Xiuqin Yan v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIUQIN YAN, No. 16-73481
Petitioner, Agency No. A200-781-003
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 3, 2020**
Pasadena, California
Before: IKUTA and LEE, Circuit Judges, and MARBLEY,*** District Judge.
Xiuqin Yan, a native and citizen of China, petitions for review of the Board
of Immigration Appeal’s decision affirming the denial of her asylum application and
the finding of a frivolous application. We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petition.
*
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 Algenon L. Marbley, Chief United States District
Judge for the Southern District of Ohio, sitting by designation.
1. We review the denial of asylum for substantial evidence. See Silva-
Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016). We must affirm the BIA’s
decision unless “the evidence not only supports a contrary conclusion,
but compels it.” Id. (emphasis in original).
Substantial evidence supports the BIA’s decision to affirm the Immigration
Judge’s adverse credibility determination, which was based on over a dozen
inconsistencies throughout Yan’s testimony. These inconsistencies, which are
supported by the record, undermine Yan’s core claim that she was persecuted for
attending a house church in China. See Shrestha v. Holder, 590 F.3d 1034, 1046-47
(9th Cir. 2010) (“Although inconsistencies no longer need to go to the heart of the
petitioner's claim, when an inconsistency is at the heart of the claim it doubtless is
of great weight.”).
In the absence of her discredited testimony, the record lacks sufficient
evidence for Yan to demonstrate “past persecution or a well-founded fear of future
persecution on a protected ground.” See Rizk v. Holder, 629 F.3d 1083, 1091 (9th
Cir. 2011). Accordingly, the BIA did not err in affirming the denial of asylum.
2. Under 8 U.S.C. § 1158(d)(6), an alien who has “knowingly made a
frivolous application for asylum” is “permanently ineligible” for immigration
benefits. We review a frivolous finding for whether a preponderance of the evidence
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establishes that the alien “deliberately fabricated a material element” of her asylum
application. See Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir. 2010).
A preponderance of the evidence supports the BIA’s affirmance of the IJ’s
frivolous finding. When asked on her asylum application whether she had ever been
arrested outside the United States, Yan omitted her prior arrest for kidnapping in
Poland. The deliberateness of this omission was confirmed at Yan’s merits hearing,
when she at first denied ever being arrested in Poland. Only after being confronted
with details from an INTERPOL warrant did Yan admit to the arrest, which she
followed with an implausible explanation for omitting it from her application.
Yan’s deliberate omission of her arrest for kidnapping goes to a “material
element” of her application because, under 8 U.S.C. § 1158(b)(2)(A)(iii), asylum is
unavailable if “there are serious reasons for believing that the alien has committed a
serious nonpolitical crime outside the United States.” Because her arrest history
directly implicated her eligibility for asylum, it was proper for the BIA to uphold the
IJ’s frivolous finding on this basis. See Kulakchyan v. Holder, 730 F.3d 993, 995-
96 (9th Cir. 2013) (upholding frivolous finding based on misrepresentation that
“went to the very question of whether [petitioner’s] application” was barred by an
eligibility requirement).
DENIED.
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