Zhao v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2024
• Docket: 22-1091
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JIANHUA ZHAO, No. 22-1091 Agency No. Petitioner, A087-801-882 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted December 14, 2023 Pasadena, California

Before: TASHIMA, WALLACH**, and CHRISTEN, Circuit Judges. Dissent by Judge TASHIMA

Jianhua Zhao, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (BIA) ruling affirming the denial of her claims for asylum,

withholding of removal, and relief under the Convention Against Torture. The BIA

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Evan J. Wallach, United States Senior Circuit Judge for the Federal Circuit, sitting by designation. affirmed the Immigration Judge’s (IJ) finding that Zhao was not credible and the IJ’s

conclusion that Zhao did not demonstrate ineffective assistance of counsel. We have

jurisdiction under 8 U.S.C. § 1252. “Questions of law, including ineffective

assistance of counsel claims, are reviewed de novo.” Ahmed v. Mukasey, 548 F.3d

768, 771 (9th Cir. 2008). “We review factual findings, including adverse credibility

determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789 (9th

Cir. 2014). We grant the petition for review and remand for further proceedings.

1. The BIA relied on six of the grounds the IJ cited in support of its adverse

credibility determination. Three of those grounds were alleged inconsistencies or

implausibilities: (1) why authorities forced Zhao to get a new IUD after her second

child was born in secret; (2) why authorities gave Zhao an injection to begin an

induced-labor abortion without first conducting a pregnancy test; and (3) why

authorities told Zhao, after they discovered her second child, that she needed an IUD

or sterilization when she still had an IUD in place. While the IJ failed to notify Zhao

of these perceived inconsistencies or “provide [her] with an opportunity to explain

each inconsistency” during the initial proceedings, Barseghyan v. Garland, 39 F.4th

1138, 1143 (9th Cir. 2022), Zhao had notice and an opportunity to respond to these

inconsistencies on remand from the BIA. Zhao provided a letter from her husband

on remand that addressed the first and second of these issues. The first and second

inconsistencies do not support the adverse credibility ruling because the BIA “must

2 consider ‘other record evidence that sheds light on whether there is in fact an

inconsistency’ in a petitioner’s explanation,” Munyuh v. Garland, 11 F.4th 750, 763

(9th Cir. 2021) (quoting Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010)),

and there is no indication the BIA considered the letter from Zhao’s husband. With

respect to the third inconsistency, there is nothing in the record to suggest that

anyone—including Zhao—would have had reason to suspect the IUD had remained

in place through the induced labor abortion. Because “no deference is due to

inference[s] drawn from facts which are uncertain or speculative,” De Leon v.

Garland, 51 F.4th 992, 999 (9th Cir. 2022) (quotation omitted), this inconsistency

does not support the adverse credibility ruling. See also Ge v. Ashcroft, 367 F.3d

1121, 1125 (9th Cir. 2004) (overturning adverse credibility findings “based on the

IJ’s personal conjecture about what Chinese authorities would or would not do”).

The fourth ground cited by the BIA was the IJ’s assessment that Zhao “fail[ed]

to provide or adequately explain the absence of reasonably available evidence” that

an IUD could remain in place through an induced-labor abortion. This fourth ground

does not support the adverse credibility ruling because the BIA ignored the portion

of Dr. Tsai’s letter that concluded Zhao’s account of the IUD remaining in place

through induced labor was plausible. Id. We note that Dr. Tsai’s letter was

unrebutted.

The two remaining grounds supporting the BIA’s adverse credibility

3 determination do not suffer from these errors, but may be attributable to Zhao’s

lawyer’s deficient performance. The IJ requested two types of medical evidence for

Zhao’s continued hearing: proof that Zhao was the patient who had undergone the

ultrasound she had submitted into evidence, and evidence that an IUD could remain

in place through induced labor. The BIA relied on the IJ’s observation at the

continued hearing that there was a long pause before Zhao answered a question about

why she had failed to produce the requested medical evidence showing that an IUD

could have remained in place through her induced labor abortion. The IJ also

concluded that Zhao was inconsistent about whether she understood the IJ’s request

for the evidence. The BIA reasoned that Zhao was present when the IJ told her

lawyer that additional evidence was needed to show an IUD could have remained in

place, and that the IJ wrote a note on the hearing notice that described the requested

evidence. This reasoning is inadequate support because Zhao is not an English

speaker, she required an interpreter, and the record does not show that she could

have read the IJ’s handwritten notation or that the IJ’s attempts to convey the need

for the specific additional evidence were otherwise communicated or translated to

Zhao. On the one occasion the IJ spoke directly to Zhao about needing evidence to

show that the IUD could remain in place, the instruction was sandwiched between

two other instructions, and the IJ asked Zhao to confirm her comprehension of only

the final instruction: “You have to come back that day, do you understand?” The

4 later long pause that the BIA relied on is consistent with Zhao’s explanation that she

thought she had satisfied the IJ’s request because she brought evidence to the

continued hearing showing she had submitted to an ultrasound, as the IJ requested.

For reasons explained below, we conclude that Zhao’s counsel’s performance fell

below an objectively reasonable standard and that counsel’s deficient performance

may have contributed to the two remaining grounds cited to support the credibility

ruling.

2. Zhao has satisfied the procedural requirements to bring an ineffective

assistance of counsel claim. Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). As

for counsel’s performance, the IJ repeatedly stated that the evidence regarding the

medical plausibility of Zhao’s claim was needed and emphasized its importance.

Zhao established that counsel performed deficiently because counsel did not obtain

the needed evidence himself, and there is no indication he translated the oral request

or the IJ’s handwritten instructions into Chinese so Zhao could read them and obtain

the requested evidence. See Iturribarria v. INS, 321 F.3d 889, 901 (9th Cir. 2003)

(holding that a petitioner “cannot be precluded from demonstrating ineffective

assistance of counsel because he reasonably relied upon and assumed his counsel’s

competence”).

Zhao was required to show only that her claim “may” have been prejudiced

by counsel’s deficient performance. Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.

5 1999). To assess prejudice, we must “come to a tentative conclusion as to whether

[petitioner]’s claim, if properly presented, would be viable,” and the petitioner “only

needs to show that [s]he has plausible grounds for relief.” Lin v. Ashcroft, 377 F.3d

1014, 1027 (9th Cir. 2004) (citation omitted). The record makes plain that the

primary basis for the IJ’s adverse credibility ruling was the failure to produce the

medical evidence the IJ requested; none of Zhao’s claims could be established if her

testimony was not credited. This is sufficient to establish that Zhao may have been

prejudiced. If her testimony had been credited, it would have established per se

persecution. Wang v. Ashcroft, 341 F.3d 1015, 1020 (9th Cir. 2003) (holding that

“forced abortions are per se persecution” under 8 U.S.C. § 1101(a)(42)).

Given the interrelated nature of the credibility and IAC issues, we remand for

the BIA to reconsider its credibility determination. The BIA shall reevaluate

whether the totality of the circumstances sufficiently supports the adverse credibility

determination if Dr. Tsai’s complete letter and the letter from Zhao’s husband are

considered. The totality of the circumstances also includes the extent to which the

remaining two grounds cited in support of the adverse credibility determination were

influenced by counsel’s deficient performance. See INS v. Ventura, 537 U.S. 12,

16–17 (2002). If Zhao’s testimony is deemed credible on remand, the agency shall

reconsider whether Zhao was prejudiced by counsel’s deficient performance.

PETITION FOR REVIEW GRANTED and REMANDED.

6 FILED Zhao v. Garland, No. 22-1091 MAR 21 2024 TASHIMA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I believe that Petitioner failed to establish prejudice to support her

ineffective assistance of counsel claim because the IJ told her directly of the need

for her to provide the requested letter. I further believe that the majority

incorrectly applies our standard of review and does not acknowledge the BIA’s

standard in reviewing the IJ’s findings. For these reasons, I respectfully dissent.

1. “To establish ineffective assistance of counsel in immigration

proceedings in violation of the right to due process, a petitioner must show (1) that

‘the proceeding was so fundamentally unfair that the alien was prevented from

reasonably presenting [her] case,’ and (2) prejudice.” United States v.

Lopez-Chavez, 757 F.3d 1033, 1041 (9th Cir. 2014) (quoting Lin v. Ashcroft, 377

F.3d 1014, 1023 (9th Cir. 2004)).

The majority concludes that Petitioner established ineffective assistance

“because counsel did not obtain the needed evidence himself, and there is no

indication he translated the oral request or the IJ’s handwritten instructions into

Chinese so Zhao could read them and obtain the requested evidence.” However,

the majority disregards that part of the record which establishes that the IJ told

Petitioner herself, through an interpreter, of the need for the letter. Speaking

directly to Petitioner, the IJ said: You don’t necessarily have to go see a doctor for this but I would like an opinion letter from a doctor, a reliable doctor as to whether it is possible to do an abortion by induced labor with an IUD in place and not remove the IUD. We’re not medical doctors here so we don’t know but it seems difficult.

The IJ then asked Petitioner if she understood, and she stated that she did. Thus,

even if counsel failed to tell Petitioner about the need for the letter, Petitioner

cannot establish that she was prejudiced by this alleged failure because the IJ told

her directly that she needed to obtain the letter and Petitioner acknowledged

directly to the IJ that she understood.

The majority’s reasoning that counsel was deficient for failing to translate

the oral request is puzzling because the proceedings were interpreted into

Mandarin by an official interpreter. Similarly puzzling is the majority’s reasoning

that the BIA’s conclusion is unsupported because “Zhao is not an English speaker,

she required an interpreter, and the record does not show that she could have read

the IJ’s handwritten notation or that the IJ’s attempts to convey the need for the

specific additional evidence were otherwise communicated or translated to Zhao.”

The majority again fails to acknowledge that the IJ told Zhao directly, through an

interpreter, exactly what evidence was required: “an opinion letter from a doctor, a

reliable doctor as to whether it is possible to do an abortion by induced labor with

an IUD in place and not remove the IUD.” Counsel’s purported failure to translate

2 a written note instructing Zhao of the same thing cannot establish prejudice

because the IJ already told Zhao of the requirement, and Zhao indicated that she

understood. The majority’s statement that “the record does not show . . . that the

IJ’s attempts to convey the need for the specific additional evidence were

otherwise communicated or translated to Zhao” is simply mistaken; it ignores the

fact that the proceedings were translated into Mandarin for Zhao.

In addition, the majority errs in stating that “the BIA ignored the portion of

Dr. Tsai’s letter that concluded Zhao’s account of the IUD remaining in place

through induced labor was plausible.” To the contrary, the BIA did not ignore that

portion of the letter. The BIA stated that it “agree[d] with the [IJ’s] evaluation of

[Zhao’s] corroborative evidence, which does not sufficiently rehabilitate her

discredited testimony or independently satisfy her burden of proof.” In agreeing

with the IJ’s evaluation of the letter, the Board cited to the IJ’s decision, where the

IJ did address that portion of the letter. The IJ addressed the letter thoroughly,

stating:

The evidence does not show that it is possible to perform an induced abortion without removing an IUD at five to six months. The evidence only cites a single example of where an IUD remained in place following a miscarriage at eight weeks. Eight weeks is not even two months. Thus, the pregnancy is far less developed than a five to six month old fetus.

3 The IJ’s conclusion is supported by substantial evidence because this is precisely

what Dr. Tsai’s letter states: although it is “well known” that “an IUD may fail and

result in pregnancy,” there is “less medical data regarding an IUD remaining

within the uterus after a pregnancy has terminated,” and citing one case “in which

the IUD remained within the uterus after a miscarriage at 8 weeks.” The BIA did

not ignore the relevant portion of Dr. Tsai’s letter, but instead, agreed with the IJ

that the letter was insufficient to rehabilitate the testimony the IJ found not credible

– that an IUD could remain in place after an abortion at five or six months.

“We find prejudice ‘when the performance of counsel was so inadequate that

it may have affected the outcome of the proceedings.’” Lopez-Chavez, 757 F.3d at

1043 (quoting Correa–Rivera v. Holder, 706 F.3d 1128, 1133 (9th Cir. 2013)).

Because the IJ told Petitioner that she needed to obtain the letter, counsel’s alleged

failure to tell her to obtain the letter could not have, and did not, affect the

proceedings. Contrary to the majority’s conclusion that “counsel performed

deficiently because counsel did not obtain the needed evidence,”1 it was

Petitioner’s responsibility to obtain the evidence.

1 Of course, there is no basis in the record from which to conclude that counsel’s (or Petitioner’s) failure to “obtain the needed evidence” was from lack of trying. The failure could have been because no reputable, qualified physician would offer such an opinion, and admission of that fact would have been fatal to Petitioner’s case.

4 2. I also disagree with the majority’s review of the adverse credibility

determination because it does not take into account the proper standard of review.

The majority implies that the Board made the factual findings in support of the

adverse credibility determination. However, as the Board stated, it reviews the IJ’s

factual determinations, including credibility findings, for clear error. See 8 C.F.R. §

1003.1(d)(3)(i) (“The Board will not engage in de novo review of findings of fact

determined by an immigration judge. Facts determined by the immigration judge,

including findings as to the credibility of testimony, shall be reviewed only to

determine whether the findings of the immigration judge are clearly erroneous.”).

We, in turn, review the agency’s factual determinations for substantial evidence,

which means “[w]e may only reverse the agency’s determination where ‘the

evidence compels a contrary conclusion from that adopted by the BIA.’” Garcia v.

Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021) (quoting Afriyie v. Holder, 613 F.3d

924, 931 (9th Cir. 2010)). Thus, we review for substantial evidence the Board’s

determination that the IJ did not commit clear error in making his credibility

findings.

The deferential standard of review is significant here because, as Petitioner

acknowledges in her opening brief, the “seminal issue” was the IJ’s request for a

letter stating that it is possible to have an abortion at five months without removing

5 the IUD. The IJ relied not only on Petitioner’s failure to provide the letter, but also

on her explanation for the failure, finding her not credible when she asserted that

she did not know she needed to submit the letter.

• ! •

Given the lack of prejudice needed to establish Petitioner’s ineffective

assistance claim and under a proper application of the standard of review, I would

deny the petition. I respectfully dissent.