Daohua Yu v. Loretta E. Lynch

Ninth Circuit

Daohua Yu v. Loretta E. Lynch

637 F. App'x 359

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 18, 2016

Docket11-70987

StatusUnpublished

This text of 637 F. App'x 359 (Daohua Yu v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Daohua Yu v. Loretta E. Lynch, 637 F. App'x 359 (9th Cir. 2016).

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Opinion

MEMORANDUM **

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 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 detention. That inconsistency was sufficient to support an adverse credibility finding.

Petition DENIED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

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 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 detention. That inconsistency was sufficient to support an adverse credibility finding.

Petition DENIED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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637 F. App'x 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daohua-yu-v-loretta-e-lynch-ca9-2016.

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