Chunkai Lan v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUNKAI LAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-805
Agency No.
A087-827-200
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 17, 2024**
Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
Chunkai Lan, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s (“IJ”) decision denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
* 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).
FILED
JAN 23 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings, applying the standards governing adverse credibility
determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,
1039‑40 (9th Cir. 2010). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination
based on demeanor, lack of responsiveness, and an omission. See id. at 1048
(adverse credibility finding reasonable under the totality of the circumstances); see
also Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021) (“[T]he IJ
is in the best position to consider a petitioner’s demeanor, candor, and
responsiveness.”). Lan’s explanations do not compel a contrary conclusion. See
Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). Substantial evidence also
supports the agency’s determination that Lan did not present documentary
evidence that would otherwise establish his eligibility for relief. See Garcia v.
Holder, 749 F.3d 785, 791 (9th Cir. 2014) (applicant’s documentary evidence was
insufficient to rehabilitate his testimony). Thus, in the absence of credible
testimony, in this case, Lan’s asylum and withholding of removal claims fail. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
We do not address Lan’s contentions as to the merits of his asylum and
withholding of removal claims because the BIA did not deny relief on these
grounds. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011)

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(“In reviewing the decision of the BIA, we consider only the grounds relied upon
by that agency.” (citation and internal quotation marks omitted)).
Substantial evidence also supports the agency’s denial of CAT protection
because Lan’s claim was based on the same testimony the agency found not
credible, and Lan does not point to any other evidence in the record that compels
the conclusion that it is more likely than not he would be tortured in China. See
Farah, 348 F.3d at 1157.
We do not consider the materials Lan references in his opening brief that are
not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th
Cir. 1996) (en banc).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.

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