Ying Qu v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 2, 2021
• Docket: 15-72811
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED DEC 2 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YING QU, No. 15-72811

Petitioner, Agency No. A201-201-315

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 22, 2021** Pasadena, California

Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.

Petitioner Ying Qu argues that the BIA erred in affirming the IJ’s adverse

credibility finding. Because substantial evidence supports the BIA’s decision, see

* 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). Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016), Qu’s petition is

denied.

When an adverse credibility determination is supported in part by lack of

corroboration, we “undertake a two-step process.” Bhattarai v. Lynch, 835 F.3d

1037, 1043 (9th Cir. 2016). “First, we separate out the non-corroboration grounds

for the adverse credibility determination and evaluate whether the IJ and BIA’s

determination is supported by substantial evidence.” Id. If the determination is

supported by substantial evidence, we affirm. Id. But if it is not, and “only issues

regarding lack of corroboration remain, we next ask whether the IJ satisfied Ren’s

notice requirement.” Id. If the IJ did not satisfy that requirement, we remand. Id.

at 1043–44.

Qu first challenges the IJ’s demeanor finding. In particular, she challenges

the BIA’s upholding of the IJ’s determination that she was evasive and

nonresponsive. However, the record does not compel a contrary conclusion.

Villalobos Sura v. Garland, 8 F.4th 1161, 1167 (9th Cir. 2021). When Qu was

asked why she did not attend school in the United States after getting a student visa

for that purpose and having paid tuition already, she responded that she did not

leave China to go to school and she could not afford it. This was after Qu had

testified that she had wanted to continue attending school in China but could not

afford to. In essence, Qu was asked to square one part of her testimony with another part, but instead she just repeated what she had already said. While one

might charitably consider her testimony responsive, we cannot substitute our

judgement for that of the BIA’s. Aden v. Holder, 589 F.3d 1040, 1046 (9th Cir.

2009).

The BIA additionally relied on inconsistencies within Qu’s testimony and

between her testimony and her written application. Qu asserts that she was not

given an opportunity to explain the inconsistencies between her testimony and her

written asylum statement concerning the principal instance of past persecution. Qu

is incorrect. Once the IJ made the adverse credibility determination, Qu was put

on notice that she must explain all inconsistencies to the BIA. Pal v. INS, 204 F.3d

935, 939 (9th Cir. 2000). Qu, in her brief to the BIA, attempted to downplay her

inconsistencies by attacking them as minor in nature. However, inconsistencies

concerning her principal instance of past persecution are hardly minor in nature.

See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011).

As to the inconsistencies within her testimony, Qu asserts that she provided

plausible explanations. Even if the BIA did err in its analysis of some

inconsistencies, considering the totality of the circumstances, see Alam v. Garland,

11 F.4th 1133, 1135 (9th Cir. 2021), the record does not compel overturning the

agency’s adverse credibility determination. Given the agency’s demeanor finding, Qu’s failure to produce corroborative

evidence in her possession, and the inconsistencies between Qu’s written

application and oral testimony, we find that the BIA’s determination is supported

by substantial evidence. Because these non-corroboration grounds are substantial

evidence supporting the BIA’s determination, we need not reach the corroboration

grounds. The petition for review is DENIED.