Wattana Kotchai; Phairat Phoonmaroeng v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WATTANA KOTCHAI; PHAIRAT
PHOONMAROENG,
Petitioners,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-71200
Agency Nos. A206-540-907
A206-540-908
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2019**
Honolulu, Hawaii
Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.
Petitioners Wattana Kotchai and Phairat Phoonmaroeng,1 natives and
citizens of Thailand, petition for review of the Board of Immigration Appeals’
* 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).
1 Phoonmaroeng is Kotchai’s husband and is included as a derivative
beneficiary of Kotchai’s asylum application.
FILED
OCT 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(BIA) order affirming the Immigration Judge’s (IJ) denial of Kotchai’s application
for asylum. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
The BIA’s adverse credibility determination is supported by substantial
evidence. Kotchai testified inconsistently as to whether her 2013 Facebook posts
critical of the Thai parliament were public or private. That inconsistent testimony
was “not . . . a mere trivial error such as a misspelling,” Shrestha v. Holder, 590
F.3d 1034, 1044 (9th Cir. 2010), but was directly related to the plausibility of
Kotchai’s claim that the Thai government saw and investigated her Facebook
posts. See id. at 1047 (“[W]hen an inconsistency is at the heart of the claim it
doubtless is of great weight.”). Kotchai failed to provide an explanation for her
inconsistent testimony. See id. at 1044 (“When an inconsistency is cited as a factor
supporting an adverse credibility determination, . . . the petitioner’s explanation for
the inconsistency, if any, should be considered in weighing credibility.”).
The BIA’s adverse credibility determination is also supported by its finding
that Kotchai inadequately explained why she was in the United States rather than
in Thailand. The IJ reasoned that Kotchai’s explanation—that she missed her
husband and thought that her repeated visits to the United States would extend her
visa expiration—suggested that Kotchai overstayed her visa for economic reasons,
thus contradicting her claim that she applied for asylum due to fear of persecution.
Kotchai’s contention that the IJ should have been satisfied with Kotchai’s

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explanation, fails to demonstrate an “extraordinary circumstance[]” that
“compel[s]” us to disagree with the IJ’s credibility determination. Id. at 1041; 8
U.S.C. § 1252(b)(4)(B).2
In the alternative, substantial evidence supports the BIA’s conclusion that
Kotchai did not demonstrate a well-founded fear of future persecution. Kotchai’s
2013 Facebook posts were critical of the parliament that was overthrown in 2014.
While evidence indicates that the current government disproportionately punishes
certain anti-government speech, there is no record evidence that the post-coup
government is targeting those who were critical of the pre-coup government. For
these reasons, the BIA did not err in concluding that Kotchai failed to demonstrate
that her fear of future persecution is “objectively reasonable.” Parada v. Sessions,
902 F.3d 901, 909 (9th Cir. 2018) (quoting Sael v. Ashcroft, 386 F.3d 922, 924 (9th
Cir. 2004)).
Petition DENIED.
2 We are skeptical of the BIA’s conclusion that Kotchai’s references to a
police officer as a “cousin,” “distant relative,” and “friend” were inconsistent given
the various ways in which family friends may be described in Thai culture. But the
BIA’s conclusion is adequately supported on other grounds. See Rizk v. Holder,
629 F.3d 1083, 1088–89 (9th Cir. 2011).

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