Unreported / Non-Citable
Background
Dongrong Lv, a native and citizen of the People's Republic of China, petitioned the Ninth Circuit to review a Board of Immigration Appeals decision affirming the denial of her claims for asylum, withholding of removal, and protection under the Convention Against Torture. She challenged the adverse credibility finding and the BIA's determination that country conditions evidence did not show she would face a clear probability of future torture if removed. The panel decided the case without oral argument in an unpublished memorandum, and it did not recount the underlying facts because the parties knew them.
Because the BIA cited Matter of Burbano and also supplied its own reasoning, the court reviewed both the Immigration Judge's decision and the BIA's decision. Legal questions were reviewed de novo and factual findings for substantial evidence, under which an agency determination stands unless the evidence compels a contrary conclusion. The BIA had affirmed the credibility ruling based on numerous material inconsistencies and omissions in the record, most significantly Lv's omission from her original claim of her later assertion that she was forced to have an abortion in 1991.
The Court’s Holding
The Ninth Circuit denied the petition. It held that substantial evidence supported the adverse credibility finding based on Lv's failure to mention the 1991 abortion in her original statement to the asylum officer. Relying on Zamanov v. Holder and Silva-Pereira v. Lynch, the court treated the omission as more than a lack of detail, because omissions that go to the core of a claim or add new allegations telling a much different and more compelling story of persecution can support an adverse credibility finding.
With no credible testimony and no sufficient independent corroborating evidence, the record did not compel the conclusion that Lv was eligible for asylum or withholding of removal. Her CAT claim failed for a related reason: it rested on the same testimony found not credible, and she identified no other evidence suggesting it was more likely than not that she would be tortured if returned to China.
The court also resolved three side issues in a footnote. It did not consider Lv's argument about her son's birth certificate because that evidence was never submitted to the Immigration Judge or BIA. To the extent she raised a due process claim, it was unexhausted. And her contention that her initial testimony could be read to show a previous abortion failed because she could not show the record compels that conclusion.
Key Takeaways
- The panel upheld an adverse credibility finding because Lv's original statement to the asylum officer omitted the 1991 abortion she later asserted, treating the omission as going to the core of her claim.
- Review is deferential: the agency's credibility determination stands unless the evidence compels a contrary conclusion, and a petitioner who offers an alternative reading of the record must show the record compels it.
- Where testimony is not credible and independent corroboration is insufficient, the record does not compel a finding of eligibility for asylum or withholding of removal.
- A CAT claim that rests on the same discredited testimony fails unless the petitioner points to other evidence showing that torture is more likely than not.
- Evidence never presented to the Immigration Judge or BIA cannot be considered on petition for review, and unexhausted due process claims are not reviewed.
Why It Matters
This is an unpublished memorandum, not precedent except as provided by Ninth Circuit Rule 36-3, so it adds no new rule. It applies settled authority to a familiar pattern: a significant harm absent from an earliest account and added later can support an adverse credibility finding under the deferential substantial evidence standard.
The ruling resolves only this petition for review, which is denied. The memorandum does not discuss any further proceedings, and it does not decide whether the abortion allegation is true, since the agency found her not credible. Practitioners should note the record-based limits: evidence outside the agency record and unexhausted claims were not considered, and a CAT claim gains no independent footing from a rejected narrative. Petitioners and counsel should present the full account at the earliest stage and place all supporting evidence before the agency.