CHUNYING ZHAO V. MERRICK GARLAND ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 27 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHUNYING ZHAO, No. 16-72512
Petitioner, Agency No. A201-190-940
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 16, 2022**
Pasadena, California
Before: KLEINFELD, MILLER, and COLLINS, Circuit Judges.
Petitioner Chunying Zhao, a Chinese citizen, seeks review of the decision of
the Board of Immigration Appeals (“BIA”) upholding the order of an Immigration
Judge (“IJ”) denying her application for asylum and withholding of removal.1 We
have jurisdiction under § 242 of the Immigration and Nationality Act (“INA”). See
8 U.S.C. § 1252. 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 that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
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Zhao did not challenge the IJ’s denial of relief under the Convention Against
Torture before the BIA, nor has she raised that issue in this court.
1. Zhao challenges the agency’s conclusion that Zhao was not eligible for
asylum or withholding of removal. As to these issues, the BIA adopted the IJ’s
decision and cited Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and
“[w]e therefore review the decision of the IJ, as well as any additional reasoning
offered by the BIA.” Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008).
We hold that substantial evidence supports the IJ’s conclusion that Zhao’s
testimony was not credible. See Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir.
2020).
The IJ properly considered Zhao’s “demeanor” while testifying, and the IJ’s
judgments on that score “merit[] special deference . . . for the obvious reason that
the IJ sees the witnesses and hears them testify, while we look only at cold
records.” Dong v. Garland, 50 F.4th 1291, 1298 (9th Cir. 2022) (simplified). The
IJ “provide[d] specific examples” of Zhao’s demeanor to support this
determination, see Kin v. Holder, 595 F.3d 1050, 1056 (9th Cir. 2010), identifying
specific points in Zhao’s testimony in which she was “overly agitated” and “unable
to control herself.” Indeed, the IJ noted that Zhao was nervously fidgeting with
documents to such an extent that, at one point, her attorney gathered them up and
moved them out of her reach.
The IJ also reasonably concluded that Zhao’s credibility was undermined by
the fact that her testimony added highly significant details that had been omitted
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from her written statement in support of her asylum application. Specifically,
Zhao’s written statement asserted that the family planning office “required [her] to
insert with [sic] IUD compulsorily” in 1990 and that she “had no choice to undergo
abortion in a hospital” in 1992. In her testimony, however, Zhao added that she
was physically seized on both occasions and dragged to the hospital, where the
procedures were forcibly conducted. Notably, the written statement’s description
of these 1990 and 1992 incidents differed from its description of a 2003 incident,
as to which Zhao claimed that, when asked “to undergo abortion again,” she
“refused to do so this time” and she was then brought “to a hospital by force.” The
fact that Zhao’s hearing testimony added critical details concerning the 1990 and
1992 incidents in a way that significantly enhanced the gravity of the claimed
persecution is a factor that the IJ could properly consider in assessing credibility.
See Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016).
The IJ further noted that Zhao’s testimony concerning the asserted June 28,
2010 protest was “disjointed” in a way that “call[ed] into question the veracity of
this aspect of her claim for relief.” Specifically, Zhao claimed that the 2010
protest concerned mass layoffs at the factory where she worked, but she also
testified that the layoffs occurred in 2006. When asked to explain why the protests
would have occurred four years after the layoffs, Zhao gave a series of vague
explanations that the IJ reasonably and properly concluded undermined her
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credibility. See Lalayan v. Garland, 4 F.4th 822, 839 (9th Cir. 2021).
We do not rely on the IJ’s assertion that Zhao gave “confusing testimony” in
explaining why two documents that she submitted to confirm her employment
listed “company names” that were “different.” Zhao explained that the name of
the company was the same in both Chinese originals and that she did not know
“how they were translated” differently into English. The Chinese originals are in
the record, and they indeed appear to use the same exact seven Chinese characters
to identify the company, but the English translations render that phrase differently,
resulting in the discrepancy noted by the IJ. Despite this error, remand is not
warranted because, considering the record as a whole, we conclude that the
remaining considerations identified by the IJ “are sufficient to conclude that
substantial evidence supports the adverse credibility determination.” Rodriguez-
Ramirez v. Garland, 11 F.4th 1091, 1094 (9th Cir. 2021).
2. We further hold that the agency permissibly concluded that Zhao’s
documentary evidence “did not sufficiently rehabilitate her discredited testimony
or independently satisfy her burden.” Given Zhao’s lack of credibility, we cannot
say that the documents she supplied compel the conclusion that she has met her
burden in connection with her asylum and withholding claims. See Wang v.
Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017).
Reviewing de novo, see Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.
4
2002), we also reject Zhao’s contention that the agency violated her due process
rights by allegedly failing to give appropriate consideration to her documentary
evidence. Although the IJ’s ruling does not specifically analyze all of the
documentary evidence presented, the hearing transcript confirms that the IJ had
reviewed and considered the documents supplied by Zhao. Nor has Zhao rebutted
the presumption that the BIA reviewed all relevant materials in the record. See
Larita-Martinez v. INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000).
PETITION DENIED.
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