NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FANG DONG, No. 17-72585
Petitioner, Agency No. A209-390-911
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2022**
Portland, Oregon
Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,*** District
Judge.
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
*
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.
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
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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.1
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
1
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.
3
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.
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