Daohua Yu v. Loretta E. Lynch , 637 F. App'x 359 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAOHUA YU, No. 11-70987
Petitioner, Agency No. A099-717-691
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2016**
University of Hawaii Manoa, Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
The facts and procedure of this case are familiar to the parties, and we do not
repeat them here. For the reasons below, we deny Yu’s petition for review.
First, Yu was not denied due process by the Immigration Judge’s reliance on
the asylum officer’s notes, even though the asylum officer was not available for
*
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).
cross-examination. Due process requires that the government “make a reasonable
effort . . . to afford the alien a reasonable opportunity to confront the witnesses
against him.” Cunanan v. INS, 856 F.2d 1373, 1375 (9th Cir. 1988). That
occurred here when the IJ continued the case so that the asylum officer could be
found, the government tried to contact him, and was then informed that the asylum
officer had retired and could not be located. Yu’s reliance on Cunanan and
Cinapian v. Holder, 567 F.3d 1067, 1077 (9th Cir. 2009), is unavailing. In
Cunanan, we noted that the government “failed to make any reasonable effort to
produce” a hearsay declarant whose testimony was used against the petitioner. 856
F.2d at 1375 (emphasis added). And in Cinapian we noted that the proper remedy
when evidence was introduced of which the petitioner was unaware was to grant a
continuance. 567 F.3d at 1076–77. Here, the government made efforts to produce
the asylum officer, and a continuance was granted.
Second, substantial evidence supports the IJ’s adverse credibility finding.
See 8 U.S.C. § 1252(b)(4)(B); Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009).
It appears Yu initially told the asylum officer he had been detained, providing a
detailed description of a 15-day detention. But before the IJ, Yu changed course
and said that all he told the asylum officer was that he was threatened with
2
detention. That inconsistency was sufficient to support an adverse credibility
finding.
Petition DENIED.
3