UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MIN GAO, No. 19-73175 Petitioner, Agency No. A212-993-850 v. ORDER MERRICK B. GARLAND, Attorney General, Respondent. Before: TALLMAN, MURGUIA, and CHRISTEN, Circuit Judges. Pursuant to the en banc Opinion filed in Alam, the Court directs the Clerk to file the amended memorandum disposition submitted concurrently with this order. The parties may file a petition for rehearing and/or rehearing en banc, pursuant to Fed. R. App. P. 35. The mandate shall issue in due course. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MIN GAO, No. 19-73175 Petitioner, Agency No. A212-993-850 v. AMENDED MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 10, 2020** San Francisco, California Before: TALLMAN, MURGUIA, and CHRISTEN, Circuit Judges. Min Gao, a Chinese citizen, petitions for review of the Board of Immigration Appeals’s (“BIA”) dismissal of his appeal from the Immigration Judge’s (“IJ”) decision denying Gao’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under * 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). 8 U.S.C. § 1252 and deny the petition.1 Because the BIA conducted its own review of the evidence and did not expressly adopt the IJ’s decision, our review is limited to the BIA’s decision. Singh v. Lynch, 802 F.3d 972, 974 (9th Cir. 2015) (citing Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010)). We review the BIA’s factual findings, including credibility determinations, for substantial evidence. Id. at 974–75; 8 U.S.C. § 1252(b)(4)(B). Questions of law are reviewed de novo. Halim v. Holder, 590 F.3d 971, 975 (9th Cir. 2009). “[I]n assessing an adverse credibility finding under the [REAL ID] Act, we must look to the ‘totality of the circumstances[] and all relevant factors.’” Alam v. Garland, --- F. 4th ---, 2021 WL 4075331, at *5 (9th Cir. Sept. 8, 2021) (en banc) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The BIA affirmed the IJ’s adverse credibility determination based on inconsistencies between Gao’s testimony and other evidence in the record, particularly documentary evidence and the testimony of one of Gao’s witnesses. Each of the cited inconsistencies concerned Gao’s practice of his religion in China. When viewed together and under the totality of the circumstances, the inconsistencies were not utterly trivial and have some bearing on Gao’s veracity. See Shrestha, 590 F.3d at 1043–45. Although we might reach a different conclusion under a more generous de novo standard of 1 Gao’s motion for stay of removal (Doc. 1) is denied as moot. 1 review, the record in this case does not compel a finding …
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