Yanbo Zhu v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2020
• Docket: 17-72366
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YANBO ZHU; HAIJIU JING; YUCHAO No. 17-72366 JING,

Petitioners, Agency No. A200−266−535 A200−266−536 v. A200−266−537

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Submitted October 20, 2020** Honolulu, Hawaii

Before: WALLACE, BEA, and BENNETT, Circuit Judges.

Petitioner Yanbo Zhu, her spouse, and her child, natives and citizens of the

People’s Republic of China, seek review of the decision of the Board of

Immigration Appeals (“BIA”) denying asylum, withholding of removal, and

* 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). protection under the Convention Against Torture (“CAT”).1 Zhu also seeks review

of the BIA’s adverse credibility determination. We have jurisdiction under 8

U.S.C. § 1252 and review for substantial evidence “denials of asylum, withholding

of removal, and CAT relief” as well as “factual findings, including adverse

credibility determinations.” Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir.

2017) (citations omitted). To reverse, we “must determine that the evidence not

only supports a contrary conclusion, but compels it.” Silva-Pereira v. Lynch, 827

F.3d 1176, 1184 (9th Cir. 2016) (citation omitted).

Because “the BIA reviewed the IJ’s credibility-based decision for clear error

and ‘relied upon the IJ’s opinion as a statement of reasons’ but ‘did not merely

provide a boilerplate opinion,’” we “review here the reasons explicitly identified

by the BIA, and then examine the reasoning articulated in the IJ’s . . . decision in

support of those reasons.” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014)

(quoting Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)).

Here, the IJ identified, and the BIA relied on, specific instances of

inconsistencies, lack of detail, and omissions in Zhu’s testimony. See Shrestha v.

Holder, 590 F.3d 1034, 1040, 1044 (9th Cir. 2010) (observing that inconsistency,

candor, and lack of detail are all relevant factors under the totality of the

1 Zhu’s spouse and child have a derivative asylum claim through Zhu, and therefore their claims rise or fall with hers. See 8 U.S.C. § 1158(b)(3). 2 circumstances approach). For example, the IJ found an inconsistency between

Zhu’s testimony and the evidentiary record with respect to the removal of the

allegedly forcibly inserted intrauterine device (“IUD”). Zhu testified that she had

experienced severe side effects and had been self-medicating with pain relievers

following the IUD’s insertion, but, the record shows that she waited approximately

nine months after entry into the United States to have the IUD removed. When

asked about the delay, Zhu was unable to provide an explanation. Nothing in the

record compels a conclusion that the adverse credibility finding was erroneous.

While Zhu argues that there are alternative explanations for the

inconsistencies, “the IJ adequately identified problems with [Zhu]’s testimony . . .

and we are not compelled to conclude that [Zhu] was credible.”2 Wang, 861 F.3d at

1008; see also Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011) (noting that

plausible alternative explanations for inconsistencies do “not compel the finding

that the IJ’s unwillingness to believe [the petitioner’s] explanation . . . was

erroneous”).

Moreover, Zhu’s contention that the BIA’s affirmance of the IJ’s decision

2 Because we find the BIA’s conclusions were supported by substantial evidence, we need not consider whether the decision can be upheld on the basis that Zhu failed to produce adequate corroborative evidence. See Bhattarai v. Lynch, 835 F.3d 1037, 1046 (9th Cir. 2016) (considering corroborative evidence only after finding the adverse credibility determination was not supported by substantial evidence). 3 was erroneous based on the lack of notice given to her to produce the second

medical booklet is unavailing. In evaluating whether Zhu was coerced into a forced

abortion, the IJ reviewed all the medical records Zhu submitted, and when the IJ

asked Zhu about the booklet Zhu did not provide, the IJ found Zhu’s explanation

insufficient—that her sister could not locate the second medical booklet that

documented medical appointments around her pregnancy. Neither the IJ nor the

BIA were obligated to give Zhu notice that this specific booklet be produced given

our determination that the non-corroboration grounds for the adverse credibility

determination are supported by substantial evidence. See Bhattarai, 835 F.3d at

1043 (“The notice-and-opportunity requirement applies when the applicant’s

testimony is ‘otherwise credible.’” (citation omitted)).

Therefore, because we are not compelled to reverse the IJ’s finding that Zhu

was not credible or that her testimony was not sufficiently corroborated, Zhu’s

asylum application fails. Because Zhu bases her withholding of removal and CAT

claims on a finding that she was credible, these claims also fail. Zhu’s failure to

meet her burden of proof for her asylum claim means that she “necessarily fails to

carry the greater burden of establishing eligibility for withholding of removal.” See

Wang, 861 F.3d at 1009. In addition, Zhu’s CAT claim also fails because, without

credible testimony, the remaining evidence does not compel a finding of clear

probability of torture upon her return to China. See id.

4 The petition for review is DENIED.