Aiying Zhao v. Jefferson Sessions , 697 F. App'x 552 ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       SEP 21 2017
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    AIYING ZHAO,                                        No. 14-72632
    Petitioner,
    Agency No. A099-402-288
    v.
    JEFFERSON SESSIONS III, Attorney                    MEMORANDUM*
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted August 28, 2017
    Pasadena, California
    *
    This disposition is not appropriate for publication and is not precedent except as
    provided by Ninth Circuit Rule 36-3.
    Before: W. FLETCHER and IKUTA, Circuit Judges, and FREUDENTHAL,** Chief
    District Judge
    Petitioner Aiying Zhao, a 59-year-old female, native and citizen of the
    People’s Republic of China, petitions for review of the Board of Immigration
    Appeals’ (BIA) order dismissing her appeal from an immigration judge’s decision
    denying her application for withholding of removal under 
    8 U.S.C. § 1231
    (b)(3).
    We have jurisdiction under 
    8 U.S.C. § 1252
    , and we affirm.
    We conclude substantial evidence supports the administrative factual
    findings, including the adverse credibility findings, of the Immigration Judge (IJ). 
    8 U.S.C. § 1252
    (b)(4)(B); Melkonian v. Ashcroft, 
    320 F.3d 1061
    , 1065 (9th Cir. 2003).
    The IJ properly considered the “totality of the circumstances” standard governing
    adverse credibility determinations under the REAL ID Act. Shrestha v. Holder, 
    590 F.3d 1034
    , 1040 (9th Cir. 2010); 
    8 U.S.C. §§ 1158
    (b)(1)(B)(iii) (asylum);
    1231(b)(3)(C) (adopting the standard in 
    8 U.S.C. § 1158
    (b)(1)(B) for withholding
    of removal). The IJ’s reasons for the adverse credibility determination are specific,
    cogent and supported by the evidence, including consideration of candor,
    plausibility, consistency and fabrication. Zhao fails to show evidence in the record
    which compels a contrary result. Farah v. Ashcroft, 
    348 F.3d 1153
    , 1156 (9th Cir.
    2003) (citing Garrovillas v. INS, 
    156 F.3d 1010
    , 1015-16 (9th Cir. 1998)).
    **
    The Honorable Nancy D. Freudenthal, Chief United States District Judge for the
    District of Wyoming, sitting by designation.
    2
    We reject Zhao’s argument that the IJ erred in the weight given to an earlier
    frivolous asylum application and a fabricated “Home Letter” purportedly written by
    Zhao’s daughter. Zhao’s willingness to engage in, enable or perpetuate material
    falsehoods before the very tribunal charged with adjudicating requests for asylum
    and related relief goes to the heart of her credibility. We find no error by the IJ in
    considering this as a principle reason to find Zhao not credible.
    We also reject Zhao’s argument that she was confused by the line of questions
    about her ability to conceive, and the IJ erred in considering this testimony to be
    evasive, internally inconsistent and implausible. The initial question about whether
    Zhao could become pregnant was a clear question and the IJ did not err in
    considering Zhao’s response evasive and eventually inconsistent. We further reject
    Zhao’s argument that the IJ erred in considering her continued presence in China as
    a factor detracting from her credibility, in that she adequately explained her need to
    remain in China to care for her daughter.
    Finally, we reject Zhao’s argument that the IJ erred in giving her abortion
    certificate diminished weight, in that it is unreasonable to expect a repressive
    government to provide evidence of its own persecution by way of attesting that the
    abortion was forced. Considering Zhao previously submitted the “Home Letter”,
    which she later said was false, the IJ committed no error.
    3
    It appears that both the IJ and BIA improperly determined Zhao failed to prove
    future prosecution. The IJ found Zhao’s testimony conflicted with her claim that she
    would face future persecution when she returned to China, and denied her petition
    in part because she failed to demonstrate the same. In Tang v. Gonzales, 
    489 F.3d 987
    , 992 (9th Cir. 2007), we extended Qu v. Gonzales, 
    399 F.3d 1195
     (9th Cir.
    2005), to victims of forced abortion, holding that they must be granted withholding
    of removal on the same terms as victims of forced sterilization. In Qu, we held that
    victims of forced sterilization need not show future persecution; they are entitled to
    withholding of removal as a matter of law. Qu, 
    399 F.3d at 1203
    . However, this
    error is harmless because the IJ properly found Zhao failed to prove she was subject
    to a forced abortion.
    In sum, the BIA’s conclusion that the IJ properly denied Zhao withholding of
    removal is supported by substantial evidence. The adverse credibility determination
    by the IJ relied on specifically-identified factors explicitly permitted by the REAL
    ID Act. Based on the totality of circumstances, it was a reasonable adverse credibility
    determination, grounded in the record.        Absent Zhao’s discredited testimony,
    combined with the diminished weight given to Zhao’s corroborating evidence, there
    is no objective evidence that Zhao was forced to abort a pregnancy.
    PETITION FOR REVIEW DENIED.
    4
    FILED
    Zhao v. Sessions, No. 14-72632
    SEP 21 2017
    Ikuta, Circuit Judge, concurring in the judgment:
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    Zhao’s only claim on appeal is that the IJ erred in denying her request for
    withholding of removal under the Immigration and Nationality Act (INA), 
    8 U.S.C. § 1231
    (b)(3). But Zhao is not eligible for such relief, and we should deny
    her petition without reaching the merits of her claims.
    Under § 1158(d)(6), “[i]f the Attorney General determines that an alien has
    knowingly made a frivolous application for asylum” and the alien has received
    timely notice “of the privilege of being represented by counsel and of the
    consequences . . . of knowingly filing a frivolous application for asylum,” id.
    § 1158(d)(4), then “the alien shall be permanently ineligible for any benefits under
    this chapter [Chapter 12 of Title 8, §§ 1101-1537], effective as of the date of a final
    determination on such application,” id. § 1158(d)(6) (emphasis added). The term
    “benefits” is not defined in the INA, so we consider the dictionary definition of the
    term: “something that guards, aids or promotes well-being.” Webster's Third New
    International Dictionary 1560 (2002). A determination that a deportable alien may
    not be removed to a specified country because “the alien’s life or freedom would
    be threatened in that country,” 
    8 U.S.C. § 1231
    (b)(3)(A), constitutes a “benefit”
    under this definition. Indeed, even the BIA has acknowledged that withholding of
    removal constitutes a “benefit” under the INA, see Matter of Y-L-, 
    24 I. & N. Dec. 151
    , 155 (BIA 2007) (stating that filing a frivolous application makes an alien
    ineligible “for any benefits under the Immigration and Nationality Act except for
    withholding of removal.”).1 Because this “benefit” is in Chapter 12 of the United
    States Code, an alien is “permanently ineligible” for withholding of removal after
    filing a frivolous asylum application.
    Here, there is no dispute that Zhao filed a frivolous application for asylum
    after receiving a timely notice as required under § 1158(d)(4). Therefore, she is
    “permanently ineligible for any benefits” under the INA, including withholding
    under § 1231(b).
    In reaching the merits of Zhao’s withholding claim, the BIA applied an
    immigration regulation that states that “a finding that an alien filed a frivolous
    asylum application shall not preclude the alien from seeking withholding of
    removal.” 
    8 C.F.R. § 1208.20
    ; see Matter of Y-L-, 24 I. & N. Dec. at 155. If this
    regulation referred to withholding of removal as set forth in § 1231(b)(3), it would
    be contrary to the plain language of § 1158(d)(6) and not entitled to deference. See
    1
    At oral argument, counsel for the government argued that withholding of
    removal under the INA is not a “benefit,” but a “protection.” Given counsel’s
    concession that the government has not offered this interpretation in any regulation
    or guidance document, it deserves no weight. Moreover, because a “protection” is
    likewise a “benefit” under the INA, counsel’s proffer of the word “protection” to
    describe withholding of removal does not persuasively explain how withholding is
    exempt from the frivolous application bar.
    2
    Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 
    467 U.S. 837
    , 843–44 (1984).
    But a better interpretation is to read “withholding of removal” in § 1208.20 as
    referring to withholding of removal under the Convention Against Torture (CAT),
    
    8 C.F.R. § 1208.16
    (d)(2). The history of § 1208.20 supports this interpretation.
    Before 1999, the predecessor to § 1208.20 focused on the definition of a frivolous
    asylum application and did not address withholding of removal. See id. § 208.18
    (1999). In 1999, the Department of Justice (DOJ) promulgated new regulations to
    implement the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
    105-277, 
    112 Stat. 2681
    , which required the DOJ to align U.S. immigration law
    with CAT’s requirements. As part of this project, the DOJ added the current
    language addressing withholding of removal. See 
    8 C.F.R. § 208.19
     (2000). This
    language incorporates U.S. obligations under CAT by enabling applicants who
    have filed frivolous asylum applications to seek withholding of removal under
    CAT. Because this reading of the regulation makes sense and does not conflict
    with § 1158(d)(6), the BIA erred in applying the regulation to withholding under §
    1232(b).
    Given that “the proper role of the judiciary” is “to apply, not amend, the
    work of the People's representatives,” Henson v. Santander Consumer USA Inc.,
    
    137 S. Ct. 1718
    , 1726 (2017), we should interpret the plain language of
    3
    § 1158(d)(6) as precluding a grant of withholding under § 1232(b) to an alien who
    has filed a frivolous application. Because Zhao filed a frivolous asylum
    application here, we are barred from granting Zhao’s claim for withholding of
    removal. I would therefore deny Zhao’s petition for review without reaching the
    merits.
    4