Ming Kang v. Merrick Garland
16-73976
| 9th Cir. | Jul 1, 2021Background
- Petitioner Ming Kang sought asylum, withholding of removal, and CAT protection after claiming he was detained and beaten by police in China and received post-release medical treatment.
- The Immigration Judge (IJ) denied relief based on an adverse credibility finding; the Board of Immigration Appeals (BIA) affirmed and Kang petitioned for review in the Ninth Circuit.
- The agency identified multiple inconsistencies: between Kang’s live testimony and his written declaration; between his testimony and his father’s letter about where he went after release; between his testimony and the asylum officer interview about his living situation; and about the number/nature of beatings and medical treatment.
- Kang was given opportunities to explain discrepancies, but the IJ and BIA found his explanations unpersuasive and also cited negative demeanor and unresponsiveness during testimony.
- The BIA concluded that without credible testimony or sufficient corroboration Kang failed to meet the asylum standard; that adverse credibility also precluded withholding of removal; and that Kang failed to show it was more likely than not he would be tortured (CAT), relying on lack of supporting evidence.
Issues
| Issue | Plaintiff's Argument (Kang) | Defendant's Argument (BIA/Gov't) | Held |
|---|---|---|---|
| Whether the BIA’s adverse credibility determination is supported by substantial evidence | Kang: Credibility finding is unsupported; record evidence and explanations compel a contrary conclusion | BIA: Specific inconsistencies, lack of corroboration, and negative demeanor justify adverse credibility | Upheld — substantial evidence supports adverse credibility finding |
| Whether adverse credibility precludes asylum eligibility | Kang: Even with credibility doubts, supporting evidence could establish asylum | BIA: Corroboration was insufficient; credible testimony is required to meet asylum showing | Upheld — without credibility or sufficient corroboration, asylum denied |
| Whether adverse credibility precludes withholding of removal | Kang: Withholding requires a higher standard but can survive credibility rulings | BIA: Higher standard and adverse credibility defeat withholding claim | Upheld — adverse credibility fatal to withholding claim |
| Whether Kang met the CAT standard despite adverse credibility | Kang: CAT claim can rest on background evidence even if testimony is discredited | BIA: Record lacks evidence showing more-likely-than-not risk of torture by/state actors | Upheld — substantial evidence supports denial of CAT relief |
Key Cases Cited
- Mendoza-Alvarez v. Holder, 714 F.3d 1161 (9th Cir.) (standard for review of factual findings)
- Tamang v. Holder, 598 F.3d 1083 (9th Cir.) (substantial-evidence review of credibility)
- Rizk v. Holder, 629 F.3d 1083 (9th Cir.) (reversal requires evidence that compels contrary conclusion)
- INS v. Elias–Zacarias, 502 U.S. 478 (1992) (standard on withholding/asylum factual review)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir.) (totality of circumstances and CAT can rely on background evidence)
- Malkandi v. Holder, 576 F.3d 906 (9th Cir.) (requirement for specific and cogent reasons for credibility findings)
- Ling Huang v. Holder, 744 F.3d 1149 (9th Cir.) (deference to demeanor assessments)
- Farah v. Ashcroft, 348 F.3d 1153 (9th Cir.) (credibility necessary for asylum; effect on withholding)
- Canales-Vargas v. Gonzales, 441 F.3d 739 (9th Cir.) (withholding standard higher than asylum)
- Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir.) (CAT standard: more likely than not torture by or with consent/acquiescence of officials)