13 F.4th 954
9th Cir.2021Background
- Hong Li, a Chinese national, entered the U.S. on a business visa in July 2010, overstayed, and conceded removability; she applied for asylum, withholding, and CAT relief based on persecution for participating in an unregistered house church.
- Li alleged arrest and mistreatment by Chinese police in March 2010 (slapping, kicking, jail conditions); her hearing was delayed and held in April 2017.
- The government discovered Li failed to disclose a 2013 U.S. arrest for prostitution; her asylum application answered "No" to any U.S. arrests/ convictions.
- At the merits hearing Li admitted false information in her visa application about prior employment and gave testimony the IJ characterized as inconsistent (jail food, husband’s job loss, explanation for nondisclosure).
- The IJ denied relief on adverse credibility grounds; the Board affirmed, relying on discrepancies and false statements; the Ninth Circuit reviewed for substantial evidence and denied the petition.
Issues
| Issue | Li's Argument | Garland's Argument | Held |
|---|---|---|---|
| Whether Board’s adverse credibility finding was supported by substantial evidence under the REAL ID Act | Li argued inconsistencies were minor or explainable and some relied on pre-REAL ID law requiring materiality | Government argued multiple inconsistencies/falsehoods supported an adverse credibility finding under REAL ID’s totality standard | Court upheld Board: substantial evidence supports adverse credibility based on false statements in applications and totality of circumstances |
| Whether omission about husband’s job loss warranted adverse credibility | Li argued the omission was collateral, about a third party, and elicited on cross-examination | Government argued omission suggested fabrication or unreliability | Court held omission about husband was collateral/ancillary and insufficient to support adverse credibility |
| Whether failing to disclose a 2013 U.S. arrest in her asylum application was excusable or reasonable | Li said charge was dismissed and she (and counsel) reasonably believed no record/that question meant convictions only | Government said the question encompassed arrests and nondisclosure was a falsehood relevant to veracity | Court held nondisclosure was a significant inconsistency the IJ/Board could reject; substantial evidence supports adverse credibility |
| Whether false statements in visa application undermined credibility | Li did not offer an explanation for the false employment claim on the visa | Government relied on the false visa statement as an indicium of bad faith/unreliability | Court held the false visa statements were a proper credibility factor and, together with the asylum nondisclosure, supported the adverse credibility finding |
Key Cases Cited
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (REAL ID Act credibility standard; totality of circumstances; inconsistencies need not go to the heart)
- Malkandi v. Holder, 576 F.3d 906 (9th Cir. 2009) (inconsistencies need not go to the heart post-REAL ID)
- Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) (even minor inconsistencies can bear on credibility under REAL ID)
- Lai v. Holder, 773 F.3d 966 (9th Cir. 2014) (omissions generally less probative than direct contradictions)
- Iman v. Barr, 972 F.3d 1058 (9th Cir. 2020) (collateral/ancillary omissions that do not suggest fabrication are insufficient to support adverse credibility)
- Lianhua Jiang v. Holder, 754 F.3d 733 (9th Cir. 2014) (court not required to accept alternative plausible explanations for inconsistencies)
- Wang v. Ashcroft, 341 F.3d 1015 (9th Cir. 2003) (pre-REAL ID materiality focus; limited application after REAL ID)
- Singh v. Holder, 638 F.3d 1264 (9th Cir. 2011) (false statements made to flee persecution ordinarily do not automatically undermine credibility)