Yuhua Zhu v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2021
• Docket: 16-71118
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS YUHUA ZHU, No. 16-71118

Petitioner, Agency No. A087-722-401

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

Respondent.

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

Submitted November 15, 2021** Pasadena, California

Before: BYBEE and BENNETT, Circuit Judges, and BATAILLON,*** District Judge.

* 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 Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. Yuhua Zhu is a citizen of the People’s Republic of China. After Zhu

overstayed his visa, an Immigration Judge (IJ) denied his application for asylum,

withholding, and protection under CAT, and the Board of Immigration Appeals

(BIA) affirmed. Now, Zhu timely petitions on three grounds.1 First, Zhu argues

that his testimony was plausible and consistent because the IJ failed to consider

Zhu’s explanation for an alleged inconsistency. Second, he asserts that his

demeanor did not demonstrate that he lacked credibility. Finally, Zhu contends

that, as he was otherwise credible, the IJ failed to apply the notice and explanation

requirements of Ren v. Holder, 648 F.3d 1079, 1090–93 (9th Cir. 2011), when

determining that he had failed to corroborate his claims. We have appellate

jurisdiction under 8 U.S.C. § 1252(a)(1). We deny his petition.

Where the BIA affirms the IJ while citing its decision in Matter of Burbano,

20 I. & N. Dec. 872, 874 (BIA 1994), and adding its own analysis, we review the

factual findings of the IJ and BIA for substantial evidence. See Bondarenko v.

Holder, 733 F.3d 899, 906 (9th Cir. 2013); Melkonian v. Ashcroft, 320 F.3d 1061,

1065 (9th Cir. 2003). Under this standard, we must uphold the findings unless

“any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1

1 Zhu does not appeal the denial of his CAT claims here. 2 (1992). When applying this standard of review, we may not re-weigh the evidence,

Gu v. Gonzales, 454 F.3d 1014, 1018–19 (9th Cir. 2006), and may only reverse if

no reasonable fact-finder could have reached the agency’s conclusion,

Elias-Zacarias, 502 U.S. at 481. “[O]nly the most extraordinary circumstances

will justify overturning [the agency’s] adverse credibility determination,” as long

as the IJ has provided specific and cogent reasons for finding the applicant not

credible. Shrestha v. Holder, 590 F.3d 1034, 1041, 1044 (9th Cir. 2010) (quoting

Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005)).

The IJ supported the adverse credibility determination with substantial

evidence. First, the IJ identified five inconsistencies between Zhu’s testimony, his

written declaration, and his accompanying documentation. Zhu challenges only

one of these inconsistencies, waiving the other four. See Tijani v. Holder, 628 F.3d

1071, 1080 (9th Cir. 2010) (failure to raise grounds for relief constitutes waiver).

Zhu contends that the IJ and BIA erred because he presented a “plausible”

explanation for the apparent inconsistency between his descriptions of his initial

attitude towards Christianity. An IJ, however, is not required to interpret evidence

as the respondent advocates. See Don v. Gonzales, 476 F.3d 738, 744 (9th Cir.

2007). Rather, the IJ must only “consider the petitioner’s explanation for any

inconsistency” while excluding any “utterly trivial inconsistency that . . . [has] no

3 bearing on a petitioner’s veracity.” Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th

Cir. 2014) (brackets in original) (internal quotations omitted). The IJ was best

positioned to consider the testimony in its context. And, the IJ provided support

from the record for his conclusion. Moreover, all five of the inconsistencies

directly pertain to the veracity of Zhu’s religious practice or the circumstances that

he claims prompted his conversion. Thus, they constitute reasonable grounds upon

which to base an adverse credibility determination in a case alleging religious

persecution.

Furthermore, the IJ noted two demeanor findings that contributed to the

adverse credibility determination. An IJ’s demeanor findings are afforded

substantial deference because the IJ has the opportunity to observe the applicant.

See Shrestha, 590 F.3d at 1041. The activities upon which an IJ can base a

demeanor finding include: “All aspects of the witness’s demeanor[,] including the

expression of his countenance, how he sits or stands, whether he is inordinately

nervous, his coloration during critical examination, the modulation or pace of his

speech and other non-verbal communication.” Ling Huang v. Holder, 744 F.3d

1149, 1153 (9th Cir. 2014) (quoting Shrestha, 590 F.3d at 1042). Yet, an IJ must

provide “specific examples of a petitioner’s demeanor that would support” an

4 adverse credibility finding. Kin v. Holder, 595 F.3d 1050, 1056 (9th Cir. 2010)

(citing Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003)).

The IJ found that (1) Zhu shifted in his chair when asked difficult or

important questions and (2) Zhu provided vague or unresponsive testimony on

several occasions. The IJ noted that the shifting occurred precisely when Zhu was

asked difficult questions that cut to the heart of his story, and was often

accompanied with vague or unresponsive answers that required further

questioning. Likewise, the IJ identified numerous occasions on which Zhu

responded vaguely or incompletely, or answered a request for further explanation

with verbatim repetition.

Taken together, then, the IJ’s findings regarding Zhu’s contradictory

statements and demeanor provide ample support within the record to sustain the

adverse credibility determination under the substantial evidence standard. See Ai

Jun Zhi, 751 F.3d at 1091 (“[The IJ] must present a reasoned analysis of the

evidence as a whole.” (quoting Tamang v. Holder, 598 F.3d 1083, 1093 (9th Cir.

2010))). Since the IJ’s adverse credibility determination was supported by

substantial evidence, the notice and explanation requirements of Ren do not apply.

Ren, 648 F.3d at 1093. Accordingly, the IJ’s findings that Zhu failed to provide

corroborative evidence to substantiate his claims add further support to the adverse

5 credibility determination. As Zhu lacked credibility, the IJ and BIA did not err in

determining that Zhu failed to meet his burden of proof.

PETITION DENIED.