Yunxia Zhou v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YUNXIA ZHOU, No. 15-73309
Petitioner, Agency No. A089-722-973
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 17, 2022
Las Vegas, Nevada
Before: D.M. FISHER,** BENNETT, and KOH, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge BENNETT.
Yunxia Zhou, a native and citizen of China, seeks review of the Board of
Immigration Appeals’ (BIA) order affirming the denial of her application for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
asylum, and protection under the Convention Against Torture (CAT).1 Zhou
contends that she fears police retribution if she returns to China because of her
previous protest of the country’s coercive family planning practices. The
immigration judge (IJ) found Zhou not credible, and the BIA upheld that adverse
credibility determination. We have jurisdiction under 8 U.S.C. § 1252(a). We grant
the petition and remand for further proceedings.
The IJ cited six grounds for determining that Zhou was not credible. Of
those six grounds, the BIA relied on three in affirming the IJ’s credibility
determination—two internal inconsistencies and one omission of corroborating
evidence. We conclude that only one of the inconsistencies is supported by
substantial evidence and that the corroborating evidence should not have been
evaluated as part of the initial credibility determination.
The IJ and BIA found Zhou’s testimony that she went to the Chinese
consulate in Chicago in 2009 to get a new passport “undercut[] her claim of a fear
of persecution upon her return to China.” Substantial evidence supports this
conclusion. Zhou explained that she visited the consulate because she needed
identification to get a job and support her daughter. Although this explanation is
plausible, Zhou testified in 2012 that she had not worked. Zhou also argues that the
1
Zhou applied for withholding of removal but waives her appeal on the denial of
that application.
2
Chinese government was already aware of her travel to the United States. But the
record does not contain any evidence that the Chinese government was aware Zhou
was still in the United States past the expiration of her visa. The IJ and BIA were,
thus, well within the bounds of reason to conclude Zhou’s desire for a job could
not reasonably outweigh her fear of returning to a persecuting country.
Substantial evidence, however, does not support the IJ and BIA’s conclusion
that Zhou’s willingness to return to China after several trips outside the country in
2002 after her alleged forced abortion “undermines the credibility” of her asylum
claim. The BIA focuses on Zhou’s willingness to return to China after having
already suffered a forced abortion, but Zhou repeatedly stated that her arrest and
beating were her breaking point. First, Zhou testified that she did not consider
leaving China until she was arrested and beaten in 2007 for protesting China’s
coercive family planning practices. Her protest occurred shortly after discovering,
in 2007, that officials had secretly inserted contraception in her body. Second,
Zhou’s asylum application is consistent with her testimony that her arrest and
beating prompted her exit from China.
Finally, the IJ and BIA should not have relied on Zhou’s failure to present
her daughter as a witness as part of the initial credibility determination. An asylum
applicant may establish eligibility on her credible testimony alone, without other
evidentiary corroboration. 8 U.S.C. § 1158(b)(1)(B)(ii). Under the REAL ID Act,
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an IJ determines a petitioner’s credibility by “[c]onsidering the totality of the
circumstances, and all relevant factors.” Id. § 1158(b)(1)(B)(iii).2 If the IJ
determines the applicant is “otherwise credible,” the Court may still require the
applicant to provide corroborating evidence to sustain her burden. Id.
§ 1158(b)(1)(B)(ii). But the IJ cannot use the lack of corroborating evidence
initially as a ground for saying the applicant is not credible. See Ren v. Holder, 648
F.3d 1079, 1093 (9th Cir. 2011) (“[T]he IJ must determine whether an applicant’s
credible testimony alone meets the applicant’s burden of proof. If it does, no
corroborative evidence is necessary. If a credible applicant has not yet met his
burden of proof, then the IJ may require corroborative evidence.”) (emphasis
added).
We set aside the adverse credibility finding. This Court has recently
explained that adverse credibility determinations “must be reviewed[] based on the
‘totality of the circumstances and all relevant factors,’ not a single factor.” Alam v.
Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc) (quoting 8 U.S.C. §
1158(b)(1)(B)(iii)). We therefore remand the asylum claim to the BIA for
reconsideration in light of this standard. See id. at 1135 (“[T]he totality of the
circumstances[] and all relevant factors.” (emphasis omitted)). As part of any
2
The relevant factors include the applicant’s demeanor, candor, responsiveness,
plausibility of her account, consistency within statements and between statements,
and inaccuracies or falsehoods. 8 U.S.C. § 1158(b)(1)(B)(iii).
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credibility determination on remand, the BIA should address Zhou’s explanation
for returning to China in 2002 after her trips abroad—namely, that she did not
consider leaving the country until after her arrest and beating in 2007.3
If the BIA is not satisfied that Zhou has sustained her burden of proof based
on her credible testimony alone, it may then require Zhou to provide corroborating
evidence. But it first must give her notice and the opportunity to provide that
evidence. Ren v. Holder, 648 F.3d 1079, 1090 (9th Cir. 2011). If Zhou still fails to
produce “non-duplicative, material, easily available corroborating evidence and
provides no credible explanation for such failure,” the BIA may then consider that
in a renewed credibility determination. Sidhu v. I.N.S., 220 F.3d 1085, 1092 (9th
Cir. 2000).4
3
We note that for an asylum applicant to sustain her burden through
uncorroborated testimony, the testimony not only must be credible but must also be
persuasive and refer to facts sufficient to demonstrate refugee status. 8 U.S.C.
§ 1158(b)(1)(B)(ii); Aden v. Holder, 589 F.3d 1040, 1044 (9th Cir. 2009). Here,
the BIA only addressed Zhou’s credibility. However, on remand, the agency could
avoid a credibility determination if it finds that Zhou’s testimony is not persuasive
or not does not refer to facts sufficient to demonstrate that she is a refugee.
4
The dissent criticizes the majority for intruding upon the agency’s domain by
“barring the agency from considering a relevant factor.” Not so. We are bound by
Ren’s clear holding that “[t]he IJ must determine whether an applicant’s credible
testimony alone meets the applicant’s burden of proof.” Ren, 648 F.3d at 1093. The
BIA is welcome to request corroborating evidence, give the applicant the notice
and opportunity to present that evidence, and draw conclusions from the
applicant’s presentation or omission of that evidence. But such a step is only
necessary if, as the text of the statute dictates, the applicant’s credible testimony
alone is not enough.
5
Because the credibility determination also infected the BIA’s CAT analysis,
the BIA must reevaluate that claim on remand.
PETITION FOR REVIEW GRANTED; REMANDED.
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FILED
Yunxia Zhou v. Merrick B. Garland, No. 15-73309 MAY 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BENNETT, Circuit Judge, concurring in part and dissenting in part:
The agency originally could have relied on Zhou’s failure to provide
corroborating evidence as an adverse credibility ground, had it provided her notice
and the opportunity to respond. It should be able to do that on remand, as such a
failure could be relevant to the agency’s credibility determination. Because the
majority erroneously predetermines the issue, and bars the agency from exercising
its right under the REAL ID Act to base its credibility determine on any relevant
factor, I respectfully dissent from that portion of the majority disposition.
In Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000), we held that the agency may
consider lack of corroboration as an adverse credibility ground so long as these
requirements are met: (1) “[t]he petitioner must be given an opportunity at his IJ
hearing to explain his failure to produce material corroborating evidence”; (2) “the
corroborating evidence must be both material to the petitioner’s asylum claim and
non-duplicative of other corroboration”; and (3) “the evidence must be easily
available.” Id. at 1091. Thus, under Sidhu, the failure to provide corroborating
evidence can be used as an adverse credibility factor.
Further, under the REAL ID Act, the agency may base a credibility
determination on any “relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). As we
recognized in Sidhu, the failure to provide easily available corroborating evidence
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can detract from a petitioner’s credibility. 220 F.3d at 1091 (“The IJ and BIA
might well have inferred that Petitioner knew that his father could not corroborate
Petitioner’s testimony, and chose not to call him as a witness for that reason. Such
an inference would not have been unreasonable.”). So the failure to provide
corroborating evidence can be a “relevant factor,” which the agency has the
absolute right to consider under the REAL ID Act in assessing credibility
(provided it complies with Sidhu).
I disagree with the majority that Ren v. Holder, 648 F.3d 1079 (9th Cir.
2011), compels a contrary result. I see nothing in Ren suggesting that the agency is
barred from considering lack of corroboration as an adverse credibility ground
under the REAL ID Act, provided it satisfies the requirements in Sidhu. Indeed,
Ren does not address whether the agency may use lack of corroboration in its
initial credibility determination because, there, we explained that the agency only
relied on inconsistencies and implausibilities as the basis for its adverse credibility
determination. Id. at 1083, 1085.
But the majority’s disposition suffers from a more fundamental problem—it
“intrude[s] upon the domain which Congress has exclusively entrusted to an
administrative agency.” INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)
(quoting SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)). Congress entrusted to
the agency the authority to make adverse credibility determinations, and in doing
2
so, it expressly gave the agency the right to consider any relevant factor. 8 U.S.C.
§ 1158(b)(1)(B)(iii). By barring the agency from considering a relevant factor, the
majority has intruded on the agency’s statutory authority.
For these reasons, I respectfully dissent, in part.
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