Opinion
17-72585
06-30-2022
FANG DONG, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted June 8, 2022 [**] Portland, Oregon
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A209-390-911
Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON, [***] District Judge.
MEMORANDUM [*]
Fang Dong petitions for review of the Board of Immigration Appeals' (BIA) order dismissing her appeal of the Immigration Judge's (IJ) denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Dong, a native and citizen of China, challenges the adverse credibility determination made by the IJ and upheld by the BIA. She filed her application after 2005, and therefore the REAL ID Act applies. See REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (May 11, 2005).
Where the BIA "conduct[s] its own review of the evidence and law rather than simply adopting the [IJ]'s decision, . . . our review 'is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted.'" Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). We review "factual findings, including adverse credibility determinations, for substantial evidence." Mairena v. Barr, 917 F.3d 1119, 1123 (9th Cir. 2019). "Under the substantial evidence standard, 'administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
1.
In finding no clear error in the IJ's adverse credibility determination, the BIA cited with approval several inconsistencies noted by the IJ: discrepancies between what Dong told the asylum officer and what she testified before the IJ regarding the manner in which Chinese authorities notified her that she was required to pay a fine; Dong's changed explanation regarding to whom her husband spoke in order to get her released from police custody; and Dong's contradictory hearing testimony about whether Chinese authorities are aware that she left China and is now in the United States. The record does not "compel" a contrary credibility determination, see 8 U.S.C. § 1252(b)(4)(B), and therefore substantial evidence supports the agency's adverse credibility determination. We accordingly deny the petition for review on Dong's claims for asylum and withholding of removal.
The record includes documentary evidence related to Dong's claims, but Dong does not argue either that the agency erred by not considering it, see Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010), or that it establishes eligibility for asylum despite the adverse credibility determination, see Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir. 2000). Consequently, Dong has waived those arguments.
2.
"An adverse credibility determination does not, by itself, necessarily defeat a CAT claim ...." Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014). Here, however, Dong waived review of her CAT claim in this Court by not presenting any argument in her brief regarding that claim. See, e.g., Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th Cir. 2013) ("Because Cui does not address withholding or CAT relief in his brief, he waived any objections to the denial of these requests."); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) ("[A]n issue referred to in the appellant's statement of the case but not discussed in the body of the opening brief is deemed waived."). And even if Dong had not waived the CAT claim, the record evidence does not "compel[] the conclusion" that Dong would more likely than not be tortured if she returned to China. Shrestha v. Holder, 590 F.3d 1034, 1048-49 (9th Cir. 2010).
PETITION DENIED.
[*] 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 John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation.