You Peng Ni v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2023
• Docket: 20-70446
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YOU PENG NI, No. 20-70446

Petitioner, Agency No. A215-825-532

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

Respondent.

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

Argued and Submitted June 7, 2023 Honolulu, Hawaii

Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.

You Peng Ni, a native and citizen of China, seeks review of the Board of

Immigration Appeals’ (“BIA”) decision affirming the immigration judge’s (“IJ”)

denial of his application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). Because the BIA, citing Matter of Burbano,

20 I. & N. Dec. 872 (B.I.A. 1994), adopted the IJ’s decision and provided its own

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. additional analysis, we review both the BIA and IJ decisions. Aguilar Fermin v.

Barr, 958 F.3d 887, 891 (9th Cir. 2020). We have jurisdiction under 8 U.S.C. § 1252

and deny the petition.

We review the agency’s adverse credibility determination for substantial

evidence “based on the ‘totality of the circumstances and all relevant factors.’” Alam

v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc) (quoting 8 U.S.C.

§ 1158(b)(1)(B)(iii)). Our “only question . . . is whether any reasonable adjudicator

could have found as the agency did.” Garland v. Ming Dai, 141 S. Ct. 1669, 1678

(2021). And a “healthy measure of deference” is owed to the agency’s credibility

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

bears “a substantial burden” to show the BIA’s denial of relief on adverse credibility

grounds should be reversed. Li v. Garland, 13 F.4th 954, 959 (9th Cir. 2021).

In our view, the following factors suffice to find that substantial evidence

supports the agency’s adverse credibility determination:

First, the IJ determined that Ni had “not shown a willingness to be truthful

with U.S. authorities” because of omissions in the information Ni provided to the IJ

about the conditions of his release. This finding is supported by substantial

evidence. The IJ granted Ni’s bond on the condition that Ni must live with a

particular family member—his bond sponsor—at her home in Honolulu. Ni stayed

there for about a week before moving to another Hawaiian island. Several months

2 later at a hearing, the IJ told Ni that he must report any changes of address, but Ni

affirmed his address in Honolulu and said nothing about moving at the time. Ni did

not disclose his change of address to the IJ until six months later. Given Ni’s lack of

candor about following the conditions of his bond release, substantial evidence

supports the agency’s determination.

Second, Ni also submitted a declaration in support of his claim for relief from

an individual named “Sister He” that conflicts with Ni’s testimony. Sister He stated

that Ni was arrested and heavily beaten, that she was fortunate not to have attended

the service on that night, and that she seldom contacted Ni after his arrest. But Ni

said that Sister He had also been arrested for being Christian, and that after his arrest,

Sister He took him to multiple Christian services and helped connect him to a visa

agency to flee China. The IJ reasonably concluded that those inconsistencies support

an adverse credibility finding.

On the other hand, the IJ inappropriately questioned Ni’s religious faith when

assessing his credibility and fear of persecution. We consistently reject adverse

credibility determinations based on “ignorance of religious doctrine as evidence that

an individual is not a true believer.” Cosa v. Mukasey, 543 F.3d 1066, 1070 (9th

Cir. 2008) (quotation omitted); see also Li v. Holder, 629 F.3d 1154, 1157–58 (9th

Cir. 2011) (reversing adverse credibility finding based on petitioner’s ignorance of

Christian holidays and Bible); Ren v. Holder, 648 F.3d 1079, 1088 (9th Cir. 2011)

3 (reversing finding that petitioner was “not credible because his knowledge of

Christianity was at best less than basic”) (internal quotation marks removed)). The

IJ’s adverse credibility finding based on Ni’s lack of knowledge regarding baptism

and lack of desire to proselytize was legal error. Li, 629 F.3d at 1158. However,

this error did not affect the IJ’s assessment of other credibility factors.

Considering the totality of the circumstances, substantial evidence supports

the agency’s adverse credibility determination, and we need not address the

remaining grounds relied upon by the IJ. See Rodriguez-Ramirez v. Garland, 11

F.4th 1091, 1093–94 (9th Cir. 2021). The BIA agreed with the IJ that Ni’s

documentary evidence did not rehabilitate his testimony or otherwise satisfy his

burden of proof, and the record does not compel a contrary finding. Therefore,

substantial evidence supports the agency’s finding that Ni had not suffered past

persecution.

Additionally, although the IJ erroneously questioned Ni’s religious faith, she

considered the record evidence—including articles discussing persecution of

Christians in China as well as Ni’s testimony that he was able to travel within

China—and concluded that Ni did not have a well-founded fear of persecution

because the evidence did not show that “the police seek him for any reason.” The

record does not compel a contrary finding. Therefore, substantial evidence supports

the agency’s denial of asylum and withholding of removal. See Farah v. Ashcroft,

4 348 F.3d 1153, 1156 (9th Cir. 2003) (“A failure to satisfy the lower standard of proof

required to establish eligibility for asylum therefore necessarily results in a failure

to demonstrate eligibility for withholding of deportation.” (quoting Pedro-Mateo v.

INS, 224 F.3d 1147, 1150 (9th Cir. 2000)).

Finally, although an adverse credibility determination “is not necessarily a

death knell to CAT protection,” Mukulumbutu v. Barr, 977 F.3d 924, 928 (9th Cir.

2020) (quoting Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010)), the

independent record evidence does not “meet the high threshold of establishing that

it is more likely than not that [Ni] will be tortured by or with the consent or

acquiescence of a public official,” id.

PETITION DENIED.