Qing Zhang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2022
• Docket: 20-72299
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

QING ZHANG, No. 20-72299

Petitioner, Agency No. A098-753-756

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 16, 2022** Pasadena, California

Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,*** District Judge.

Qing Zhang, a native and citizen of the People’s Republic of China

(“China”), petitions for review of the Board of Immigration Appeals’ (“BIA”)

* 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 Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. decision affirming the Immigration Judge’s (“IJ”) denial of Zhang’s petition to

remove the conditions on her residence, under 8 C.F.R. § 216.4. Because the BIA

cited Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994), and provided its own

review of the evidence and law, we review the decisions of both the BIA and IJ.

Aguilar Fermin v. Barr, 958 F.3d 887, 891 (9th Cir.), cert. denied sub nom. Fermin

v. Barr, 141 S. Ct. 664 (2020). We review adverse credibility determinations for

substantial evidence. Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). We also

review for substantial evidence whether a petitioner “entered into [a] qualifying

marriage in good faith.” Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004).

As the parties are familiar with the facts, we do not recount them here. We deny

the petition for review.

In removal proceedings, “the totality of the circumstances” is relevant to a

credibility determination, including consistency between the petitioner’s

statements and other evidence. 8 U.S.C. § 1229a(c)(4)(C); Alam v. Garland, 11

F.4th 1133, 1135-37 (9th Cir. 2021) (en banc). IJs must examine the record as a

whole, citing “specific instances in the record that form the basis of the adverse

credibility finding,” Tamang v. Holder, 598 F.3d 1083, 1093-94 (9th Cir. 2010),

and considering any inconsistencies in light of all the evidence presented, see

Garcia v. Holder, 749 F.3d 785, 790-91 (9th Cir. 2014).

2 The IJ found, and the BIA agreed, that neither Zhang nor her U.S. citizen

husband, Kevin Harold, was a credible witness. In making these determinations,

the IJ properly considered the totality of the circumstances, see Alam, 11 F.4th at

1135, and cited specific examples supporting the adverse credibility finding, see

Tamang, 598 F.3d at 1093-94. As the IJ noted, the record is replete with moments

when Zhang and Harold gave contradictory answers about their personal lives, did

not know fundamental information about one another—including, for example,

whether Zhang had children—and apparently attempted to conceal Zhang’s

ongoing relationship with her first husband. These numerous and significant

inconsistencies throughout the record provide substantial evidence supporting the

adverse credibility determinations. See Iman, 972 F.3d at 1064.

Contrary to Zhang’s assertions, the IJ considered Zhang’s and Harold’s

explanations for some of the underlying inconsistencies, see Manes v. Sessions,

875 F.3d 1261, 1263 (9th Cir. 2017) (per curiam), but permissibly chose to reject

the explanations in making the credibility determinations, see Zamanov v. Holder,

649 F.3d 969, 974 (9th Cir. 2011). In addition to finding implausible their

explanations for various inconsistent statements about travel, employment, and

families, the IJ also considered and rejected the corroborating documentary

evidence, in part because it was created either immediately before or after the

initial denial of her application in 2011, calling into question its credibility. Zhang

3 contends the IJ did not properly consider her explanations, and indeed proffers

additional ones to this court, but the IJ was not required to accept them as true in

assessing her credibility. See id.

We also reject Zhang’s argument that the IJ improperly denied her petition

to remove conditions on her residence. If a qualifying marriage was “entered into

for the purpose of procuring an alien’s admission as an immigrant,” a petition to

remove conditions on residence will be denied. 8 U.S.C. § 1186a(b)(1)(A)(i); see

also 8 C.F.R. § 216.4(a)(5), (c). To determine whether a marriage was entered into

in good faith or for the primary purpose of procuring immigration benefits, the

“sole inquiry . . . is whether the parties intended to establish a life together at the

time of marriage.” Damon, 360 F.3d at 1089. Zhang produced no objective

documentary evidence or witnesses showing her intent at the time of marriage, see

id. at 1088-89, and because the IJ found Zhang’s and Harold’s statements not

credible, little evidence supports a good faith determination.

Rather, substantial evidence supports the determination that Zhang did not

enter her marriage in good faith. See id. at 1089. The record reflects that Zhang

had an ongoing relationship with her first husband, that Zhang and Harold likely

did not share a residence, and that the two did not know basic information about

each other, even years into the marriage. Their statements and inconsistencies

show that either Harold and Zhang did not know each other at all after many years

4 of marriage, or that they failed to tell the whole truth in their interviews, both of

which support the IJ’s determination that they did not enter the marriage in good

faith. See also Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1148-49 (9th Cir.

2005) (permitting an IJ to consider actions after marriage “to the extent that those

actions bear on the subjective intent of the parties at the time they were married”).

PETITION FOR REVIEW DENIED.