Zhibin Zhang v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHIBIN ZHANG, No. 15-72255
Petitioner, Agency No.
A096-253-567
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 15, 2019**
Pasadena, California
Before: NGUYEN and MILLER, Circuit Judges, and VITALIANO,*** District
Judge.
Petitioner Zhibin Zhang, a native and citizen of the People’s Republic of
*
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 Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
China, seeks review of a Board of Immigration Appeals (BIA) decision affirming
the decision of an immigration judge (IJ) denying his application for asylum.1 Our
jurisdiction rests on 8 U.S.C. § 1252.
“[W]hen ‘the BIA adopts the decision of the IJ, we review the IJ’s decision
as if it were that of the BIA.’” Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.
2005) (en banc) (quoting Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004)).
We review factual findings, including adverse credibility determinations, for
substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
“Under the substantial evidence test, we must uphold the IJ’s findings, ‘if
supported by reasonable, substantial and probative evidence on the record
considered as a whole.’” Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010)
(quoting Elias-Zacarias, 502 U.S. at 481). In pre-REAL ID Act cases, such as this
one, the reasons relied upon to support an adverse credibility determination must
“strike at the heart of” the petitioner’s claim. Li v. Ashcroft, 378 F.3d 959, 964
(9th Cir. 2004).
In adopting the IJ’s decision, the BIA concluded that Zhang failed to present
credible evidence that his sterilization was involuntary. While “[w]e do not accept
blindly an IJ’s conclusion that a petitioner is not credible,” the record makes
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The IJ also denied Zhang’s claims for withholding of removal and protection
under the Convention Against Torture, but he forfeited these claims by failing to
brief them to the BIA.
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apparent that “the reasoning employed by the IJ” was not “fatally flawed” and,
consequently, does not warrant reversal. Aguilera-Cota v. INS, 914 F.2d 1375,
1381 (9th Cir. 1990). The IJ properly found that the “heart” of Zhang’s application
expanded beyond the purported sterilization to encompass his claims regarding his
wife’s pregnancy, that his wife was required to endure the insertion of a second
IUD following her second but illicit pregnancy, and the resulting fines Zhang was
forced to pay and how the payment of those fines was continually demanded by
local Chinese government officials. The IJ carefully differentiated between, on the
one hand, the inconsistencies he found to be minor and likely caused by the
passage of time, and on the other hand, the inconsistencies that struck at the heart
of Zhang’s forced sterilization claim and led to the adverse credibility finding.
In sum, the IJ identified “specific, cogent reason[s]” for the adverse
credibility finding, Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987), which
struck at the heart of Zhang’s claim. The adverse credibility finding made against
Zhang by the IJ and BIA is supported by substantial evidence, and, in the absence
of other evidence, the BIA did not err in affirming the IJ’s rejection of Zhang’s
application.
PETITION DENIED.
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