NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT XINGGUI CHEN, No. 15-73832 Petitioner, Agency No. A088-294-711 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 19, 2020** Honolulu, Hawaii Before: WALLACE, BEA, and BENNETT, Circuit Judges. Xinggui Chen, a native and citizen of the People’s Republic of China, petitions for review of the order of the Board of Immigration Appeals (BIA) that denied his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. * 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). § 1252. We deny the petition. The BIA adopted the Immigration Judge’s (IJ) decision and added some of its own reasoning, so we review both decisions. Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). We review factual findings, including adverse credibility determinations, for substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We review constitutional challenges to immigration decisions de novo. Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir. 2009). Substantial evidence supports the determination that Chen was not credible. Chen has been through immigration hearings twice—once in 2010, and again in 2014, after successfully petitioning the BIA to reopen his case. Chen testified in his 2014 hearing that he had a physical altercation with family planning officials after his wife was forced to have an abortion. Yet he did not mention this incident in his 2010 hearing (or in his 2007 asylum application or 2008 asylum interview). This omission is not a mere detail. Rather, the physical altercation supports Chen’s claim of “other resistance” to China’s coercive population control policy. See Nai Yuan Jian v. Holder, 611 F.3d 1086, 1094–95 (9th Cir. 2010). With the altercation, Chen’s 2014 testimony provides a “much different—and more compelling—story of persecution than the initial application.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016) (quoting Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011)). Chen’s explanation is that his attorney at the time counseled him to omit the 2 incident from his account. Even if such an explanation were plausible, the record does not compel the conclusion that the IJ erred in refusing to believe Chen’s explanation, “in light of the importance of the omitted incident[] to his asylum claim.” Zamanov, 649 F.3d at 974. Chen’s omission of the physical altercation supports an adverse credibility finding. Id. Chen also submitted two letters from his wife that involved further omissions and inconsistencies. The first letter was dated 2009 and was submitted in support of Chen’s first hearing; the second letter was dated 2013 and was submitted in support of Chen’s motion ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals