Li Song v. Eric H. Holder Jr. , 383 F. App'x 629 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 11 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LI JUN SONG, No. 08-73864
Petitioner, Agency No. A077-292-832
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 4, 2010
Pasadena, California
Before: CLIFTON and BYBEE, Circuit Judges, and KORMAN, District Judge.**
Li Jun Song, a native and citizen of China, petitions for review of a decision
by the Board of Immigration Appeals. In that decision, which followed a remand
from this court, the BIA again dismissed petitioner’s appeal from a decision of an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Immigration Judge ordering his removal and denying his applications for asylum
and withholding of removal. We deny the petition.
The denial of petitioner’s application was primarily based on an adverse
credibility determination. In our prior decision, we held that the adverse credibility
determination previously made by the IJ and affirmed by the BIA was based on
improper grounds, but we did not preclude the BIA from again concluding that
petitioner was not credible if it could better justify and explain that conclusion.
See Li Jun Song v. Mukasey, 279 Fed.Appx. 460 (9th Cir. 2008) (unpublished).
In again affirming the IJ’s adverse credibility finding on remand, the BIA
primarily relied upon Song’s inconsistent explanations for his purported fear of
returning to China. The BIA specifically noted that upon his arrival in the United
States, Song failed “to mention any of the facts central to his subsequent asylum
claim in his statements to immigration officials.” He did not tell immigration
officials at the airport about political activities in China and failed to assert any fear
of returning to China based on his political activities or beliefs, though that was the
argument he later made. To the contrary, he asserted under oath that he was not
political and explained that his fear of returning to China was based on the
behavior of his travel companion on the plane when traveling to the United States.
Song’s explanation that at the time of the false statements he had been nervous and
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feared that an interpreter at one of the interviews worked for the Chinese
government was rejected by the BIA, which observed that the interpreter in
question was present at only one of the airport interviews.
Song argues that the Ninth Circuit has “hesitate[d] to view statements given
during airport interviews as valuable impeachment sources because of the
conditions under which they are taken and because a newly-arriving alien cannot
be expected to divulge every detail of the persecution he or she sustained.” Li v.
Ashcroft, 378 F.3d 959, 962-63 (9th Cir. 2004). However, this observation does
not mean that everything said at airport interviews must be disregarded. Indeed, in
Li, we denied a petition for review and sustained an adverse credibility
determination when Li, who sought asylum based on past political persecution, had
affirmatively denied at an airport interview any mistreatment by the Chinese
government and had offered a non-political reason for leaving China. See id. at
963-64. Like that petitioner, Song did not simply omit details during his airport
interviews but told an entirely different story. As in Li, that provides a basis for an
adverse credibility determination.
It is true that the IJ’s explanation for the original adverse credibility
determination included grounds that could not properly support that finding. Our
court so concluded the first time we considered Song’s case. But on remand the
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BIA limited and better explained the basis for its decision, as our prior decision
permitted. “So long as one of the identified grounds is supported by substantial
evidence and goes to the heart of [petitioner’s] claim of persecution, we are bound
to accept the IJ's adverse credibility finding.” Wang v. I.N.S., 352 F.3d 1250,
1259 (9th Cir. 2003).
PETITION DENIED.
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