Li v. Garland, No. 18-70943 (9th Cir. 2021)
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Li, a citizen of the People’s Republic of China, entered the U.S. in 2010 on a nonimmigrant business visa. After Li’s visa expired, DHS charged her with removability. Li sought asylum, withholding of removal, and Convention Against Torture relief, claiming 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 others met for a house church meeting, the police arrested them for an illegal gathering. Li stated that an officer interrogated her, accused her of wanting to overthrow the Chinese government, and slapped and kicked her.
At a 2017 hearing, the government informed the IJ that it had discovered Li’s undisclosed 2013 arrest record for prostitution in Washington. The IJ questioned Li about her submission of false information in her asylum application, then denied Li’s application based on an adverse credibility determination, citing the discrepancies relating to Li’s treatment in jail, her husband’s termination, and false information she provided in her visa application and in her asylum application. The Board affirmed, noting that, even if Li were credible, she did not establish her eligibility for asylum because she did not show that the harm she suffered in China rose to the level of past persecution. The Ninth Circuit denied a petition for review, finding the denials of relief supported by substantial evidence.
Court Description: 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 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.
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