                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               JUN 12 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

YINGJIE LU,                                      No. 18-70425

              Petitioner,                        Agency No. A200-794-196

 v.
                                                 MEMORANDUM*
WILLIAM P. BARR, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted June 10, 2020**


Before: HAWKINS, GRABER, and McKEOWN, Circuit Judges.

      Petitioner Yingjie Lu, a native and citizen of China, seeks review of the

Board of Immigration Appeals’ ("BIA") final order affirming the immigration

judge’s ("IJ") denial of her requests for asylum, withholding of removal, and relief

under the Convention Against Torture ("CAT"). We deny the petition.


      *
             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. Substantial evidence supports the BIA’s determination that the IJ’s

adverse credibility finding was not clearly erroneous. See Shrestha v. Holder, 590

F.3d 1034, 1039–40 (9th Cir. 2010) (stating standard). Among other reasons, the

BIA relied on the inconsistency that the IJ identified between Petitioner’s

testimony and her household register. Petitioner testified that she gave birth to her

second daughter in the Dongling District where she was in hiding from family

planning officials for the duration of her pregnancy. Her household register,

however, lists Petitioner’s home district, Heping District, as her daughter’s

birthplace. Petitioner had notice and an opportunity to explain the inconsistency.

See Ren v. Holder, 648 F.3d 1079, 1092 n.14 (9th Cir. 2011) (noting that the

agency must advise a petitioner that her credibility is questionable and give her an

opportunity to explain before relying on an inconsistency to support an adverse

credibility determination). And the BIA and IJ properly considered Petitioner’s

explanation before making their decisions. Rizk v. Holder, 629 F.3d 1083, 1088

(9th Cir. 2011). Petitioner’s explanations that the two districts were consolidated

or that the birthplace was erroneously entered on the household register are not

supported by the record and, thus, do not compel a contrary conclusion. 8 U.S.C.

§ 1252(b)(4)(B).




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      An IJ may rest an adverse credibility determination on an inconsistency or

inaccuracy "without regard to whether" it "goes to the heart of the applicant’s

claim," so long as it is not an "utterly trivial inconsistency, such as a typographical

error." Id. § 1158(b)(1)(B)(iii); Shrestha, 590 F.3d at 1043 & n.4. The

discrepancy here is not trivial. As the BIA noted, the inconsistency contradicts

Petitioner’s claim that she went into hiding during her pregnancy because she

feared she would be forced to have another abortion. Because that inconsistency is

sufficient to provide substantial evidence for the adverse credibility finding, we

need not address the agency’s other reasons. See Rizk, 629 F.3d at 1088 (noting

that we must uphold an adverse credibility determination "so long as even one

basis is supported by substantial evidence"). Petitioner was the sole witness in

support of her application, so her asylum and withholding claims depended on her

credible testimony. The BIA’s denial of those claims is, thus, supported by

substantial evidence.

      2. Substantial evidence also supports the BIA’s determination that Petitioner

did not demonstrate eligibility for CAT relief. See Shrestha, 590 F.3d at 1048

(stating standard of review and CAT standard). Petitioner’s CAT claim was

premised "on the same statements . . . that the BIA determined to be not credible."

Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003). The BIA properly


                                           3
considered the record evidence independent of Petitioner’s discredited testimony

and concluded that it was not sufficient to establish that Petitioner was more likely

than not to be tortured if removed. Id. Thus, the adverse credibility finding also

supports denial of CAT relief. Shrestha, 590 F.3d at 1049.

      PETITION DENIED.




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