Song He v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SONG HE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70489
Agency No. A209-218-427
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2022**
Honolulu, Hawaii
Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.
Petitioner Song He (“Petitioner”) seeks review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) adverse
credibility determination and denial of his application for asylum and withholding
* 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
FEB 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of removal. We review for substantial evidence, 8 U.S.C. § 1252(b)(4)(B), and we
deny the petition.
In support of its adverse credibility determination, the IJ identified several
falsehoods on a prior visa application to the United States, as well as a number of
inconsistencies between Petitioner’s testimony before the IJ, his sworn statement
submitted with his asylum application, and his testimony at the credible fear
interview. Petitioner does not argue that these discrepancies do not exist; rather he
claims that the BIA and IJ “overlooked his intelligence and memory problems” in
reaching their adverse credibility decisions.
However, the record reflects that both the IJ and BIA considered and
reasonably rejected this purported explanation for the inconsistencies. See Rizk v.
Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (IJ must consider but may reject an
applicant’s attempt to explain an inconsistency), overruled in part on other grounds
by Alam v. Garland, 11 F.4th 1133, 1135‒37 (9th Cir. 2021). The record here does
not compel a conclusion that Petitioner was credible, cf. Go v. Holder, 640 F.3d
1047, 1054 (9th Cir. 2011), and we therefore deny the petition.
We also deny Petitioner’s Motion for Judicial Notice [Dkt. Entry. No. 9] of a
“Report of Psychoeducational Evaluation.” This document is not part of the
administrative record, and we are limited to deciding the petition “only on the
administrative record on which the order of removal is based.” 8 U.S.C. §

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1252(b)(4)(A). “We cannot independently take judicial notice of a report that is not
a part of the record.” Aguilar-Osorio v. Garland, 991 F.3d 997, 1000 (9th Cir.
2021). The proper procedure would be for Petitioner to file a Motion to Reopen with
the BIA. 8 C.F.R. § 1003.2(c).
PETITION DENIED.

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