Kexin Zhao v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2019
• Docket: 17-71229
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KEXIN ZHAO; YUE NAN, No. 17-71229

Petitioners, Agency Nos. A205-779-982 A206-997-265 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 14, 2019** San Francisco, California

Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.

Petitioner Kexin Zhao is a 24-year-old native and citizen of China.1 She

* 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 Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. 1 Zhao’s husband, Yue Nan, is also a Chinese national and is a derivative beneficiary on Zhao’s asylum application. applied for asylum, withholding of removal, and protection pursuant to the

Convention Against Torture on grounds that she had been forced to undergo an

abortion. The BIA denied her claims on the basis of an adverse credibility

determination.

“When the BIA conducts its own review of the evidence and law rather than

adopting the IJ’s decision, our review ‘is limited to the BIA’s decision, except to

the extent that the IJ’s opinion is expressly adopted.’” Shrestha v. Holder, 590

F.3d 1034, 1039 (9th Cir. 2010) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957

(9th Cir. 2006)). We examine the BIA’s “legal conclusions de novo and its factual

findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,

1059 (9th Cir. 2017) (en banc) (citations omitted).

Under the REAL ID Act, which governs Zhao’s application, credibility

determinations are findings of fact, which are “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Singh v. Lynch, 802

F.3d 972, 974 (9th Cir. 2015) (citing 8 U.S.C. § 1252(b)(4)(B)). “Only the most

extraordinary circumstances will justify overturning an adverse credibility

determination.” Shrestha, 590 F.3d at 1041.

Inconsistencies need not go to the heart of an application to form the basis of

an adverse credibility determination but must be considered in light of the totality

of the circumstances, including the petitioner’s explanation for a perceived

2 inconsistency. Id. at 1042–44. “[A]n adverse credibility determination cannot be

based on complete speculation and conjecture,” Singh, 802 F.3d at 977, but an IJ

may base a credibility determination on the “inherent plausibility of the applicant’s

or witness’s account,” 8 U.S.C. § 1158(b)(1)(B)(iii).

The BIA permissibly concluded that Zhao’s inconsistent statements about

her purpose for coming to the United States undermined her credibility. Zhao

testified that she came to the United States with her mother for vacation. But

Zhao’s asylum application suggested that she wanted to leave China because of her

forced abortion. Zhao’s desire to leave the place where she was harmed is not

necessarily inconsistent with travelling to the United States for the purpose of a

vacation. However, the BIA’s contrary interpretation is not unreasonable,

especially in light of Zhao’s inability to remember whether she received her visa

before or after her abortion.

The BIA also based its adverse credibility determination on an inconsistency

in Zhao’s testimony and supporting documents about when she and her mother

first learned about asylum. Zhao testified that she and her mother first learned

about asylum when they arrived in the United States. But a document that Zhao

filed in support of her asylum application was notarized before she left China.

Zhao testified that she did not participate in the notarization and could not explain

why the document had been prepared before she and her mother arrived in the

3 United States. The BIA reasonably rejected this explanation as insufficient;

Zhao’s lack of participation in the notarization does not explain why asylum

application documents would have been prepared before she and her mother

learned about asylum. Zhao contends that she should be allowed to call her mother

to explain what happened. But Zhao had the opportunity to call her mother, who

was in the United States, at her hearing; the IJ even asked Zhao why she had not

called her mother.

Ren v. Holder, 648 F.3d 1079, 1090 (9th Cir. 2011) is not on point. Unlike

the petitioner in Ren, Zhao was not faulted for lack of corroboration. Instead, the

BIA did not believe her account—including her attempts to explain the

discrepancies—because it was inconsistent and implausible.

Zhao also challenges the agency’s denial of her withholding of removal

claims on appeal. The BIA properly concluded that in the absence of credible

testimony, Zhao had not established her eligibility for withholding of removal. See

Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). Zhao does not

challenge the BIA’s denial of her claim for protection under the Convention

Against Torture.

DENIED.