                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            AUG 07 2015
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


ZHUEN LI,                                         No. 11-70346

              Petitioner,                         Agency No. A094-930-243

  v.
                                                  MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted November 18, 2014**
                               San Francisco, California

Before: THOMAS, Chief Judge, REINHARDT and CHRISTEN, Circuit Judges.

       Li, a native and citizen of China, petitions for review of an order from the

Board of Immigration Appeals (BIA) denying his claim for asylum, withholding of




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal, and protection under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252, and we deny Li’s petition.1

1.      An immigration judge (IJ) must “‘provide specific and cogent reasons in

support of an adverse credibility determination.’” Shrestha v. Holder, 590 F.3d

1034, 1044 (9th Cir. 2010) (quoting Malkandi v. Holder, 576 F.3d 906, 917 (9th

Cir. 2008)). Here, the BIA concluded that the IJ’s adverse credibility finding was

justified by: (1) the IJ’s findings that Li provided a false address on an application

for work authorization; (2) inconsistencies in Li’s testimony about alleged church

raids in 2005 and 2006; (3) inconsistencies between Li’s testimony about the

injuries he suffered in the 2006 raid and hospital records of his injuries; (4)

inconsistencies between Li’s testimony about his journey to the United States and

the information in his application for asylum; and (5) insufficient corroborating

evidence.

2.      The evidence does not compel a conclusion contrary to the one reached by

the BIA. See Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (“We . . .

must uphold the BIA’s finding unless the evidence compels a contrary result.”

(internal citation and quotation marks omitted)). The BIA’s adverse credibility



        1
              The parties are familiar with the facts, so we will not recount them
here.

                                           2
determination is supported by inconsistencies between Li’s testimony about how

he came to the United States and his travel documents. Li was unable to explain

why his passport was not stamped in France or why he had a Malaysian visa—he

testified that he traveled through France on his way to the United States, and that

he had never been to Malaysia. These inconsistencies call into question Li’s

testimony about his identity. Proof of identity is an element of an asylum claim.

See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

3.    Because the BIA’s adverse credibility determination is supported by

substantial evidence, Li cannot satisfy his burden of proving he is eligible for relief

from removal. See Kin v. Holder, 595 F.3d 1050, 1058 (9th Cir. 2010).

      PETITION DENIED.




                                           3
                                                                            FILED
Zhuen Li v Loretta Lynch 11-70346
                                                                               AUG 07 2015
Reinhardt, Circuit Judge, dissenting:
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
       Although the BIA relies on a number of grounds in affirming the IJ’s

adverse credibility determination, the majority—as I understand its

disposition—relies solely on inconsistencies in Li’s testimony regarding his travel

to the United States. The majority does so because the grounds other than the

inconsistencies regarding Li’s travel to the United States are either wholly

unsupported by the record or clearly trivial. I agree with the majority that Li’s

testimony is inconsistent with his travel documents. I do not believe, however, that

the inconsistency between Li’s testimony and the travel documents are significant

enough to deem his entire testimony not credible.

       If an IJ does not make an express adverse credibility determination, the BIA

must accept a petitioner’s testimony as true. Kalubi v. Ashcroft, 364 F.3d 1134,

1138 (9th Cir. 2004). Furthermore, the BIA cannot affirm an IJ’s adverse

credibility determination unless the IJ provides “specific and cogent reasons” for

the determination that are supported by substantial evidence. Shrestha v. Holder,

590 F.3d 1034, 1039, 1043 (9th Cir. 2010). Absent a valid adverse credibility

determination, the BIA must accept the petitioner’s testimony in an asylum hearing

as true.

       Although an IJ is certainly permitted to “consider any inconsistency,” we
have held that “inconsistencies must be considered in light of the ‘totality of the

circumstances, and all relevant factors.’” Shrestha, 590 F.3d at 1043 (citing 8

U.S.C. 1158(b)(1)(B)(iii)) (emphasis in original). The weight that the BIA must

accord a given inconsistency may depend in large measure on whether the

inconsistency goes to the heart of a petitioner’s claim. Compare id. at 1046–47

(“Although inconsistencies no longer need to go to the heart of the petitioner’s

claim, when an inconsistency is at the heart of the claim it doubtless is of great

weight.”), with id. at 1046 (“Even if there is some slight inconsistency between

Shrestha providing his parents’ address as his most recent address and stating that

he had stayed with his uncle temporarily, it is too trivial, under the total

circumstances, alone to form the basis of the adverse credibility determination.”).

      The heart of Li’s asylum claim is his testimony regarding church raids in

2005 and 2006 (and the injuries he suffered in the 2006 raid). The majority does

not rely on any of the BIA’s conclusions regarding alleged inconsistencies in this

part of his testimony; so, for purposes of evaluating the totality of the

circumstances, we must disregard those conclusions. The inconsistencies

regarding petitioner’s travel on which the majority does rely are so far afield from

the heart of his asylum claim that, under the totality of the circumstances, they

must be accorded very little weight and cannot form the basis of an adverse

credibility determination. Because the petitioner’s asylum application did not at all
depend on how he arrived in the country, his testimony regarding his travel to the

United States was entirely irrelevant to whether he would be eligible for asylum.

The majority believes that the inconsistencies concerning Li’s travel may call into

question his testimony about his identity. Neither the BIA nor the IJ suggested any

doubts regarding Li’s identity, however, and therefore we may not deny the

petition on that basis. See Doissaint v. Mukasey, 538 F.3d 1167, 1170 (9th Cir.

2008). Moreover, the record does not support any concern regarding Li’s identity.

For instance, the BIA and the IJ accepted Li’s statement that his sisters were, in

fact, his sisters; they merely objected to the fact that they did not appear at his

immigration hearing.

      Instead of considering the totality of the circumstances, the majority focuses

on trivial inconsistencies that are of little relevance to Li’s asylum claim. Because

I do not believe that these inconsistencies can, under controlling case law, serve as

the basis for an adverse credibility determination, I respectfully dissent.
