Lina Tan v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINA TAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-71241
Agency No. A205-768-434
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Lina Tan, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ order dismissing her appeal from an immigration
judge’s decision denying her application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). We have jurisdiction under
* 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
MAR 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings,
applying the standards governing adverse credibility determinations under the
REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We
deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination
based on Tan’s omission of a phone call with her employer from her asylum
application and declaration that, when raised for the first time in Tan’s testimony,
described a new aspect of Tan’s claimed fear of returning to China. See id. at 1048
(adverse credibility determination reasonable under “the totality of
circumstances”); see also Silva-Pereira v. Lynch, 827 F.3d 1176, 1185-86 (9th Cir.
2016) (prior omission supported adverse credibility determination where new
allegations presented a more compelling claim of persecution). Tan’s explanations
do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th
Cir. 2000). Substantial evidence also supports the agency’s finding that Tan did
not present documentary evidence that would otherwise establish her eligibility for
relief. See Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014) (petitioner’s
documentary evidence was insufficient to independently support claim in part
because declarants were not available for cross examination and the authenticity of
the documents relied on applicant’s discredited testimony). Thus, in the absence of

-- 2 of 3 --

3
credible testimony, in this case, Tan’s asylum and withholding of removal claims
fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Finally, substantial evidence supports the agency’s denial of Tan’s CAT
claim because it was based on the same evidence found not credible, and the
additional evidence in the record does not compel the conclusion that it is more
likely than not she would be tortured by or with the consent or acquiescence of the
government if returned to China. See Shrestha, 590 F.3d at 1048-49.
As stated in the court’s July 24, 2018 order, the temporary stay of removal
remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.

-- 3 of 3 --