Hong Li v. Merrick Garland

                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


HONG LI,                                    No. 18-70943
                           Petitioner,
                                             Agency No.
                  v.
                                            A201-040-487
MERRICK B. GARLAND, Attorney
General,                                     OPINION
                      Respondent.

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

           Argued and Submitted October 21, 2020
                     Honolulu, Hawaii

                 Filed September 21, 2021

     Before: J. Clifford Wallace, Carlos T. Bea, and
            Mark J. Bennett, Circuit Judges.

                 Opinion by Judge Wallace
2                          LI V. GARLAND

                           SUMMARY *


                            Immigration

    Denying Hong Li’s petition for review of a decision of
the Board of Immigration Appeals, the panel held that
substantial evidence supported the denial of asylum and
related relief on adverse credibility grounds.

    Considering the totality of the circumstances, the panel
concluded that two of the Board’s four identified bases for
its adverse credibility determination were supported by
substantial evidence, and two were not. First, the panel
concluded that the transcript did not support the Board’s
determination that Li testified inconsistently regarding her
treatment while in jail. Second, the panel concluded that Li’s
omission regarding her husband’s employment was not a
proper basis for the adverse credibility determination, given
that the omission might be a collateral or ancillary omission
that, under the totality of the circumstances, had no tendency
to suggest Li fabricated her claim, the omitted information
concerned adverse consequences for a third party—Li’s
husband—and Li did not volunteer the information to bolster
her claim, but rather the immigration judge elicited Li’s brief
responses during cross-examination.

    The panel concluded that the Board’s final two identified
grounds were supported by substantial evidence. First,
observing that under the REAL ID Act credibility findings
no longer need to go to the heart of an applicant’s claim, the

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                      LI V. GARLAND                        3

panel concluded that the Board appropriately relied upon
Li’s submission of false information in her asylum
application regarding her arrest record to find her not
credible. The panel wrote that the Board was not compelled
to accept Li’s explanation for the discrepancy—that she was
reasonably mistaken about the difference between an arrest
and a conviction—given that the explanation was
implausible, and particularly because she was assisted by
counsel. Next, the panel concluded that under the totality of
the circumstances, Li’s submission of false information in
her visa application regarding her employment also
supported the Board’s adverse credibility determination.
The panel explained that while this factor alone might not
support an adverse credibility finding, it was an appropriate
factor to consider here, where Li made no attempt during her
hearing to explain why she needed to provide the false
information.


                        COUNSEL

Albert S. Chow (argued), Lin & Chow, Monterey Park,
California, for Petitioner.

Andrew B. Insenga (argued), Trial Attorney; Jonathan
Robbins, Senior Litigation Counsel; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
4                      LI V. GARLAND

                          OPINION

WALLACE, Circuit Judge:

    Petitioner Hong Li seeks review of the decision of the
Board of Immigration Appeals (Board), which affirmed the
Immigration Judge’s (IJ) denial of her applications for
asylum, withholding of removal, and relief under the
Convention Against Torture (CAT) on adverse credibility
grounds. We have jurisdiction pursuant to 

.
Reviewing the Board’s findings for substantial evidence,
Shrestha v. Holder, 

 (9th Cir. 2010), we
deny the petition for review.

                               I.

   Li is a native and citizen of the People’s Republic of
China. She entered the United States in July 2010 on a non-
immigrant business visa with permission to remain in the
country until January 2011. In February 2011, after Li’s visa
expired, the Department of Homeland Security served Li
with a Notice to Appear in immigration court, charging her
with removability. Li conceded she was removable and
requested asylum, withholding of removal, and CAT relief.

    In Li’s asylum application, which she signed as true
before the IJ while represented by counsel, she claimed that
she was persecuted because of her membership in a house
church that is not registered with the Chinese government.
In March 2010, when Li and other church members met for
a house church meeting, the police arrived and arrested Li
and the others for an illegal gathering. Li stated that a police
officer interrogated her, accused her of wanting to overthrow
the Chinese government, and slapped her twice and kicked
her.
                        LI V. GARLAND                          5

    Li first appeared before the IJ in 2011. After various
delays, the IJ heard Li’s testimony six years later in April
2017. At this hearing, the government informed the IJ that
it had discovered Li’s undisclosed 2013 arrest record for
prostitution in Washington.

     During the hearing, Li testified about her treatment in jail
in China, her husband’s employment and termination, her
asylum application, and her visa application. For example,
Li asserted on direct examination that “they did not allow me
to eat meals” for four days while she was in jail, which she
said resulted in a stomach disease.              During cross-
examination, the government asked about the denial of food,
and Li responded, “They gave me something, but I only ate
something the third day in the morning, a little bit of
porridge. The fellow prisoners in the cell, they did not allow
me to eat.” The government asked why Li said she was not
given food, and Li stated that “[t]hey did give me food, but
it’s the other two fellow prisoners, they did not let me eat.”
When the IJ asked why Li did not testify as such on direct
examination, Li answered, “[W]hat I meant was, the fellow
inmates did not let me eat, not that they did not give me
food,” and she explained that “[t]hat’s what I meant to say.
Maybe I did not express it well.”

    The IJ asked if Li’s husband had ever lost his job, and Li
answered that her husband had been fired from his job as a
teacher. The IJ asked why Li’s husband had lost his job, and
Li answered, “The school claims that he had collusion with
the—or contact with the evil religion, so the school
dismissed him.” The IJ asked what her husband now does
for work, and Li replied that he is a truck driver. When the
IJ asked Li why her husband’s letter of support did not
mention that he was fired because of Li’s religious activities,
6                       LI V. GARLAND

Li replied that she did not know what her husband wrote and
did not read the letter until it arrived in the mail from China.

    The IJ also questioned Li about her submission of false
information in her asylum application. For example, Li
answered “No” in response to the application’s question
“Have you or any member of your family included in the
application ever committed any crime and/or been arrested,
charged, convicted, or sentenced for any crimes in the
United States?” When the IJ asked Li why she did not
disclose the 2013 arrest, Li replied that the judge and her
attorney in the criminal proceedings told her that the charge
would be dismissed and that there would be no criminal
record, which she interpreted as meaning that she was not a
“convicted person” or a “criminal person.” The IJ
highlighted that the question was broader and encompassed
arrests as well as convictions, and Li repeated the same
explanation for her failure to disclose the arrest.

    Finally, Li answered questions about false information
in her visa application. In her visa application, Li stated that
she worked as a treasurer for a company that produces wine.
After being questioned by the IJ and the government, Li
conceded during cross-examination that the information she
provided in her visa application regarding her previous work
experience at the wine company and her role for the
company were false. Li did not assert that the false
information was necessary to escape persecution in China.

    The IJ denied Li’s application based on an adverse
credibility determination. The IJ cited numerous reasons for
the adverse credibility determination, including but not
limited to: the discrepancies relating to Li’s treatment in jail,
her husband’s termination, the false information she
provided in her visa application, and the false information
she provided in her asylum application. The Board affirmed
                        LI V. GARLAND                           7

the IJ’s adverse credibility determination and cited these
discrepancies for its decision.

    The Board also upheld the IJ’s determination that, even
if Li were credible, she did not establish her eligibility for
asylum on the merits of her claim because she did not show
that the harm she suffered in China rose to the level of past
persecution.

                               II.

    First, it bears calling attention to the pivotal effect of the
REAL ID Act on immigration proceedings and our review,
especially as some parties continue to cite pre-enactment
case law that the REAL ID Act made obsolete. Ultimately,
the REAL ID Act expanded the appropriate bases of an IJ’s
adverse credibility determination.

    For applications for asylum, withholding of removal, and
CAT relief made on or after May 11, 2005, the REAL ID
Act created the following new standards governing adverse
credibility determinations:

        Considering the totality of the circumstances,
        and all relevant factors, a trier of fact may
        base a credibility determination on the
        demeanor, candor, or responsiveness of the
        applicant or witness, the inherent plausibility
        of the applicant’s or witness’s account, the
        consistency between the applicant’s or
        witness’s written and oral statements . . . , the
        internal consistency of each such statement,
        the consistency of such statements with other
        evidence of record . . . , and any inaccuracies
        or falsehoods in such statements, without
        regard to whether an inconsistency,
8                     LI V. GARLAND

       inaccuracy, or falsehood goes to the heart of
       the applicant’s claim, or any other relevant
       factor.

Pub. L. No. 109–13, Div. B, §§ 101(a)(3), 101(c), 101(d),

, 303–04 (2005) (codified at 

(b)(1)(B)(iii), 1231(b)(3)(C),      1229a(c)(4)(C))
(emphasis added). On this point alone, the REAL ID Act is
a watershed statute.

    While we had held prior to the REAL ID Act that
inconsistencies forming the basis of an adverse credibility
determination should go to the heart of a petitioner’s claim,
“under the REAL ID Act credibility findings no longer need
to go ‘to the heart of the applicant’s claim.’” Malkandi v.
Holder, 

 (9th Cir. 2009), quoting 

(b)(1)(B)(iii). “The explicit statutory language and
purpose behind the statutory change totally demolish [the]
argument that inconsistencies must go to the heart of his
claim.” Shrestha, 

.

    This statutory change also has significant consequences
on our review of Board decisions to uphold IJ adverse
credibility determinations. Before and after the enactment
of the REAL ID Act, we reviewed Board decisions for
substantial evidence and were required to accept “[f]actual
findings [as] conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” Garcia v.
Holder, 

 (9th Cir. 2014), quoting 

(b)(4)(B). As inconsistencies that form the basis of
an adverse credibility determination no longer need to go to
the heart of a petitioner’s claim, we need not consider
whether an inconsistency identified by the IJ or Board is
central.
                        LI V. GARLAND                          9

    We have continued to clarify how, pursuant to the REAL
ID Act, other factors, such as omissions, can form the basis
of an adverse credibility determination. See Lai v. Holder,

 (9th Cir. 2014) (“In general, however,
omissions are less probative of credibility than
inconsistencies created by direct contradictions in evidence
and testimony.”); see also Iman v. Barr, 

, 1067
(9th Cir. 2020) (holding that while “[o]missions need not go
to the heart of a claim,” “[a] collateral or ancillary omission
that, under the totality of the circumstances, has no tendency
to suggest an applicant fabricated her or his claim is likewise
insufficient     to    support      an   adverse      credibility
determination”). In Iman, we held that a petitioner’s
omission was not a proper basis for the IJ’s adverse
credibility determination, in part because the omission did
not bolster his claim, 

 at 1068–69, citing Zamanov v.
Holder, 

 (9th Cir. 2011), and in part
because the petitioner’s testimony was not volunteered but
rather was elicited through the government’s cross-
examination, 

. Our decision in Iman clarifies the
extent to which omissions may form the basis of an adverse
credibility determination. Nevertheless, the plain text of the
REAL ID Act makes clear that inconsistencies need not go
to the heart of a petitioner’s claim, and our court continues
to hold that “[u]nder the REAL ID Act, even minor
inconsistencies that have a bearing on a petitioner’s veracity
may constitute the basis for an adverse credibility
determination.” Ren v. Holder, 

 (9th
Cir. 2011), citing Shrestha, 

.

    In the end, petitioners carry a substantial burden to
convince us to overturn a Board decision denying relief on
credibility grounds, particularly when the Board has adopted
multiple bases for its adverse credibility determination.
Although in numerous cases post-REAL ID Act, we had
10                     LI V. GARLAND

applied the single factor rule, which required us to uphold an
adverse credibility determination so long as even one basis
is supported by substantial evidence, see e.g., Lizhi Qiu v.
Barr, 

, 842 (9th Cir. 2019), we overruled those
cases en banc in Alam v. Garland, see No. 19-72744, 

, at *5 (9th Cir. Sept. 8, 2021) (en banc) (“To
the extent that our precedents employed the single factor rule
. . . , we overrule those cases.”). After Alam, “[t]here is no
bright-line rule under which some number of inconsistencies
requires sustaining or rejecting an adverse credibility
determination.” 

 Rather, “in assessing an adverse
credibility finding under the [REAL ID] Act, we must look
to the ‘totality of the circumstances[] and all relevant
factors.” 

 quoting 

(b)(1)(B)(iii).

                              III.

    With this clarification, we now review the
inconsistencies and omissions that formed the basis of the
Board’s decision. “When the [Board] conducts its own
review of the evidence and law rather than adopting the IJ’s
decision, our review is limited to the [Board’s] decision,
except to the extent that the IJ’s opinion is expressly
adopted.” Shrestha, 

 (citation and quotation
marks omitted). In adopting the IJ’s adverse credibility
determination, the Board expressly relied on four
inconsistencies or omissions relating to Li’s treatment in jail,
her husband’s termination, the false information provided in
her asylum application, and the false information provided
in her visa application. Even though the discrepancies
regarding Li’s treatment in jail and her husband’s
employment are not necessarily probative of Li’s lack of
veracity, her submission of false information in her asylum
and visa applications are inconsistencies sufficient to
support the adverse credibility determination.
                        LI V. GARLAND                         11

    First, the Board relied on the IJ’s finding that Li’s
testimony regarding her treatment in jail on cross-
examination was inconsistent with that on direct
examination. Although the IJ and Board identified a
discrepancy in Li’s responses, the transcript reveals no such
inconsistency. On direct examination, Li testified that
“they” did not allow her to eat, and on cross-examination,
she stated that while the prison guards gave her food to eat,
her fellow inmates did not allow her to eat that food. Upon
hearing her response, the government asked why Li said she
was not given any food. However, the transcript shows that
Li never said she was not given food. We understand that
Li’s use of pronouns with ambiguous antecedents might
have been misleading, but that itself does not produce an
inconsistency.

    Second, Li’s omission regarding her husband’s
employment was not a proper basis for the adverse
credibility determination. During the government’s cross-
examination, Li explained that her husband lost his job as a
teacher because of her religious activities. She could not
explain why her husband did not mention the termination in
his letter of support. The transcript suggests that this might
be a collateral or ancillary omission that, under the totality
of the circumstances, has no tendency to suggest Li
fabricated her claim. See Iman, 972 F.3d at 1067. The
omitted information concerned adverse consequences for a
third party, Li’s husband. See id. at 1068; see also Lai, 773
F.3d at 973–74 (holding that “initial omission of incidents
affecting only third parties [was] less probative of
credibility” because “asylum claims ordinarily are centered
around events and circumstances that the applicants have
experienced directly”). Moreover, Li did not volunteer the
information to bolster her claim, but rather the IJ elicited Li’s
brief responses during cross-examination. Compare Lai,
12                     LI V. GARLAND

 (finding it implausible an applicant would
seek to bolster a claim only through responses to government
questioning) with Silva-Pereira v. Lynch, 

 (9th Cir. 2016) (upholding adverse credibility
determination based on omitted information where newly
introduced information contained allegations crucial to
establishing the petitioner’s claim).           Li’s omitted
information regarding her husband’s termination is
insufficient to support an adverse credibility determination.

    We now turn to the first of the two remaining
discrepancies relied upon by the Board: Li’s submission of
false information in her asylum application regarding her
arrest record. “Under the REAL ID Act credibility findings
no longer need to go ‘to the heart of the applicant’s claim.’”
Malkandi, 

, quoting 

(b)(1)(B)(iii).     In her asylum application, Li
submitted false information that she had never been arrested
for any crime in the United States. Li argues that, because
the charge was dismissed, she felt that she was “not
convicted as a criminal,” and her failure to “understand the
difference between an arrest and a conviction [was]
reasonable.” However, she cites no authority for the
proposition that an IJ must accept a petitioner’s explanation
that the submission of false information was based on a
reasonable mistake when evaluating a petitioner’s
credibility. Moreover, it is significant that Li had counsel
when she signed her asylum application before the IJ,
representing that its contents were true, and such an
interpretation of the asylum application’s question about
prior arrests and convictions is implausible. Indeed, even if
Li and her counsel’s interpretation were reasonable, the IJ
and Board were not compelled to accept her explanation for
the discrepancy. Lianhua Jiang v. Holder, 

 (9th Cir. 2014) (holding that requiring the IJ to accept
                       LI V. GARLAND                        13

the petitioner’s alternative plausible interpretation would
amount to improper de novo review), overruled on other
grounds by Alam, 

. Particularly because
Li was assisted by counsel, the Board and IJ were not
required to accept Li’s explanation for the discrepancy, and
the record does not compel a contrary conclusion.

    We also highlight that Li cites Wang v. Ashcroft, 

, 1021–22 (9th Cir. 2003), a pre-REAL ID Act
opinion, for the proposition that an inconsistency must be
material to affect an asylum or withholding claim. However,
this is no longer the case under the REAL ID Act, and even
minor inconsistencies may have a legitimate impact on a
petitioner’s credibility. Shrestha, 

. Indeed,
in Shrestha, we stated that “[w]e do not intend to suggest that
under the totality of the circumstances each inconsistency
must be material in the sense of important to the petitioner’s
well-founded fear of persecution; such a requirement would
contradict the REAL ID Act’s plain text.” 

 at 1043 n.4.
Her brief’s reliance on pre-REAL ID Act case law was
misleading because it is no longer valid law. More
importantly, Li’s submission of false information in her
asylum application is a major inconsistency.

    Under the totality of circumstances, Li’s submission of
false information regarding her employment as treasurer for
a firm that produced wine in her visa application also
supports the Board’s adverse credibility determination.
While this factor alone might not support an adverse
credibility finding, see Singh v. Holder, 

(9th Cir. 2011) (explaining that false statements used to flee
persecution generally do not undermine credibility), it is an
appropriate factor to consider here, where Li made no
attempt during her hearing to explain why she needed to
provide the false information.
14                     LI V. GARLAND

    These two inconsistencies are both supported by
substantial evidence and are sufficient to support the adverse
credibility determination. We do not consider the Board’s
alternate holding that Li failed to show past persecution. The
record does not compel the conclusion that the adverse
credibility determination was erroneous. The petition for
review is DENIED.