Yanmin Zhao v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2020
• Docket: 18-70930
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YANMIN ZHAO, No. 18-70930

Petitioner, Agency No. A201-209-408

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 6, 2020** Honolulu, Hawaii

Before: FARRIS, McKEOWN, and BADE, Circuit Judges.

Petitioner Yanmin Zhao ("Zhao"), a native of the Republic of China, seeks

review of the Board of Immigration Appeals (“BIA”) decision affirming the denial

of her asylum and Convention Against Torture (“CAT”) claims. The parties are

* 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). familiar with the facts and procedural history, so we do not repeat them here. We

have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.

The IJ did not err in her treatment of Zhao's credibility. An “IJ must provide

‘specific and cogent reasons' in support of an adverse credibility determination.”

Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009) (quoting He v. Ashcroft,

328 F.3d 593, 595 (9th Cir. 2003)). Here, the IJ did not impermissibly make a

“backdoor” adverse credibility finding against Zhao; rather, the IJ found Zhao

credible, accepted what she said as true. The IJ then permissibly exercised her

discretion to deny asylum after assigning appropriate weight to those truthful

statements and balancing them against other adverse factors. See Kalubi v.

Ashcroft, 364 F.3d 1134, 1038 (9th Cir. 2004) (the BIA has discretion “to decide

what consequences to attach to the facts thereby taken as true” and “to determine

what weight to give them”); Gulla v. Gonzales, 498 F.3d 911, 915 (9th Cir. 2007)

(“Once an applicant establishes statutory eligibility for asylum, the Attorney

General must, by a proper exercise of discretion, determine whether to grant that

relief.” (internal quotations and alterations omitted)).

Nor did the IJ err in denying Zhao’s asylum petition. We review the

discretionary denial of asylum for abuse of discretion. Id. at 1137; 8 U.S.C. §

1252(b)(4)(D). The burden of proof is on the applicant to establish both statutory

eligibility for asylum and that such relief should be granted in the exercise of

2 discretion. 8 U.S.C. § 1158(b)(1)(B). During the discretionary step of an asylum

application, the IJ must consider favorable and adverse factors and “explain

sufficiently how each factor figures in the balance so the court can determine that

the factor has been heard, considered, and decided.” Gulla, 498 F.3d at 916. The

adverse factors counseling against asylum were clear here, to include the

circumstances surrounding Zhao’s criminal conduct and the fact that Zhao offered

no corroborating evidence about her work history post-conviction. Finally, the IJ

properly reconsidered the discretionary denial of asylum in light of Zhao’s grant of

withholding of removal.

Finally, Zhao waived her CAT claim by failing to raise specific arguments in

support of that claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.

1996) (“Issues raised in a brief that are not supported by argument are deemed

abandoned.”).

PETITION DENIED.