Zhaoyang Chen v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
AUG 19 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHAOYANG CHEN, No. 15-73269
Petitioner, Agency No. A087-829-269
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 15, 2019**
Pasadena, California
Before: CALLAHAN and CHRISTEN, Circuit Judges, and WU,*** District Judge.
Petitioner Zhaoyang Chen seeks review of a Board of Immigration Appeals
(BIA) decision denying Ms. Chen’s applications for asylum, withholding of
*
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 George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
removal, and relief under the Convention Against Torture (CAT). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition. Because the
parties are familiar with the facts, we recite only those facts necessary to decide the
petition.
“Where the BIA issues its own decision but relies in part on the immigration
judge’s reasoning, we review both decisions.” Singh v. Holder, 753 F.3d 826, 830
(9th Cir. 2014) (quoting Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir.
2012)). We review factual findings, including adverse credibility determinations,
for substantial evidence. Lianhua Jiang v. Holder, 754 F.3d 733, 738 (9th Cir.
2014).
Under the REAL ID Act of 2005, adverse credibility determinations are
based on “the totality of the circumstances, and all relevant factors,” including “the
demeanor, candor, or responsiveness of the applicant,” or “the consistency” of the
applicant’s statements. Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th Cir.
2010) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). “[T]he REAL ID Act requires a
healthy measure of deference to agency credibility determinations” because
immigration judges (IJs) “are in the best position to assess demeanor and other
credibility cues that we cannot readily access on review,” id. at 1041, so long as
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the IJ provides “a specific cogent reason for the adverse credibility finding.” Id. at
1042 (quoting Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002)).
The adverse credibility determination against Ms. Chen is supported by
substantial evidence. The IJ detailed several specific reasons supporting an
adverse credibility determination, including “discrepancies between [Ms. Chen’s]
documents and herself,” “her demeanor and the way she testified,” conflicts
between her testimony to the asylum officer and to the IJ, and “the lack of
plausible or persuasive explanations” for the inconsistencies or failure to obtain
certain documents. The IJ described several inconsistencies in both Ms. Chen’s
documentation and testimony, including her testimony about two “diversely
different birth control methods” before the asylum officer and the IJ, her changing
testimony about her mother being sterilized, and her “generally . . . vague”
testimony. Ms. Chen was unable to explain to the IJ why she apparently could not
recall her mother’s alleged sterilization, about which she had previously given
details to the asylum officer, including the date, the reasons for the sterilization,
and how it had impacted her. Further, the IJ determined that Ms. Chen’s
explanations were “simply unpersuasive and in fact implausible,” including that
she had lost all of her original documents except her passport, yet made no
attempts to replace them, that she did not remember any of her testimony to the
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asylum officer, and that she had been unprepared for her asylum interview, when
she was represented by counsel and had two interpreters.
We are likewise unpersuaded by Petitioner’s argument that the BIA
misapplied Ren v. Holder, 648 F.3d 1079, 1090 (9th Cir. 2011). Ren applies when
an IJ finds an applicant credible but determines that the applicant’s testimony alone
is insufficient to meet the burden of proof. Id. at 1091. In those circumstances,
Ren requires that the IJ give the applicant notice of what corroborating evidence is
necessary and an opportunity to produce the evidence or explain why it is not
reasonably available. Id. at 1093. Ren has no application when, as here, the IJ
determines that, despite some corroborating evidence, the Petitioner lacks
credibility.
In light of the agency’s adverse credibility determination, Petitioner failed to
meet her burden of establishing eligibility for asylum, withholding of removal, or
protection under the CAT. See Shrestha, 590 F.3d at 1048–49.
PETITION DENIED.
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