NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUNG VAN PHAN,

Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 19

- 70739 Agency No. A213

- 087

- 783

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 14, 2021 * * Pasadena, California Before: M. SMITH and IKUTA, Circuit Judges, and STEELE, ** * District Judge. Trung Van Phan (Phan) petitions for review of the decisio n of the Board of Immigration Appeals (BIA)

. The BIA affirmed the Immigration Judge’s (IJ’s)

* 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).

*** The Honorable John E. Steele, United States District Judge for the Middle District of Florida, sitting by designation. 

# FILED

APR 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

adverse credibility finding as to Phan’s asylum and withholding claims and affirmed the IJ’s decision to deny relief pursuant to the Convention Against Torture (C AT).
Because the parties are familiar with the facts, we do not recount them here , except as necessary to provide context to our ruling

. We DENY the petition for review.
1. An IJ must “[c]onsider[] the totality of the circumstances[] and all relevant factors” in determining an applicant’s credibility. 8 U.S.C. § 1158(b)(1)(B)(iii).

“ We review the IJ and BIA’s adverse credibility finding for substantial evidence.”
Solo

- Olar te v. Holder , 555 F.3d 1089, 1091 (9th Cir. 2009). “Substantial evidence
is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Ibarra

- Flores v. Gonzales , 439 F.3d 614, 618 (9th Cir. 2006) (citation and internal quotation marks omitted). We

must “uphold the BIA’s findings unless the evidence compels a contrary result.” Jie Cui v. Holder , 712 F.3d 1332, 1336 (9th Cir. 2013). The IJ and BIA relied on a number of factors in determining that Phan was
not credible. For example, t he BIA affirmed the IJ’s ruling that Phan’s inability to “remember which European countries he traveled through in order to reach the United States .

. . was implausible, especially considering that [Phan] has graduated
from a four

- year college.” “Although ‘speculation and conjecture’ alone cannot sustain an adverse credibility finding, an IJ must be allowed to exercise common sense in rejecting a petitio ner’s testimony even if the IJ cannot point to specific,3

contrary evidence in the record to refute it.” Jibril v. Gonzales , 423 F.3d 1129, 1135 (9th Cir. 2005). We agree that the IJ could exercise his common sense and decide that Phan’s inability to reme mber a single country through which he traveled undermined his testimony. Additionally, Phan’s testimony was evasive at times . Phan did not provide a direct answer to the IJ’s question: “[W]hen was the last time the [Vietnamese] police contacted your par ents?” Such evasi ve testimony can form the basis for an adverse credibility finding. See Bingxu Jin v. Holder , 748 F.3d 959, 962

– 65 (9th Cir. 2014). Phan also omitted his parents’ profession as “fisherfolk” from his asylum application. Because Phan’s a sylum and withholding claims relate to protests against an environmental disaster, which affected the local fishing industry, this omission was material to his application as a whole. While “ omissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony ,” we have “recognized that an omission may form the basis for an adverse credibility finding,” at least in part. Lai v. Holder , 773 F.3d 966, 971 (9th Cir. 2014)

. Finally, the BIA highlighted the IJ’s finding pertaining to Phan’s demeanor. The IJ “ observed that [Phan’s flat ] emotional affect seemed inconsistent with that of a torture victim.” Although Phan argues that “emotional numbing is a common coping mechanism for individuals with” post

- traumatic stress disorder (PTSD), he4

cites nothing in the record to show that he has been diagnosed with PTSD. We give special deference to an IJ’s demeanor findings “ because IJs are in the best position
to assess demeanor and other credibilit y cues that we cannot readily access on
review. ” Shrestha v. Holder , 590 F.3d 1034, 1041 (9th Cir. 2010) Although no single factor in this case standing alone would necessarily result in our affirmance of the BIA and IJ, when viewing “the totality of the circumstances,” 8 U.S.C. § 1158(b)(1)(B)(iii), Phan has not met his heavy burden in showing that “ the evidence compels a contrary result , ” Jie Cui , 712 F.3d at 1336. Therefore, we affirm the adverse credibility finding and the denial of Phan’s applicatio ns for asylum and withholding of removal. See Mukulumbutu v. Barr , 977 F.3d 924, 927 (9th Cir. 2020).
2. “ An adverse credibility determination is not necessarily a death knell to CAT protection. ” Shrestha , 590 F.3d at 1048. However, when a CAT claim is based on the same allegations for which the IJ made an adverse credibility finding, that adverse credibility finding is especially probative for the CAT claim. See Yali Wang
v. Sessions , 861 F.3d 1003, 1009 (9th Cir. 2017) . I n such an instance, the petitioner must rely almost exclusively on evidence of country conditions. See 8 C.F.R. § 1208.16(c)(3). Phan’s other evidence for CAT relief is largely drawn from a 2016 report from the Department of State, which reviews harassme nt and abuse in the Vietnamese5

criminal justice system

. That report states that some political prisoners suffer “physical abuse” in Vietnamese prisons, but does not detail abuse in Vietnamese prison for those who were arrested for protesting the 2016 envi ronmental disaster,
like Phan. Thus, the State Department report “is insufficient to compel the conclusion that [ Phan ] would be tortured if returned.” Lianhua Jiang v. Holder , 754 F.3d 733, 740 (9th Cir. 2014) ; see also 8 C.F.R. § 1208.16(c)(2). Therefo re, we also affirm the BIA with regard to Phan’s CAT claim.
DENIED.