NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MING KANG, No. 16-73976
Petitioner, Agency No. A087-848-848
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2021**
San Francisco, California
Before: WARDLAW and BERZON, Circuit Judges, and PREGERSON,***
District Judge.
Ming Kang (“Petitioner”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
*
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 Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
denial of Petitioner’s asylum, withholding of removal, and Convention Against
Torture (“CAT”) petitions on adverse credibility grounds. We have jurisdiction
under 8 U.S.C. § 1252(a). For the reasons discussed below, we deny the petition
for review.
1. Petitioner contends that the BIA’s adverse credibility determination is not
supported by substantial evidence. Factual determinations are upheld “if supported
by reasonable, substantial and probative evidence on the record as a whole.”
Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1163 (9th Cir. 2013) (quoting Tamang
v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010)). To reverse an adverse credibility
finding, the court “must find that the evidence not only supports a contrary
conclusion, but compels it.” Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011)
(quoting INS v. Elias–Zacarias, 502 U.S. 478, 481 n.1 (1992)) (alteration and
emphases omitted). Credibility determinations must take into account the totality
of the circumstances and all relevant factors, and must be supported by “specific
and cogent reasons.” Shrestha v. Holder, 590 F.3d 1034, 1040, 1044 (9th Cir.
2010) (quoting Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009)).
The BIA identified inconsistencies between Petitioner’s live testimony and
his written statement, between Petitioner’s live testimony and his father’s letter,
and between Petitioner’s live testimony and the information Petitioner gave to the
Asylum Officer. The BIA noted inconsistencies in the number and nature of police
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beatings Petitioner allegedly suffered during his detention. Petitioner’s alleged
history of beatings by police was material to Petitioner’s asylum application. See
id. at 1046-47 (“Although inconsistencies no longer need to go to the heart of the
petitioner’s claim, when an inconsistency is at the heart of the claim it doubtless is
of great weight.”).
The BIA also noted discrepancies regarding the medical treatment Petitioner
allegedly received after his release from detention and regarding Petitioner’s living
situation at the time of his arrest. Petitioner testified that his father, after bailing
Petitioner out of jail, took him to a clinic to receive treatment. However,
Petitioner’s father stated in his supporting letter that he took Petitioner home after
bailing Petitioner out. Petitioner also testified that he received daily medical
treatment for about a week after his release. However, Petitioner’s written
declaration did not include any statements regarding medical treatment.
Petitioner next testified that he lived by himself at the time of his arrest, but
Petitioner told the Asylum Officer that he lived with a roommate at the time of his
arrest. Petitioner’s living situation was pertinent to Petitioner’s claim for asylum
because he told the Asylum Officer that he suspected that his roommate was the
person who reported him to the police.
The IJ provided Petitioner opportunities to explain the above
inconsistencies. See Rizk, 629 F.3d at 1088 (“[T]he IJ must give the petitioner the
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opportunity to provide an explanation of an apparent inconsistency.”). Upon
review of the record, we conclude that the BIA’s conclusion that Petitioner’s
explanations were unpersuasive was supported by substantial evidence.
The agency also determined that Petitioner’s demeanor negatively impacted
his credibility and provided specific examples of Petitioner’s unresponsiveness.
Ling Huang v. Holder, 744 F.3d 1149, 1153 (9th Cir. 2014) (“The need for
deference is particularly strong in the context of demeanor assessments.”).
Because the IJ’s demeanor assessment is given particularly strong deference, and
Petitioner has not presented evidence in the record sufficient to overcome this
deference, the BIA did not err in relying on a negative demeanor assessment in
deeming Petitioner not credible.
We conclude that the BIA’s adverse credibility determination is supported
by substantial evidence. Petitioner’s supporting evidence was insufficient on its
own to establish his claim for asylum. Absent credible testimony, and absent
sufficient supporting evidence, Petitioner failed to establish eligibility for asylum.
See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
2. The standard for withholding of removal is higher than that for asylum.
Canales-Vargas v. Gonzales, 441 F.3d 739, 746 (9th Cir. 2006). Because the
adverse credibility determination was fatal to Petitioner’s asylum claim, it also
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precluded a grant of withholding of removal. See Farah, 348 F.3d at 1156; Pedro-
Mateo v. I.N.S., 224 F.3d 1147, 1150 (9th Cir. 2000).
3. To obtain CAT relief, a petitioner need only show that it is more likely
than not that he will be tortured “by or at the instigation of[,] or with at the consent
or acquiescence of[,] a public official or other person acting in an official capacity”
if removed from the United States. Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th
Cir. 2003) (emphasis omitted) (quoting 8 C.F.R. § 208.18(a)(1)). An adverse
credibility determination is, therefore, not necessarily fatal to a CAT claim, which
can succeed on the basis of background documentary evidence alone. Shrestha,
590 F.3d at 1048. However, here, Petitioner has failed to identify evidence in the
record demonstrating that he would more likely than not be tortured by or at the
instigation of a public official if returned to China. Therefore, we conclude that
substantial evidence supports the agency’s denial of CAT relief.
Petition for review DENIED.
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