 1252(b)(4)(B)). Therefore, the agency

properly denied Li’s petition for relief under asylum and withholding of removal.

III.

Li’s argument that she is entitled to relief under CAT is based solely on her

assertion that she “was forced to undergo an abortion, harm that [she] contends is

tantamount to torture.” Li’s claim to CAT relief relies on testimony that the

agency determined was not credible. See Jiang v. Holder, 754 F.3d 733, 740 (9th

Cir. 2014) (“Although an adverse credibility finding does not necessarily preclude

[CAT] relief, a claim for relief under CAT may still be rejected when the petitioner

fails to provide evidence beyond those statements that the IJ determined were not

credible.”). The remaining documentary evidence in the record is insufficient to

compel the conclusion that Li herself would likely be tortured if returned. See id.

(citing Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006)). Therefore,

Li’s claim to CAT protection was properly denied.

5 PETITION FOR REVIEW DENIED.