Cai v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2024

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NENGHUI CAI; HE SHAO QIN; XU No. 23-186 CAO, Agency Nos.

A213-131-639 Petitioners, A213-131-636

A213-131-635 v.

MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 11, 2024** Honolulu, Hawaii

Before: CALLAHAN, HURWITZ, and H.A. THOMAS, Circuit Judges.

Nenghui Cai1 petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing an appeal from an order by an Immigration Judge (IJ)

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. denying asylum and withholding of removal on the ground that Cai’s testimony in support of these applications was not credible.2 We have jurisdiction under 8 U.S.C. § 1252. Reviewing for substantial evidence, Barseghyan v. Garland, 39 F.4th 1138, 1142 (9th Cir. 2022), we deny the petition for review.

1. The IJ found Cai’s testimony not credible because Cai had initially represented that he was arrested in 2017, but later stated that he was arrested in 2015. Cai argues that this inconsistency was too trivial to support an adverse credibility determination. But unlike errors that we have deemed too trivial to support an adverse credibility finding, such as a “typographical error or a minor inconsistency about a date lacking any nexus to the petitioner’s claim,” Kalulu v. Garland, 94 F.4th 1095, 1104 n.6 (9th Cir. 2024), the inconsistency in Cai’s testimony goes to the heart of his claims.

Cai’s arrest and subsequent treatment constitutes the primary basis for his asylum and withholding claims. And the difference in dates was significant—Cai originally told an asylum officer that he had been arrested only six months before a credible fear interview, when in fact he had been arrested two and a half years beforehand. Our decision in Ren v. Holder, on which Cai relies, is distinguishable, as the improper adverse credibility determination in that case rested on mischaracterizations of the petitioner’s testimony and minor inconsistencies. See 648 F.3d 1079, 1085–87 (9th Cir. 2011).

2. Cai also asserts that the IJ erred in failing to consider corroborating evidence in support of his claim that he had been arrested in 2015. To the contrary, the IJ did review this evidence and nonetheless found Cai not credible because of his inadequate explanation of his initial failure to remember the date. The record does not compel a different finding.3

DENIED.