Xiuling Zhang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 20, 2021
• Docket: 15-73619
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 20 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XIULING ZHANG, No. 15-73619

Petitioner, Agency No. A088-324-692

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

Respondent.

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

Submitted October 18, 2021** Pasadena, California

Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District Judge.

Xiuling Zhang petitions for review of the Board of Immigration Appeals’

decision to uphold the denial of her applications for asylum, withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** Having granted the parties’ joint motion to submit on their briefing, the panel decides this case without oral argument. See Fed. R. App. P. 34(f). *** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. removal, and protection under the Convention Against Torture. We deny Zhang’s

petition.

Zhang, a Chinese citizen, testified that she converted to Christianity in 2006.

She came to the United States legally in July 2007 and willingly returned to China

without incident in August 2007. In September 2007, Zhang says she was arrested

in China while attending a house church gathering. According to Zhang, the

Chinese police detained her for seven days and interrogated and physically abused

her. In October 2007, Zhang lawfully re-entered the United States but overstayed

her visa. In February 2008, the Department of Homeland Security initiated removal

proceedings. Zhang conceded removability and filed the applications that are the

subject of this petition. She claims that if she returns to China, she will be arrested

and likely tortured for practicing Christianity.

An immigration judge found Zhang’s testimony not credible and denied her

requests for relief. Zhang appealed, but the Board of Immigration Appeals agreed

with the immigration judge and dismissed her appeal. Zhang filed the present

petition for review of the Board’s dismissal. We have jurisdiction under 8 U.S.C.

§ 1252. The Board issued its own decision but relied on the immigration judge’s

decision, so we review both decisions. See Lai v. Holder, 773 F.3d 966, 970 (9th

Cir. 2014).

Because both the immigration judge’s decision to deny all relief sought by

2 Zhang and the Board’s affirmance of that decision rest on the determination that

Zhang was not credible, “[t]he central question in this case is whether substantial

evidence supports the . . . adverse credibility determination.” Iman v. Barr, 972

F.3d 1058, 1064 (9th Cir. 2020). An applicant’s testimony is not presumed

credible. Id. Instead, the immigration judge can assess credibility by “[c]onsidering

the totality of the circumstances, and all relevant factors,” including “the inherent

plausibility of the applicant’s . . . account” and “the consistency between the

applicant’s . . . written and oral statements.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We

review factual findings, including adverse credibility determinations, for

substantial evidence.” Iman, 972 F.3d at 1064. “The agency’s ‘findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.’” Id. (quoting Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir.

2016)). “[O]nly the most extraordinary circumstances will justify overturning an

adverse credibility determination.” Jin v. Holder, 748 F.3d 959, 964 (9th Cir.

2014) (quoting Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010)).

Zhang must show that the record compels the conclusion that her testimony

was credible but fails to do so. The immigration judge’s adverse credibility

determination was supported by substantial evidence, including inconsistencies

within Zhang’s testimony and between Zhang’s testimony and documents she had

previously filed. For example, Zhang testified that she was unwilling to attend

3 state-sanctioned Christian churches in China in 2006 and 2007 out of fear of future

persecution should the political climate change, but also testified that she first

learned that being Christian in China was dangerous during her September 2007

arrest. The timing of Zhang’s knowledge about the difficulties of practicing

Christianity in China is particularly relevant to the credibility of her claimed fear of

persecution—as the immigration judge reasoned, her argument is substantially

undercut if she knew of the issues facing Chinese Christians (as evidenced by her

reluctance to register as one) and nonetheless willingly returned to China in August

2007. The immigration judge also took the short timeline of Zhang’s arrival,

departure, arrest, and return to the United States as evidence of the implausibility

of Zhang’s testimony about her motivations to come to the United States.

Zhang characterizes the immigration judge’s conclusions about her

knowledge of the dangers of Christianity as speculative. She asserts that the

alleged discrepancies are explained by her testimony that she was nervous, really

wanted to come to the United States, and had not reviewed the documents in

question. And she argues that the testimony of her prior abuse and the background

reports on China she submitted show that it is likely that she will be tortured if she

returns. But these competing statements do not compel the conclusion that her

testimony was credible and that the immigration judge erred in concluding

otherwise. Accordingly, this court must uphold the Board’s determination.

4 The petition for review is DENIED.