NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 27 2014
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
ZHU ZHEN, No. 10-71147
Petitioner, Agency No. A094-798-149
v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 7, 2014** Seattle, Washington
Before: HAWKINS, RAWLINSON, and BEA, Circuit Judges.
Zhu, Zhen (“Zhu”) is a native and citizen of the People’s Republic of China
(“China”). According to her written application and oral testimony before the
Immigration Judge (“IJ”), on February 26, 2006, Zhu was arrested by the police in
China and tortured for her participation in a Christian home church. Zhu stated
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). that after her release she was fired from her work unit for talking with her co-
workers about her religion. According to Zhu, to escape this religious persecution,
she had herself smuggled out of China on May 4, 2006 and arrived in the United
States on June 15, 2006. After removal proceedings were initiated against her, Zhu
applied for asylum, withholding of removal, and protection under CAT. At her
removal hearing, the IJ found Zhu not credible and denied her application. The
BIA affirmed, and Zhu petitioned this court for review.
We review the BIA’s decision that Zhu has failed to meet her burden of
proof for asylum, withholding of removal, or relief under CAT for substantial
evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Adverse
credibility determinations are reviewed under the substantial evidence standard.
Id. The BIA and IJ’s findings of fact, including credibility determinations, “are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). Zhu submitted her asylum application on
November 22, 2006, and therefore this case is controlled by the REAL ID Act,
which establishes a “totality of the circumstances” test for credibility
determinations. 8 U.S.C. § 1158(b)(1)(B)(iii).
The IJ and BIA based their adverse credibility finding on three
inconsistencies, at least two of which we find to have been supported by substantial
2 evidence. First, Zhu’s I-213 Form, which an immigration officer filled out when
she first entered the United States, stated only that she “claims she entered the U.S.
to seek employment in New York.” Zhu testified, however that she did not tell the
officer that she was going to New York to look for employment, but rather told
him that she left China because she “participated in [a] Christian church.” Even
though she testified that she did not tell the officer that she was going to New York
to look for employment, she also testified that she did, in fact, go to New York. As
the IJ stated in his decision, “In particular, the I-213 informs the Court that the
respondent admitted upon apprehension that ‘she entered the U.S. to seek
employment in New York.’ On cross-examination, the respondent denied making
any such statement.” We hold that this discrepancy between what she said she told
the officer and what the I-213 Form documents, as well as her actual travel to New
York, constitutes substantial evidence supporting the adverse credibility finding,
especially considering the inherent credibility of I-213 forms. See Espinoza v.
I.N.S., 45 F.3d 308, 310 (9th Cir. 1995) (discussing an I-213 Form and concluding
that “information on an authenticated immigration form is presumed to be reliable
in the absence of evidence to the contrary presented by the alien”).
The second inconsistency was the omission of Zhu’s asserted employment
from the official Household Register. The Register says Zhu was born in 1986, the
3 Education field is blank, and the Occupation field says “Child before school age.”
Zhu was not able to explain this inconsistency, and the IJ concluded that Zhu was
not credible as to her claim of education and work experience. We conclude that
this inconsistency, too, constitutes substantial evidence supporting the IJ and BIA’s
adverse credibility finding.
We hold that the record is not sufficient to compel every reasonable
adjudicator to conclude that the IJ and the BIA erred in finding Zhu not credible,
and therefore conclude that these two discrepancies between Zhu’s testimony and
the evidence in the record constitute substantial evidence of Zhu’s adverse
credibility.
Because Zhu failed to carry her burden for asylum, we also hold that the
record does not compel the conclusion that she meets the more stringent standard
for withholding of removal. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.
2000).
With regard to Zhu’s CAT claim, although the country reports do show that
there was some religious persecution in China in 2006 and 2007, it is not sufficient
evidence to compel the conclusion that it is more likely than not that Zhu herself
would be tortured if she were returned to China. See Shrestha, 590 F.3d at 1049.
Petition DENIED
4 FILED Zhen v. Holder, 10-71147 MAY 27 2014
MOLLY C. DWYER, CLERK HAWKINS, Senior Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent.
Although the Real ID Act expanded the bases on which an IJ may rest an
adverse credibility determination, it nonetheless requires such decisions to be based
on the “totality of the circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii). “Trivial
inconsistencies that under the total circumstances have no bearing on a petitioner’s
veracity should not form the basis of an adverse credibility determination.” Shrestha
v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010).
Zhen’s detailed testimony about her arrest on account of her Christian faith and
participation in an underground Bible study was internally consistent, consistent with
her asylum application and consistent with country conditions reports on China. See
Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011). And although we have noted that
“questioning an applicant on his knowledge of religious doctrine to determine if he
is a true believer is not an appropriate method of determining eligibility for asylum,”
id. at 1088, Zhen nonetheless answered numerous doctrinal questions correctly,
exhibiting significant knowledge of the Christian faith. The IJ essentially ignored
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 27 2014
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
ZHU ZHEN, No. 10-71147
Petitioner, Agency No. A094-798-149
v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 7, 2014** Seattle, Washington
Before: HAWKINS, RAWLINSON, and BEA, Circuit Judges.
Zhu, Zhen (“Zhu”) is a native and citizen of the People’s Republic of China
(“China”). According to her written application and oral testimony before the
Immigration Judge (“IJ”), on February 26, 2006, Zhu was arrested by the police in
China and tortured for her participation in a Christian home church. Zhu stated
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). that after her release she was fired from her work unit for talking with her co-
workers about her religion. According to Zhu, to escape this religious persecution,
she had herself smuggled out of China on May 4, 2006 and arrived in the United
States on June 15, 2006. After removal proceedings were initiated against her, Zhu
applied for asylum, withholding of removal, and protection under CAT. At her
removal hearing, the IJ found Zhu not credible and denied her application. The
BIA affirmed, and Zhu petitioned this court for review.
We review the BIA’s decision that Zhu has failed to meet her burden of
proof for asylum, withholding of removal, or relief under CAT for substantial
evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Adverse
credibility determinations are reviewed under the substantial evidence standard.
Id. The BIA and IJ’s findings of fact, including credibility determinations, “are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). Zhu submitted her asylum application on
November 22, 2006, and therefore this case is controlled by the REAL ID Act,
which establishes a “totality of the circumstances” test for credibility
determinations. 8 U.S.C. § 1158(b)(1)(B)(iii).
The IJ and BIA based their adverse credibility finding on three
inconsistencies, at least two of which we find to have been supported by substantial
2 evidence. First, Zhu’s I-213 Form, which an immigration officer filled out when
she first entered the United States, stated only that she “claims she entered the U.S.
to seek employment in New York.” Zhu testified, however that she did not tell the
officer that she was going to New York to look for employment, but rather told
him that she left China because she “participated in [a] Christian church.” Even
though she testified that she did not tell the officer that she was going to New York
to look for employment, she also testified that she did, in fact, go to New York. As
the IJ stated in his decision, “In particular, the I-213 informs the Court that the
respondent admitted upon apprehension that ‘she entered the U.S. to seek
employment in New York.’ On cross-examination, the respondent denied making
any such statement.” We hold that this discrepancy between what she said she told
the officer and what the I-213 Form documents, as well as her actual travel to New
York, constitutes substantial evidence supporting the adverse credibility finding,
especially considering the inherent credibility of I-213 forms. See Espinoza v.
I.N.S., 45 F.3d 308, 310 (9th Cir. 1995) (discussing an I-213 Form and concluding
that “information on an authenticated immigration form is presumed to be reliable
in the absence of evidence to the contrary presented by the alien”).
The second inconsistency was the omission of Zhu’s asserted employment
from the official Household Register. The Register says Zhu was born in 1986, the
3 Education field is blank, and the Occupation field says “Child before school age.”
Zhu was not able to explain this inconsistency, and the IJ concluded that Zhu was
not credible as to her claim of education and work experience. We conclude that
this inconsistency, too, constitutes substantial evidence supporting the IJ and BIA’s
adverse credibility finding.
We hold that the record is not sufficient to compel every reasonable
adjudicator to conclude that the IJ and the BIA erred in finding Zhu not credible,
and therefore conclude that these two discrepancies between Zhu’s testimony and
the evidence in the record constitute substantial evidence of Zhu’s adverse
credibility.
Because Zhu failed to carry her burden for asylum, we also hold that the
record does not compel the conclusion that she meets the more stringent standard
for withholding of removal. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.
2000).
With regard to Zhu’s CAT claim, although the country reports do show that
there was some religious persecution in China in 2006 and 2007, it is not sufficient
evidence to compel the conclusion that it is more likely than not that Zhu herself
would be tortured if she were returned to China. See Shrestha, 590 F.3d at 1049.
Petition DENIED
4 FILED Zhen v. Holder, 10-71147 MAY 27 2014
MOLLY C. DWYER, CLERK HAWKINS, Senior Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent.
Although the Real ID Act expanded the bases on which an IJ may rest an
adverse credibility determination, it nonetheless requires such decisions to be based
on the “totality of the circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii). “Trivial
inconsistencies that under the total circumstances have no bearing on a petitioner’s
veracity should not form the basis of an adverse credibility determination.” Shrestha
v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010).
Zhen’s detailed testimony about her arrest on account of her Christian faith and
participation in an underground Bible study was internally consistent, consistent with
her asylum application and consistent with country conditions reports on China. See
Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011). And although we have noted that
“questioning an applicant on his knowledge of religious doctrine to determine if he
is a true believer is not an appropriate method of determining eligibility for asylum,”
id. at 1088, Zhen nonetheless answered numerous doctrinal questions correctly,
exhibiting significant knowledge of the Christian faith. The IJ essentially ignored
other corroborating evidence Zhen submitted with her application, including a letter
from a fellow church member who was arrested at the same time, and the dismissal notice from her employer indicating Zhen was being terminated because of her
participation in an underground religious activity.
Instead, the IJ seized on three trivial details, which are not inconsistencies as
much as sins of omission. One—her current pastor’s failure to specify how often she
attends church in the U.S.—was so minor the majority does not even attempt to justify
it. The second—failure to update Zhen’s employment on China’s official Household
Register—is likely no more than a clerical error over which Zhen had no control. The
final is that when initially intercepted by immigration officials at a bus station in
Texas, she did not volunteer to the interviewing officer that she had left China because
of religious persecution. See Zhu v. Mukasey, 537 F.3d 1034, 1040 (9th Cir. 2008)
(noting this court hesitates to view such interviews “as valuable impeachment sources
because of the conditions under which they are taken”); see also Singh v. INS, 292
F.3d 1017, 1023 (9th Cir. 2002) (such interviews are “perfunctory examinations” that
“hardly provide an opportunity to explain one’s circumstances”).
In light of the totality of the circumstances, I would conclude the adverse
credibility determination lacks substantial evidence and remand to the BIA for further
proceedings.
2 Because China refuses to accept the return of its nationals,1 we consign Zhen
to a never-never land in which her future will be forever clouded. While China’s
stance should not serve as a reason to grant relief in all such cases, this petition is
different. Her obviously sincere faith which put her at odds with the atheistic policies
of a communist dictatorship renders her essentially a non-person in a land that
treasures religious liberty.
1 As the Department of Homeland Security itself has repeatedly recognized, China has proven to be unwilling to repatriate thousands of its citizens subject to final removal orders. Office of the Inspector General, “Detention and Removal of Illegal Aliens,” OIG-06-33 (Apr. 2006), at 17-19 & n.37; see also Office of the Inspector General, “ICE’s Compliance with Detention Limits for Aliens with a Final Order of removal from the United States,” OIG-07-28 (Feb. 2007), at 6 (similar conclusion). The Supreme Court has described these individuals’ plight as being in a “removable- but-unremovable limbo.” Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 347 (2005). 3