PHAN v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-16No. No. 19-70739

Summary · law.co

Holding. The petition for review is denied, and the Board of Immigration Appeals' affirmance of the adverse credibility finding and denial of asylum, withholding of removal, and Convention Against Torture relief is affirmed.

Phan sought review of the Board of Immigration Appeals' decision upholding an immigration judge's finding that his testimony lacked credibility and denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture. The immigration judge based the adverse credibility finding on multiple factors: Phan's implausible inability to recall which European countries he traveled through despite his college education, evasive responses during questioning, his failure to mention his parents' profession as fisherfolk in his asylum application despite the relevance of that detail to his claims, and his observed flat emotional affect inconsistent with someone who experienced torture. Phan argued emotional numbing from post-traumatic stress disorder could explain his demeanor, but provided no medical evidence of such a diagnosis. The court found that while no single factor alone might warrant dismissal, the totality of circumstances supported the credibility determination and that Phan failed to meet his burden of proving the evidence compelled a contrary conclusion.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Standard of review for adverse credibility findings in immigration proceedings
Whether an applicant's failure to remember details of travel route undermines credibility despite educational background
Materiality of omissions in asylum applications when details relate to core claims
Permissibility of demeanor evidence in credibility determinations and deference to immigration judges' observations
Sufficiency of country conditions evidence to establish Convention Against Torture relief when credibility is impeached

Procedural posture

Phan petitioned for review of the Board of Immigration Appeals' decision affirming the immigration judge's adverse credibility finding and denial of relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Trung Van Phan (Phan) petitions for review of the decision of the Board of Immigration Appeals (BIA). The BIA affirmed the Immigration Judges (IJs) adverse credibility finding as to Phans asylum and withholding claims and affirmed the IJs decision to deny relief pursuant to the Convention Against Torture (CAT). Because the parties are familiar with the facts, we do not recount them here, except as necessary to provide context to our ruling. We DENY the petition for review.

1. An IJ must “[c]onsider[ ] the totality of the circumstances[ ] and all relevant factors” in determining an applicants credibility. 8 U.S.C. § 1158(b)(1)(B)(iii). “We review the IJ and BIAs adverse credibility finding for substantial evidence.” Solo-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006) (citation and internal quotation marks omitted). We must “uphold the BIAs findings unless the evidence compels a contrary result.” Jie Cui v. Holder, 712 F.3d 1332, 1336 (9th Cir. 2013).

The IJ and BIA relied on a number of factors in determining that Phan was not credible. For example, the BIA affirmed the IJs ruling that Phans inability to “remember which European countries he traveled through in order to reach the United States ․ was implausible, especially considering that [Phan] has graduated from a four-year college.” “Although ‘speculation and conjecture’ alone cannot sustain an adverse credibility finding, an IJ must be allowed to exercise common sense in rejecting a petitioners testimony even if the IJ cannot point to specific, contrary evidence in the record to refute it.” Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005). We agree that the IJ could exercise his common sense and decide that Phans inability to remember a single country through which he traveled undermined his testimony.

Additionally, Phans testimony was evasive at times. Phan did not provide a direct answer to the IJs question: “[W]hen was the last time the [Vietnamese] police contacted your parents?” Such evasive testimony can form the basis for an adverse credibility finding. See Bingxu Jin v. Holder, 748 F.3d 959, 962–65 (9th Cir. 2014).

Phan also omitted his parents’ profession as “fisherfolk” from his asylum application. Because Phans asylum and withholding claims relate to protests against an environmental disaster, which affected the local fishing industry, this omission was material to his application as a whole. While “omissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony,” we have “recognized that an omission may form the basis for an adverse credibility finding,” at least in part. Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014).

Finally, the BIA highlighted the IJs finding pertaining to Phans demeanor. The IJ “observed that [Phans flat] emotional affect seemed inconsistent with that of a torture victim.” Although Phan argues that “emotional numbing is a common coping mechanism for individuals with” post-traumatic stress disorder (PTSD), he cites nothing in the record to show that he has been diagnosed with PTSD. We give special deference to an IJs demeanor findings “because IJs are in the best position to assess demeanor and other credibility cues that we cannot readily access on review.” Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010)

Although no single factor in this case standing alone would necessarily result in our affirmance of the BIA and IJ, when viewing “the totality of the circumstances,” 8 U.S.C. § 1158(b)(1)(B)(iii), Phan has not met his heavy burden in showing that “the evidence compels a contrary result,” Jie Cui, 712 F.3d at 1336. Therefore, we affirm the adverse credibility finding and the denial of Phans applications for asylum and withholding of removal. See Mukulumbutu v. Barr, 977 F.3d 924, 927 (9th Cir. 2020).

2. “An adverse credibility determination is not necessarily a death knell to CAT protection.” Shrestha, 590 F.3d at 1048. However, when a CAT claim is based on the same allegations for which the IJ made an adverse credibility finding, that adverse credibility finding is especially probative for the CAT claim. See Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017). In such an instance, the petitioner must rely almost exclusively on evidence of country conditions. See 8 C.F.R. § 1208.16(c)(3).

Phans other evidence for CAT relief is largely drawn from a 2016 report from the Department of State, which reviews harassment and abuse in the Vietnamese criminal justice system. That report states that some political prisoners suffer “physical abuse” in Vietnamese prisons, but does not detail abuse in Vietnamese prison for those who were arrested for protesting the 2016 environmental disaster, like Phan. Thus, the State Department report “is insufficient to compel the conclusion that [Phan] would be tortured if returned.” Lianhua Jiang v. Holder, 754 F.3d 733, 740 (9th Cir. 2014); see also 8 C.F.R. § 1208.16(c)(2). Therefore, we also affirm the BIA with regard to Phans CAT claim.

DENIED.