FILED
NOT FOR PUBLICATION FEB 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MIN LIU, No. 09-70413
Petitioner, Agency No. A098-471-463
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2012
Pasadena, California
Before: D.W. NELSON, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.
Min Liu petitions for review of the decision by the Board of Immigration
Appeals (BIA) denying her application for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). The BIA affirmed the
immigration judge’s (IJ) denial of relief based upon adverse credibility grounds.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny Liu’s
petition for review.
The BIA affirmed the IJ’s adverse credibility finding because Liu (1) failed
to corroborate her claim and (2) gave inconsistent testimony regarding the gender
of her supervisor. Substantial evidence supports the BIA’s finding that Liu failed
to corroborate her claim of persecution.1
Under the REAL ID Act, even assuming Liu credible, the IJ can request
corroboration to support Liu’s application. See Aden v. Holder, 589 F.3d 1040,
1044 (9th Cir. 2009) (noting that 8 U.S.C. § 1158(b)(1)(B)(ii) “says that the
applicant’s credible testimony ‘may’ be sufficient without corroboration, but the
trier of fact may require corroboration (unless not reasonably obtainable) even for
‘otherwise credible testimony’”). This court “may not reverse the IJ’s and BIA’s
conclusion that [Liu] should have been able to obtain [medical records] unless ‘a
reasonable trier of fact is compelled to conclude that such corroborating evidence
is unavailable.’” Shrestha v. Holder, 590 F.3d 1034, 1047 (9th Cir. 2010) (quoting
8 U.S.C. § 1252(b)(4)). Here, during the initial merits hearing, the IJ stated to Liu
(and her counsel) that
1
Because we hold that substantial evidence supports the BIA’s conclusion
that Liu failed to produce corroborating evidence, we need not determine whether
Liu’s testimony was inconsistent.
2
I would expect medical records to be available and respondent has not
explained why those records have not been provided to corroborate
the timing and nature of the medical treatment that she received
because I think that that would corroborate her claims regarding that
particular detention, so I would expect either that she produce the
medical records or that she explain why they’re not available.
Seven months later (at the continued merits hearing), Liu failed to provide
the records. Initially, Liu testified that she could not afford to pay for the medical
receipt (evidencing she received treatment). In response, the IJ emphasized that
she previously requested medical records to corroborate Liu’s testimony (not a
receipt). Liu then testified that she could get the records, but that no one had ever
asked her for them (contrary to the express request of the IJ to Liu and her
counsel). Thus, substantial evidence supports the BIA’s conclusion that Liu failed
to provide easily available corroborating medical records to support the claim that
she was detained and, as a result of such detention, sought medical treatment.2 See
8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the applicant
should provide evidence that corroborates otherwise credible testimony, such
evidence must be provided unless the applicant does not have the evidence and
2
As with our recent decision in Oshodi v. Holder, we need not determine
whether the IJ is required to provide a petitioner notice that corroborating
documents are required, where as here, the IJ provided Liu notice and an
opportunity to explain why she did not have the requested documents. ___ F.3d
___, 2012 WL 232997, at *4 (9th Cir. Jan. 26, 2012).
3
cannot reasonably obtain the evidence.” (emphasis added)); see also Ren v. Holder,
648 F.3d 1079, 1094 (9th Cir. 2011). In the absence of corroborating evidence,
Liu’s asylum and withholding of removal claims fail. See Aden v. Holder, 589
F.3d at 1045; see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Because Liu’s CAT claim is based, in part, on the same testimony the BIA
found not credible, and she points to no other arguments showing it is more likely
than not she will be tortured if returned to China, her CAT claim also fails. See
Farah, 348 F.3d at 1156-57. Further, substantial evidence also supports the BIA’s
denial of CAT relief because Liu failed to demonstrate that it was more likely than
not she would be singled out for torture based upon her illegal departure. See
Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir. 2009).
PETITION FOR REVIEW DENIED.
4