Zhu Zhen v. Holder

575 F. App'x 707

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 7, 2014
• Docket: No. 10-71147
• Status: Published

Opinions

MEMORANDUM

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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 that after her release she was fired from her work unit for talking with her coworkers 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 evidence. First, Zhu’s 1-213 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 1-213 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 1-213 forms. See Espinoza v. I.N.S., 45 F.3d 308, 310 (9th Cir.1995) (discussing an 1-213 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 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.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.