NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HEYI SHAO, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 15-72808 

Agency No. A089-893-002 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 22, 2021**

Pasadena, California

Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.

Petitioner Heyi Shao, a Chinese national, seeks review of a Board of 

Immigration Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”) 

final order of removal based on an adverse credibility finding. We have jurisdiction 

under 8 U.S.C. § 1252 to review final orders of removal issued by the BIA. We 

* 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).

FILED

OCT 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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review BIA denials of asylum, withholding of removal, and relief under the 

Convention Against Torture, including adverse credibility determinations, for 

substantial evidence. Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). This 

court recently replaced the “single factor” test for adverse credibility determinations 

with a totality of the circumstances test. Alam v. Garland, 11 F.4th 1133, 1137 (9th 

Cir. 2021) (en banc). Therefore, we apply a totality of the circumstances test to 

determine whether the IJ’s decision was supported by substantial evidence. See id.

We deny the petition.

Shao claims that he was introduced to Christianity in China after his divorce 

in 2006 and then arrested and detained on June 22, 2008, for organizing and 

attending a house church gathering. Upon his release, Chinese authorities closed the 

restaurant Shao owned and revoked his business license. Shao entered the United 

States on a B-1 visa in 2008. He applied for asylum, withholding of removal, and 

protection under the Convention Against Torture on January 2, 2009. An IJ denied 

his application based on his “insincere” and “materially inconsistent” testimony on 

September 26, 2013. Shao appealed the IJ’s decision to the BIA, which dismissed 

Shao’s appeal based on a series of inconsistencies in Shao’s testimony on August 

11, 2015.

When reviewing BIA decisions, we “consider only the grounds relied upon 

by that agency,” Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) 
3 

(citation omitted), and may not affirm upon grounds the BIA did not rely upon itself,

Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). We conclude that the BIA 

decision was supported by substantial evidence.

1. When testifying before the IJ about a restaurant he owned in China, Shao 

stated that he opened it in China in 1992. But in his asylum application, Shao stated 

that he opened the restaurant in 1999. When Shao was confronted with this 

discrepancy, he replied that the restaurant was “not really full-fledged” until 1999. 

Shao argues that he was not provided a “reasonable opportunity to offer an 

explanation of [the] perceived inconsistencies that form[ed] the basis of” the denial 

of his asylum claim. Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999).

This argument, however, does not align with the facts. Not only does the 

record demonstrate that Shao was expressly asked why there was a discrepancy, but

he was also given a chance to explain it. Shao offered neither any evidence for the 

existence of the restaurant, nor an explanation for the discrepancy in his testimony.

2. Shao stated that he first married in 1983, but then divorced, reconciled, and 

later divorced the same woman again in 2006. He claims that the difficulty in 

dealing with his divorce prompted his interest in Christianity.

Shao submitted a 2011 letter from a friend in China that states that Shao’s 

“wife” told the friend of the persecution Shao faced for being Christian. But Shao

testified that he had not spoken to his wife since their divorce, which he testified was 
4 

before he became a Christian. Shao also submitted his household registration, which 

listed his marital status as married. He testified that the information in the 

registration was current and accurate but later said that he neglected to update his 

marital status because his wife moved to another district.

Shao argues that because his relationship with his wife was “discontinuous in 

nature, it is highly plausible that his friend may still refer to Shao’s former spouse 

as his wife.” While this argument may be persuasive, it fails to explain how his 

friend could have learned about Shao’s persecution from someone who Shao 

testified that he had not spoken to. Shao also failed to offer a plausible explanation

for why his marital status was listed incorrectly on his household registration. 

3. In addition to addressing his marital status, Shao’s household registration

listed him as being employed in a medicine factory. Shao’s only explanation about 

this contradictory statement was that he worked in the medicine factory “back in 

1980.” Additionally, Shao’s asylum application listed a continuous address in 

China, but the register states that he moved in 2004.

Shao simply argues that “he has presented a plausible and persuasive 

explanation for his statements at trial in regard to the information contained in his 

household register.” But we uphold the BIA’s determination when it was supported 

by substantial evidence, as it was here. The record demonstrates that when 
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confronted with these inconsistencies, Shao was either non-responsive or 

unpersuasive, and Shao has not offered evidence that compels a different finding.

4. Finally, Shao testified and presented evidence that he attends a Lutheran 

Church in Monterey Park and that he was baptized at the Bread of Life Church. Shao

presented a witness, however, who testified that Shao attends a Salvation Army 

church in San Gabriel and was baptized at the Church of Glory.

Shao makes neither a factual nor a legal argument here that persuasively 

resolves this inconsistency. Shao testified after his witness, but his follow-up did 

nothing to resolve the conflicting testimony. Therefore, the BIA’s ruling on Shao’s 

practice of Christianity in the United States was supported by substantial evidence.

Because each of the grounds for the decision was supported by substantial 

evidence, the totality of the circumstances support the BIA’s adverse credibility 

ruling, and we deny the petition. 

PETITION DENIED.