Liting He v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LITING HE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-775
Agency No.
A200-266-221
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 3, 2024**
Pasadena, California
Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.
Liting He, a practicing Christian, is a native and citizen of China. She
petitions for review of a Board of Immigration Appeals’ (BIA) decision. The BIA
dismissed Petitioner’s appeal from an Immigration Judge’s decision denying
* 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
APR 5 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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applications for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.
See Pinto v. Holder, 648 F.3d 976, 986 (9th Cir. 2011) (BIA’s decision that denied
“asylum, withholding of removal, and protection under CAT . . . was a final order
of removal” under 8 U.S.C. § 1252). We review the agency’s legal conclusions de
novo and its factual findings for substantial evidence. See Davila v. Barr, 968 F.3d
1136, 1141 (9th Cir. 2020). Under the latter standard, the “administrative findings
of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We deny the petition.
1. Substantial evidence supports the adverse credibility determination. A
trier of fact may base an adverse credibility determination on the “totality of the
circumstances,” including “the inherent plausibility of the applicant’s or witness’s
account, the consistency between the applicant’s or witness’s [sworn] written and
oral statements . . . , and any inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
“[E]ven minor inconsistencies may have a legitimate impact” on credibility, Li v.
Garland, 13 F.4th 954, 961 (9th Cir. 2021), and we give special deference to an
immigration judge’s demeanor assessments, Ling Huang v. Holder, 744 F.3d 1149,
1153 (9th Cir. 2014). We can only reverse an adverse finding if Petitioner shows

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that “any reasonable adjudicator would be compelled to do so.” Aguilar Fermin v.
Barr, 958 F.3d 887, 892 (9th Cir. 2020) (internal punctuation and citation omitted).
Petitioner has not crossed that high bar.
The immigration judge found that Petitioner lacked credibility for three
independently sufficient reasons. First, Petitioner was inconsistent when she
testified. She testified that the church she attended in China both did and did not
keep attendance records. Other inconsistencies abound. Undated and unnotarized
letters from Petitioner’s mother arrived both from mainland China and from Taiwan,
even though Petitioner testified that her mother has never been to Taiwan. And
Petitioner’s documentary evidence related to her membership in a Los Angeles
church included information that contradicted Petitioner’s testimony.
Second, Petitioner’s testimony contained omitted facts that “directly relate to
incidents of harm that undergird her entire claim of past persecution.” Despite
providing a written declaration stating that she had been interrogated and beaten up
by the police, Petitioner testified at the hearing that, after she was arrested in China,
her only contact with the police was when they released her and that “nothing”
happened to her while in custody. When confronted with this discrepancy, she stated
that she had been “too nervous to recall” what the police had done. Substantial
evidence supports the immigration judge’s refusing to look past that material
omission because of Petitioner’s alleged nervousness. It strains credulity to argue

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that Petitioner was too nervous to remember being beaten in prison while “she was
able to provide specific details such as dates.”
Third, Petitioner’s demeanor was unconvincing. See Ling Huang, 744 F.3d
at 1153–54 (“The need for deference is particularly strong in the context of demeanor
assessments.”). At times she was nervous and quiet, but at other times she
remembered details with perfect specificity, such as particular dates and details
about the number of congregants at her church in China. The immigration judge
found that these “seemingly rehearsed” details “cast[] a dark shadow” on Petitioner’s
credibility.
The record supports each of these findings, and we decline Petitioner’s
invitation to reverse them.
2. Substantial evidence supports the decision to deny asylum and not to
withhold removal. As to asylum, because “substantial evidence supports the
Agency’s adverse credibility determination, [Petitioner] has failed to establish past
persecution” or a “well-founded fear of future persecution.” Lalayan v. Garland, 4
F.4th 822, 840 (9th Cir. 2021). And because asylum is a lower standard than the
withholding-of-removal standard, failure to establish eligibility for asylum is
necessarily failure to satisfy the withholding standard. Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).

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3. Petitioner’s CAT claim also fails. She had the burden of showing that
it was “more likely than not that . . . she would be tortured if removed to” China. 8
C.F.R. § 1208.16(c)(2). She has not carried that burden. Instead, in just a paragraph,
she makes passing references to the relevant standard without explaining why the IJ
erred. But once the adverse credibility finding discounts her testimony, her claim
boils down to a single line about the U.S. Department of State Country Condition
Report and International Religious Freedom Report. That is not enough. See
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (evidence of
generalized country conditions insufficient to show a particularized threat under
CAT).
4. Petitioner failed to exhaust before the BIA her claim that the evidence
she provided corroborated her testimony notwithstanding the adverse credibility
finding. She cannot overcome that failure by raising that issue here, particularly as
the government has addressed her failure to exhaust in its brief. Umana-Escobar v.
Garland, 69 F.4th 544, 550 (9th Cir. 2023) (exhaustion, though not jurisdictional, is
a mandatory claim-processing rule when the government raises it).
The petition for review is DENIED.

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