Yu Chen v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 4, 2022
• Docket: 16-71527
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YU CHEN, No. 16-71527

Petitioner, Agency No. A087-831-829 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted August 1, 2022** Pasadena, California

Before: SILER,*** THOMAS, and CALLAHAN, Circuit Judges.

Yu Chen (“Chen”), a native and citizen of the People’s Republic of China

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

* 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 Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 removal order. Our jurisdiction is governed by 8 U.S.C. § 1252. We deny the

petition because the BIA correctly found that the documentary evidence presented

by Chen was insufficient to independently satisfy her burden of proof following an

adverse credibility determination by the Immigration Judge (“IJ”). See Plancarte

Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022) (quoting Davila v. Barr,

968 F.3d 1136, 1141 (9th Cir. 2020)). Additionally, Chen was correctly denied

protection under the Convention Against Torture (“CAT”) because she did not

establish that she is more likely than not to be tortured upon her return to China. Id.

at 834.

1. Chen claims she is entitled to asylum and withholding of removal

because she allegedly underwent a forced abortion in 1998 after becoming

pregnant out of wedlock in violation of China’s family planning policies. To

support her petition Chen submitted written testimony, provided verbal testimony,

and filed several supplemental documents. Chen was found not to be credible, and

her documentary evidence was insufficient to overcome her lack of credibility.

Adverse credibility findings are reviewed for substantial evidence. Salaam v.

INS, 229 F.3d 1234, 1238 (9th Cir. 2000). “To prevail under the substantial

evidence standard, the petitioner ‘must show that the evidence not only supports,

but compels the conclusion that these findings and decisions are erroneous.’”

Plancarte, 23 F.4th at 831 (quoting Davila, 968 F.3d at 1141). In assessing an

2 adverse credibility finding under the REAL ID Act, the court “must look to the

‘totality of the circumstances[] and all relevant factors.’” Alam v. Garland, 11

F.4th 1133, 1137 (9th Cir. 2021) (en banc) (alteration in original) (quoting 8

U.S.C. § 1158(b)(1)(B)(iii)).

The IJ found Chen’s demeanor and responsiveness during her testimony

lacked believability, noting a “stark contrast” between Chen’s remarks mirroring

her written statement and those covering subject matter outside of her written

statement. Chen gave a detailed account of the alleged forced abortion, but when

asked to account for her living and employment situation in the years afterwards,

from 1998 until 2006, Chen was vague and, at times, not directly responsive.

Moreover, the IJ observed Chen shift from giving detailed testimony to opaque

testimony once that testimony ventured beyond her written statement. It was

reasonable for the IJ to conclude from this contrast that Chen memorized her

written statement but could not articulate any detail outside of that statement. See

Ling Huang v. Holder, 744 F.3d 1149, 1155 (9th Cir. 2014) (an adverse credibility

determination can be sustained when an IJ finds a claim, otherwise lacking detail,

could have been easily memorized). The IJ also noted several inconsistencies in

Chen’s verbal testimony when compared to other evidence in the record. “[E]ven

minor inconsistencies” may have a “legitimate impact” on the overall credibility of

a petitioner’s testimony. Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010).

3 Under a totality of the circumstances analysis, Chen’s demeanor, vagueness,

and inconsistent testimony fatally undermined her credibility, and she did not

supply documentary evidence sufficient to overcome the adverse credibility

finding. See Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). Thus,

denial of Chen’s requests for asylum and withholding of removal were supported

by substantial evidence.

2. Next, Chen argues the BIA failed to conduct a proper analysis of

whether she is eligible for CAT relief. A petitioner seeking CAT relief must

establish: (1) it is more likely than not she will suffer harm severe enough to

constitute torture; and (2) the torture would occur at the hands of a government

official, or with the acquiescence of a government official. 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1), (2). Further, a petitioner must demonstrate that

she faces a particularized threat of torture, not a threat of torture in the abstract nor

merely a showing that torture occurs in the country of removal. Lalayan v.

Garland, 4 F.4th 822, 840 (9th Cir. 2021). Review of a denial of CAT protection

follows the deferential substantial evidence standard. Id. Chen does not meet her

burden for CAT relief.

Although an adverse credibility determination does not necessarily defeat

CAT eligibility such a determination requires the court to find that the

documentary evidence alone compels the conclusion that the petitioner is more

4 likely than not to be tortured. Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th

Cir. 2006). Chen submitted country reports concerning generalized torture in

China, but she does not demonstrate a “particularized threat” of torture as required.

See Lalayan, 4 F.4th at 822. Chen has not demonstrated that if she is removed to

China, the Chinese government will more likely than not torture her. Therefore,

she is not eligible for CAT relief.

The petition for review is DENIED.