Shouchen Yang v. Loretta E. Lynch ( 2016 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    SHOUCHEN YANG,                                   No. 12-71773
    Petitioner,
    Agency No.
    v.                           A099-045-733
    LORETTA E. LYNCH, Attorney
    General,                                           OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    November 4, 2015—University of California, Los Angeles
    Filed February 26, 2016
    Before: Mary M. Schroeder and Michelle T. Friedland,
    Circuit Judges and Vince Chhabria,* District Judge.
    Opinion by Judge Chhabria
    Dissent by Judge Schroeder
    *
    The Honorable Vince Chhabria, United States District Judge for the
    Northern District of California, sitting by designation.
    2                         YANG V. LYNCH
    SUMMARY**
    Immigration
    The panel granted a petition for review of the denial of a
    motion to reopen removal proceedings, concluding that the
    Board of Immigration Appeals erred when it applied the
    maxim falsus in uno, falsus in omnibus—“false in one thing,
    false in everything”— to reject as not credible petitioner’s
    new claim for asylum relief, based on a prior adverse
    credibility determination in underlying removal proceedings.
    The panel explained that unlike an immigration judge, the
    Board may not make findings of fact, and must instead credit
    evidence supporting a motion to reopen unless that evidence
    is inherently unbelievable. The panel stated that the falsus
    maxim cannot render an affidavit inherently unbelievable
    because the maxim is discretionary, not mandatory, and the
    Board as an appellate body is limited to reviewing the IJ’s
    factual findings for clear error, rather than making factual
    determinations in the first instance.
    Dissenting, Judge Schroeder agreed that the Board is
    prohibited from making credibility determinations in
    considering a motion to reopen, but she does not view the
    Board’s denial in this case to be premised on credibility, but
    rather petitioner’s failure to meet the heavy burden of
    showing that the result in this case would change if the case
    was reopened.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    YANG V. LYNCH                          3
    COUNSEL
    Certified Law Students Ronald Park (argued) and Emily
    Cross (argued), supervised by Kathryn M. Davis and Peter R.
    Afrasiabi; University of California, Irvine School of Law;
    Irvine, California, for Petitioner.
    Jonathan Robbins (argued), Jennifer R. Khouri, and Jennifer
    P. Levings, Office of Immigration Litigation; Benjamin C.
    Mizer, Civil Division; U.S. Department of Justice;
    Washington, D.C., for Respondent.
    OPINION
    CHHABRIA, District Judge:
    This court has held that an immigration judge may use the
    maxim falsus in uno, falsus in omnibus—“false in one thing,
    false in everything”—to find that a witness who testified
    falsely in one respect at a removal hearing is also not credible
    in other respects. Enying Li v. Holder, 
    738 F.3d 1160
    ,
    1161–62 (9th Cir. 2013). The question in this appeal is
    whether the Board of Immigration Appeals (“BIA”) may do
    the same thing when considering a motion to reopen removal
    proceedings. We conclude it may not. In contrast to an
    immigration judge, the BIA is not a finder of fact, so it cannot
    make the kind of credibility determination inherent in a
    decision to apply the falsus maxim. Because the BIA applied
    the falsus maxim in denying Shouchen Yang’s motion to
    reopen, we grant his petition for review.
    4                     YANG V. LYNCH
    I.
    Shouchen Yang is a native and citizen of the People’s
    Republic of China. He entered the United States on a
    nonimmigrant visa in January 2005 and overstayed. He
    subsequently applied for asylum, withholding of removal, and
    protection under the Convention against Torture. The asylum
    officer who initially processed Yang’s application referred
    him to an immigration judge, and Yang entered removal
    proceedings.
    In removal proceedings, Yang testified that he had
    mobilized his co-workers to complain about corruption in the
    government-affiliated hotel where they worked, prompting
    local officials to have Yang arrested and beaten. But the
    immigration judge found that Yang’s testimony was not
    credible, and denied Yang’s applications for relief. The BIA
    dismissed Yang’s appeal from this decision, holding that the
    immigration judge’s credibility determination was not clearly
    erroneous.
    Yang then filed a timely motion to reopen, asserting a
    new factual basis for relief. According to Yang, after he was
    ordered removed, he joined a Christian church whose
    members were persecuted in China. In support of his motion,
    Yang submitted an affidavit that detailed his purported
    religious conversion. The affidavit further alleged that, after
    Yang tried to mail religious literature to his wife in China,
    Chinese authorities threatened to send her to a forced labor
    camp. Yang also submitted a document that he identified as
    a letter from his wife, which described purported threats by
    Chinese authorities, as well as other documentary evidence.
    YANG V. LYNCH                          5
    The BIA denied Yang’s motion to reopen. In doing so,
    the BIA found that, because the immigration judge in removal
    proceedings had found that Yang’s testimony in those
    proceedings was not credible, the new affidavit that Yang
    submitted with his motion to reopen was also not credible.
    Specifically, the BIA held that Yang “has not shown why the
    Board should now accept the statements offered in support of
    the motion as reliable where his prior testimony has been
    found to lack credibility, and where [Yang] has not offered an
    explanation to overcome the Immigration Judge’s adverse
    credibility determination.”
    Yang timely petitioned for review.
    II.
    “We review the denial of a motion to reopen for abuse of
    discretion.” Yan Rong Zhao v. Holder, 
    728 F.3d 1144
    , 1147
    (9th Cir. 2013). The BIA abuses its discretion when, among
    other things, it acts “contrary to law.” 
    Id. III. Under
    this court’s precedent, an immigration judge may
    apply the falsus maxim to find that a witness who testified
    falsely about one thing is also not credible about other things.
    Enying Li v. Holder, 
    738 F.3d 1160
    , 1161–62 (9th Cir. 2013).
    The Second Circuit has gone further, holding that the BIA
    may also apply the falsus maxim, relying on an immigration
    judge’s prior adverse credibility determination to make its
    own finding that evidence supporting a motion to reopen is
    not credible. Qin Wen Zheng v. Gonzales, 
    500 F.3d 143
    ,
    146–47 (2d Cir. 2007). The Government would have us
    adopt the Second Circuit’s reasoning and extend our prior
    6                     YANG V. LYNCH
    decision in Enying Li to hold that the BIA (like the
    immigration judge in Enying Li) may use the falsus maxim to
    discredit evidence that has not otherwise been found non-
    credible—here, Yang’s affidavit in support of his motion to
    reopen.
    But unlike an immigration judge, the BIA may not make
    findings of fact. 8 C.F.R. § 1003.1(d)(3)(iv); Rodriguez v.
    Holder, 
    683 F.3d 1164
    , 1173 (9th Cir. 2012). Consistent with
    the BIA’s inability to make factual findings—including
    findings about witnesses’ credibility—“[w]e have long held
    that credibility determinations on motions to reopen are
    inappropriate.” Bhasin v. Gonzales, 
    423 F.3d 977
    , 986 (9th
    Cir. 2005); see also Ghadessi v. INS, 
    797 F.2d 804
    , 806–07
    (9th Cir. 1986). The BIA must instead credit evidence
    supporting a motion to reopen unless that evidence is
    “inherently unbelievable.” Tadevosyan v. Holder, 
    743 F.3d 1250
    , 1256 (9th Cir. 2014); see also Yan Rong Zhao v.
    Holder, 
    728 F.3d 1144
    , 1151 (9th Cir. 2013).
    The falsus maxim cannot render Yang’s affidavit
    “inherently unbelievable,” because the falsus maxim is
    discretionary rather than mandatory. The maxim “allows a
    fact-finder to disbelieve a witness’s entire testimony,” Enying
    
    Li, 738 F.3d at 1163
    (emphasis added), but it does not require
    a fact-finder to disbelieve the witness’s entire testimony.
    Sometimes a witness lies about one thing but tells the truth
    about another thing. Other times a witness lies about
    everything. And only the fact-finder is in a position to decide
    which is which. Here, based on our decision in Enying Li, an
    immigration judge could apply the falsus maxim based on
    Yang’s prior testimony and find that Yang’s new story is not
    credible. For that matter, the immigration judge could find
    that Yang’s new story is not credible for some other reason.
    YANG V. LYNCH                          7
    But neither would an immigration judge be prohibited from
    finding that Yang is being truthful now, notwithstanding the
    conclusion that Yang’s testimony in the prior hearing was not
    credible.
    The idea that the BIA could apply the falsus maxim to
    deny a motion to reopen is in tension with the BIA’s limited
    and deferential role in reviewing immigration judges’
    credibility determinations in the first place. When the BIA
    reviews an immigration judge’s credibility determination, it
    asks only whether the determination was “clearly erroneous.”
    8 C.F.R. § 1003.1(d)(3)(i); see also Vitug v. Holder, 
    723 F.3d 1056
    , 1063–64 (9th Cir. 2013). So when the BIA denies an
    appeal from an adverse credibility determination, it does not
    make its own credibility determination. It merely concludes
    that the witness might not have been credible, i.e., that there
    was enough evidence to support the immigration judge’s
    finding. The BIA, as an appellate body, does not have the
    opportunity to observe the witness’s demeanor, candor, or
    other “ephemeral indicia of credibility.” Jibril v. Gonzales,
    
    423 F.3d 1129
    , 1137 (9th Cir. 2005).
    In holding that the BIA could apply the falsus maxim to
    discredit evidence supporting a motion to reopen, the Second
    Circuit did not acknowledge or analyze these distinctions
    between the role of an immigration judge and the role of the
    BIA. See Qin Wen 
    Zheng, 500 F.3d at 146
    –48. We therefore
    decline the government’s invitation to follow the Second
    Circuit’s decision here.
    IV.
    Our entire panel agrees on this legal rule: the BIA may
    not make adverse credibility determinations (including
    8                         YANG V. LYNCH
    adverse credibility determinations based on the falsus maxim)
    in denying a motion to reopen.1 We part ways with our
    dissenting colleague only over whether the BIA violated that
    rule in this case.
    The BIA’s decision states, in relevant part:
    [T]he respondent has not shown why the
    Board should now accept the statements
    offered in support of the motion as reliable
    where his prior testimony has been found to
    lack credibility, and where the respondent has
    not offered an explanation to overcome the
    Immigration Judge’s adverse credibility
    determination. Accordingly, the respondent’s
    motion to reopen will be denied. See Matter
    of Coelho, 20 I&N Dec. 464, 472–73 (BIA
    1988) [sic] (explaining that a party who seeks
    a remand or to reopen proceedings to pursue
    relief bears a “heavy burden” of proving that
    if proceedings before the Immigration Judge
    were reopened, with all the attendant delays,
    the new evidence would likely change the
    result in the case).
    As we read this passage, the BIA rejected the affidavit Yang
    offered in support of his motion to reopen because the
    immigration judge in removal proceedings had discredited
    Yang’s prior testimony. The BIA required Yang “to
    overcome the Immigration Judge’s adverse credibility
    1
    Another issue on which the entire panel agrees is that the students from
    UC Irvine School of Law, Emily Cross and Ronald Park, are to be
    commended for their high-quality representation of Mr. Yang.
    YANG V. LYNCH                         9
    determination” before it would accept his affidavit as
    “reliable.” And “reliable,” in this case, can only mean
    “credible”: Yang’s affidavit would only be unreliable if Yang
    were lying.
    The BIA’s citation to Matter of Coelho does not change
    the fact that it impermissibly discredited Yang’s affidavit.
    We understand that citation to mean that, after Yang’s
    affidavit was discredited, Yang’s remaining evidence was
    insufficient to justify reopening. But the BIA should instead
    have assessed the sufficiency of Yang’s evidence after taking
    Yang’s affidavit as true.
    V.
    Because the BIA may not make credibility determinations
    on a motion to reopen, the BIA’s decision to discredit Yang’s
    affidavit based on application of the falsus maxim was
    contrary to law, and therefore an abuse of discretion. See Yan
    Rong Zhao v. Holder, 
    728 F.3d 1144
    , 1147 (9th Cir. 2013);
    Mejia v. Ashcroft, 
    298 F.3d 873
    , 878 (9th Cir. 2002).
    Accordingly, we grant Yang’s petition for review, and
    remand for further proceedings consistent with this opinion.
    GRANTED and REMANDED.
    SCHROEDER, Circuit Judge, dissenting:
    While I agree with the majority that the BIA should not
    deny motions to reopen by making adverse credibility
    determinations, I do not agree that the BIA denied this motion
    by doing so. The motion to reopen was premised upon facts
    10                    YANG V. LYNCH
    Petitioner created after the IJ had ordered Petitioner removed.
    He then joined a banned church, sent banned books to his
    wife, and apparently had the authorities notified.
    Assuming the facts are true and he did those things, such
    manufactured facts could not satisfy Petitioner’s heavy
    burden of showing the result should change. This is what the
    BIA concluded, citing Matter of Coelho, 20 I. & N. Dec. 464
    (BIA 1992), a case that did not involve an adverse credibility
    finding, but did involve a failure of proof. The law students
    of U.C. Irvine are to be commended, but I must respectfully
    dissent from the decision that the BIA abused its discretion.