Shu Hu v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION FEB 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHU JIE HU, No. 08-72925
Petitioner, Agency No. A076-093-532
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2013 **
Pasadena, California
Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.
Shu Jie Hu, a native and citizen of China, petitions for review of the decision
of the Board of Immigration Appeals (BIA), which affirmed the finding of an
Immigration Judge (IJ) that Hu filed a frivolous asylum application -- a finding that
*
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).
forever bars her from receiving any benefits under the Immigration and Nationality
Act, 8 U.S.C. § 1101 et seq. (“INA”). Because the parties are familiar with the
facts, we repeat them only as necessary to illuminate our decision. We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.
Hu argues that she was denied due process because (1) the IJ who presided
over her case was biased against her as a result of a previous IJ’s allegedly
prejudicial comments, and (2) the admission into evidence of a suspicious stack of
documents, which Hu left behind in the courtroom after her asylum hearing, was
fundamentally unfair. She argues also that the record does not support the
frivolousness finding and that the IJ did not make sufficient findings regarding
which elements of her asylum claim were fabricated.
1. IJ Bagley’s comments, taken as a whole and in context, confirm that
he did not demonstrate improper bias against Hu. He correctly noted that any
judge assigned to Hu’s case would be required to review the record and would thus
be exposed to the statements made by IJ Walsh as he recused himself. IJ Bagley
recognized that there might be an innocent explanation for Hu’s possession and use
of the documents and believed he could be impartial. Hu was not “prevented from
reasonably presenting [her] case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000) (quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986)).
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Indeed, IJ Bagley allowed Hu to testify extensively regarding the documents. That
IJ Bagley did not credit Hu’s testimony does not violate due process.
2. The admission of Exhibits 5A and 5B did not violate Hu’s due process
rights because the evidence was “probative and its admission [was] fundamentally
fair.” Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995). The certificate of
translation by Interpreter Yang sufficiently identified the translated documents as
the entire stack of papers, even though the boilerplate language referred to only one
“document.” Further, although Hu claims that the documents found by IJ Walsh
suffer from a chain of custody problem, she has failed to identify a single missing,
altered, or mistranslated document. She has therefore failed to meet her burden of
showing that any irregularities in the exhibits might have affected the outcome of
the proceedings. See Colmenar, 210 F.3d at 971.
3. IJ Bagley made sufficiently specific findings that Hu deliberately
fabricated material elements of her asylum claim. See Khadka v. Holder, 618 F.3d
996, 1002 (9th Cir. 2010); 8 C.F.R. § 208.20. After reviewing the exhibits and
taking testimony, he determined that Hu’s asylum claim was “fabricated
throughout” and that her “entire testimony was based upon her review” of the
documents, which IJ Bagley described as “a primer or a set of instructions about
how one is to apply for asylum in the United States and how one should respond to
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questions asked in an asylum setting both about religion and about the basis of the
asylum claim.” In essence, the documents were the syllabus for Christianity 101.
IJ Bagley discussed the specific portions of the documents that caused him
to doubt Hu’s claim, gave Hu multiple opportunities to explain them, and
discussed why Hu’s explanations were unsatisfactory. This is sufficient under our
precedent to constitute an explicit finding that Hu knowingly filed a frivolous
application. See Ahir v. Mukasey, 527 F.3d 912, 918 (9th Cir. 2008) (holding that
an IJ’s finding that an asylum claim “had been fabricated ‘whole cloth’” was
sufficiently specific to support a frivolousness finding).
4. A strong preponderance of evidence supports the frivolousness
finding. See id. at 918-19. Hu’s testimony was full of contradictions and outright
reversals regarding, inter alia, who gave her the documents, why she had them,
whether she referred to them during her merits hearing, and whether she had
reviewed them at all. As the IJ noted, Hu’s testimony was “waffling and
inconsistent,” and her responses were “discrepant . . . and unbelievable.”
Although the consequences for filing a frivolous asylum application are
severe, Hu has no one else to blame for her troubles. She drowned herself in her
own changing tide of lies.
PETITION DENIED.
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