Yongri Bian v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2022
• Docket: 16-70546
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YONGRI BIAN, No. 16-70546

Petitioner, Agency No. A088-114-133

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

Respondent.

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

Submitted April 15, 2022** Pasadena, California

Before: CALLAHAN and VANDYKE, Circuit Judges, and GONZALEZ ROGERS,*** District Judge.

Yongri Bian (“Bian”), a native and citizen of the People’s Republic of

China, petitions for review of the Board of Immigration Appeals’ (the “BIA”)

* 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 Honorable Yvonne Gonzalez Rogers, United States District Judge for the Northern District of California, sitting by designation. decision affirming the Immigration Judge’s (“IJ”) adverse credibility determination

that resulted in the denial of his application for withholding of removal. We have

jurisdiction under 8 U.S.C. § 1252(a), and we deny Bian’s petition.1

Where, as here, the BIA adopts the IJ’s decision and also adds its own reasons,

the court reviews both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.

2005). We review the agency’s factual findings, including adverse credibility

determinations, for substantial evidence. Mukulumbutu v. Barr, 977 F.3d 924, 925

(9th Cir. 2020) (citing Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013)). “The

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

be compelled to conclude to the contrary.’” Silva-Pereira v. Lynch, 827 F.3d 1176,

1184 (9th Cir. 2016) (quoting 8 U.S.C. § 1252(b)(4)(B)).

1. Here, the BIA’s affirmance of the adverse credibility determination is

supported by substantial evidence. The BIA focused on two specific inconsistencies

identified by the IJ. First, Bian’s testimony regarding his escape to his aunt’s house

and his subsequent return to his home despite police surveillance was found to be

inconsistent with his claimed fear. Second, his testimony regarding the medical

treatment he sought following his detention was found to be inconsistent with the

severe beating he described. These inconsistencies, coupled with Bian’s failure to

1 Bian concedes that he does not challenge the denial of his application for asylum or Convention Against Torture (“CAT”) protection on appeal.

2 plausibly explain them, constitute substantial evidence supporting the adverse

credibility determination. See Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th

Cir. 2010) (explaining “[t]he IJ did not have to accept [petitioner]’s unpersuasive

explanations for the[] inconsistencies”); see also Zamanov v. Holder, 649 F.3d 969,

972–74 (9th Cir. 2011) (explaining that the agency is not compelled to accept

petitioner’s explanations for testimonial discrepancies). Bian also failed to submit

documentary evidence to corroborate his testimony. Bian has thus failed to meet his

burden to show that the record compels the conclusion that he testified truthfully.

See 8 U.S.C. § 1252(b)(4)(B). Because withholding requires credible testimony,

Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003), the BIA properly denied

Bian relief on this basis.

2. An IJ may require corroborating evidence unless the applicant cannot

reasonably obtain it. Shrestha v. Holder, 590 F.3d 1034, 1047 (9th Cir. 2010). Here,

the IJ concluded that Bian’s submitted documentary evidence was insufficient to

corroborate his testimony, given the numerous inconsistencies between the

documents and his testimony (including the permits for the restaurant and Bian’s

household register). Although Bian testified that some corroborating evidence

regarding his arrest and medical treatment was lost because his mother had passed

away in January 2009 and she was the person who safeguarded his records, that

explanation could not resolve the IJ’s concern regarding the critical inconsistencies

3 between his testimony and the documents that Bian did submit.

3. Finally, we need not reach Bian’s argument regarding the applicability

of Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), as Bian correctly concedes it is

premised on this court first finding that substantial evidence does not support the

adverse credibility determination, a conclusion we do not reach. Even if Ren did

apply, Bian had notice and numerous opportunities to provide corroborating

evidence to rehabilitate his testimony.

The petition for review is DENIED.