Jian Cao v. Eric Holder, Jr. , 578 F. App'x 722 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JIAN MEI CAO, No. 10-70557
Petitioner, Agency No. A077-109-662
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 16, 2014**
Pasadena, California
Before: FISHER and CHRISTEN, Circuit Judges, and SILVER, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
Jian Mei Cao, a native and citizen of China, petitions for review of a
decision of the Board of Immigration Appeals (“BIA”). The BIA dismissed her
appeal from an immigration judge’s decision denying her application for
withholding of removal based on an adverse credibility finding. We affirm.
As an initial matter, the government argues 8 U.S.C. § 1252(a)(2)(C)
precludes jurisdiction in this case. We have jurisdiction to determine whether
jurisdiction exists. Ramadan v. Gonzales, 479 F.3d 646, 649 (9th Cir. 2007) (per
curiam). We conclude jurisdiction exists because the BIA’s final order of removal
was based not on Cao’s conviction, but rather on a determination that she had not
satisfied the requisite burden of proof. See Bromfield v. Mukasey, 543 F.3d 1071,
1075 (9th Cir. 2008).
We review adverse credibility findings under the “substantial evidence”
standard, where the finding is upheld “unless the evidence compels a contrary
result.” Chawla v. Holder, 599 F.3d 998, 1001 (9th Cir. 2010) (quoting Don v.
Gonzales, 476 F.3d 738, 741 (9th Cir. 2007)). We conclude substantial evidence
supports the BIA’s adverse credibility finding. The BIA properly relied on Cao’s
inconsistent testimony regarding her conviction, as the BIA can take administrative
notice of a conviction. See 8 C.F.R. 1003.1(d)(3)(iv); Ramirez-Villalpando v.
Holder, 645 F.3d 1035, 1041 (9th Cir. 2011). Cao was given an opportunity to
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explain the conviction. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).
Further, Cao’s inconsistencies were not mere “typographical errors” and were
accompanied by other indicia of dishonesty. See Kaur v. Gonzales, 418 F.3d 1061,
1064 (9th Cir. 2005). The BIA also properly relied on Cao’s failure to provide
corroborating evidence. See Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000).
The BIA may have improperly relied on Cao’s voluntary return to China, as
an alien’s voluntary return to her home country to care for a loved one does not
repudiate her claim of fearing to return in the future. See Smolniakova v. Gonzales,
422 F.3d 1037, 1050 (9th Cir. 2005); Karouni v. Gonzales, 399 F.3d 1163, 1176
(9th Cir. 2005). However, because Cao’s inconsistencies regarding her conviction
and her inability to provide readily available corroborating evidence support the
BIA’s adverse credibility finding, we conclude the record does not compel
reversal.
PETITION FOR REVIEW DENIED.
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