Thi Thu Thao Nguyen v. Merrick Garland
19-72390
| 9th Cir. | Nov 1, 2021Background
- Nguyen, a Vietnamese national, applied for asylum, withholding of removal, and CAT protection based on fear of police violence arising from her participation in environmental protests after a toxic spill linked to a steel plant.
- The immigration judge (IJ) found Nguyen not credible, citing six credibility factors; the Board of Immigration Appeals (BIA) affirmed relying on four of those factors.
- Only one of the IJ’s factors is supported by substantial evidence: an inconsistency between Nguyen’s testimony that the steel plant continued to operate and pollute and documentary evidence showing the plant was not operating and the government had found the company liable for the spill.
- The Ninth Circuit held that under Alam v. Garland adverse-credibility findings must be reviewed in light of the “totality of the circumstances,” and remanded the asylum and withholding claims to the BIA for reconsideration on that basis.
- The BIA’s denial of CAT relief was supported by substantial evidence: even excluding the IJ’s adverse-credibility finding about past harm, the remaining record did not compel a finding that Nguyen would more likely than not be tortured by or with the consent of the Vietnamese government, and relocation within Vietnam was a viable avoidance option.
- Disposition: petition granted in part (remand on asylum/withholding), denied in part (CAT claim); each party bears its own costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of adverse-credibility finding | Nguyen: testimony and evidence show genuine protest activity and fear; IJ erred in discrediting her | Government/BIA: IJ identified multiple inconsistencies and omissions supporting disbelief | Substantial evidence supports only one cited inconsistency; remand required because adjudication must consider totality of circumstances under Alam |
| Eligibility for CAT protection | Nguyen: she faces torture by police for protest activity | Government/BIA: record does not show torture more likely than not; relocation is possible | Denial of CAT relief upheld as supported by substantial evidence |
Key Cases Cited
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (minor inconsistencies can weigh against an applicant’s credibility)
- Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (adverse-credibility determinations must be reviewed under the totality of the circumstances)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (standard for assessing likelihood of future torture/for withholding and CAT claims)