Yanmin Zhao v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YANMIN ZHAO, No. 18-70930
Petitioner, Agency No. A201-209-408
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2020**
Honolulu, Hawaii
Before: FARRIS, McKEOWN, and BADE, Circuit Judges.
Petitioner Yanmin Zhao ("Zhao"), a native of the Republic of China, seeks
review of the Board of Immigration Appeals (“BIA”) decision affirming the denial
of her asylum and Convention Against Torture (“CAT”) claims. The parties are
*
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).
familiar with the facts and procedural history, so we do not repeat them here. We
have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.
The IJ did not err in her treatment of Zhao's credibility. An “IJ must provide
‘specific and cogent reasons' in support of an adverse credibility determination.”
Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009) (quoting He v. Ashcroft,
328 F.3d 593, 595 (9th Cir. 2003)). Here, the IJ did not impermissibly make a
“backdoor” adverse credibility finding against Zhao; rather, the IJ found Zhao
credible, accepted what she said as true. The IJ then permissibly exercised her
discretion to deny asylum after assigning appropriate weight to those truthful
statements and balancing them against other adverse factors. See Kalubi v.
Ashcroft, 364 F.3d 1134, 1038 (9th Cir. 2004) (the BIA has discretion “to decide
what consequences to attach to the facts thereby taken as true” and “to determine
what weight to give them”); Gulla v. Gonzales, 498 F.3d 911, 915 (9th Cir. 2007)
(“Once an applicant establishes statutory eligibility for asylum, the Attorney
General must, by a proper exercise of discretion, determine whether to grant that
relief.” (internal quotations and alterations omitted)).
Nor did the IJ err in denying Zhao’s asylum petition. We review the
discretionary denial of asylum for abuse of discretion. Id. at 1137; 8 U.S.C. §
1252(b)(4)(D). The burden of proof is on the applicant to establish both statutory
eligibility for asylum and that such relief should be granted in the exercise of
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discretion. 8 U.S.C. § 1158(b)(1)(B). During the discretionary step of an asylum
application, the IJ must consider favorable and adverse factors and “explain
sufficiently how each factor figures in the balance so the court can determine that
the factor has been heard, considered, and decided.” Gulla, 498 F.3d at 916. The
adverse factors counseling against asylum were clear here, to include the
circumstances surrounding Zhao’s criminal conduct and the fact that Zhao offered
no corroborating evidence about her work history post-conviction. Finally, the IJ
properly reconsidered the discretionary denial of asylum in light of Zhao’s grant of
withholding of removal.
Finally, Zhao waived her CAT claim by failing to raise specific arguments in
support of that claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996) (“Issues raised in a brief that are not supported by argument are deemed
abandoned.”).
PETITION DENIED.
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