NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SUHUA QIU, No. 13-74294
Petitioner, Agency No. A077-668-221
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
SUHUA QIU, No. 14-71932
Petitioner, Agency No. A077-668-221
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted March 14, 2017**
San Francisco, California
Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.
Petitioner Suhua Qiu petitions for review of two orders of the Board of
Immigration Appeals (Board). The first order dismissed his appeal from an
immigration judge’s order finding his asylum application to be frivolous, and the
second denied his motion to reopen proceedings. We have jurisdiction pursuant to
8 U.S.C. § 1252, and we deny the petitions.
Qiu challenges the Board’s affirmance of the immigration judge’s adverse
credibility determination. “[W]e review adverse credibility determinations under
the substantial evidence standard.” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th
Cir. 2010). A credibility determination should take into account “the totality of the
circumstances,” including “the consistency of [an applicant’s] statements with
other evidence of record” and “any inaccuracies or falsehoods in such statements.”
8 U.S.C. § 1158(b)(1)(B)(iii).
Substantial evidence supports the Board’s determination here. Like the
immigration judge, the Board relied on overwhelming evidence that the bail receipt
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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and termination letter that Qiu submitted to support his claim of past persecution
were counterfeit. The fact that Qiu repeatedly vouched for the authenticity of these
demonstrably fraudulent documents further supports the Board’s decision. Finally,
Qiu has pointed to no evidence in the record “so compelling that no reasonable
factfinder could find that he was not credible.” Kin v. Holder, 595 F.3d 1050, 1054
(9th Cir. 2010), quoting Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Accordingly, we decline to reverse the Board’s adverse credibility decision.
Qiu also contests the determination that his asylum petition is frivolous.
Four procedural requirements must be met to sustain a frivolousness finding:
(1) [N]otice to the alien of the consequences of filing a frivolous
application; (2) a specific finding by the Immigration Judge or the Board
that the alien knowingly filed a frivolous application; (3) sufficient
evidence in the record to support the finding that a material element of
the asylum application was deliberately fabricated; and (4) an indication
that the alien has been afforded sufficient opportunity to account for any
discrepancies or implausible aspects of the claim.
Liu v. Holder, 640 F.3d 918, 927–28 (9th Cir. 2011), quoting In re Y–L–, 24 I. &
N. Dec. 151, 155 (B.I.A. 2007). Qiu argues that the first, third, and fourth
requirements were not met in this case. We review the immigration judge’s
compliance with these requirements de novo. Id. at 925.
To the extent that Qiu challenges the adequacy of the notice he received
regarding the consequences of filing a frivolous application, the written warning on
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his asylum application, which was read to him in his native language, provided
sufficient notice of those consequences. See Cheema v. Holder, 693 F.3d 1045,
1049 (9th Cir. 2012).
Likewise, there is sufficient evidence in the record that Qiu deliberately
fabricated a material element of his claim—namely, that he had been subject to
past persecution. Qiu’s sole ground for claiming past persecution was the incident
in which he allegedly was fired, jailed, and beaten for exposing the graft of the
principal of the school at which he worked. The bail receipt and termination letter
were integral parts of that story: Qiu testified that his father was given the receipt
after paying the exorbitant bail, and that he received the termination letter from the
school after his release. Qiu’s resolute insistence at the hearing that these
counterfeit documents are authentic thus casts serious doubt on whether the
incident happened at all. At the very least, a preponderance of the evidence
supports a finding that Qiu fabricated the existence of past persecution, and the
Board did not err in so concluding. See Liu, 640 F.3d at 927 (“[F]rivolousness must
be proven by a preponderance of the evidence . . . .”).
Qiu also received sufficient opportunity to explain the discrepancies between
his story and the counterfeit documents. “To meet this requirement, it must be
made apparent to the applicant that a particular discrepancy or implausibility is
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considered potentially fraudulent, rather than merely a basis for finding the
applicant not credible.” Id. at 928. The government’s motion to reopen, filed in late
2008, and the attached report from the Department of Homeland Security’s
Forensic Document Laboratory made it clear that the government believed the
documents were counterfeit because they had been produced by the same
equipment. The immigration judge granted the motion and set a hearing for 2012
specifically to determine whether the documents were counterfeit. Qiu was
therefore on notice that the documents were being considered potentially
fraudulent and had three years to come up with an explanation. The fact that his
explanation was unconvincing does not mean that he was afforded insufficient
opportunity to present it. The Board did not err in finding this requirement
fulfilled.
Qiu’s final argument is that the Board should have granted his motion to
reopen proceedings in his case. We “review the denial of a motion to reopen for
abuse of discretion.” Meza-Vallejos v. Holder, 669 F.3d 920, 923 (9th Cir. 2011).
The Board “abuses its discretion when its decision is ‘arbitrary, irrational, or
contrary to law.’” Id., quoting Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th
Cir. 2000).
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“A motion to reopen proceedings shall not be granted unless it appears to the
Board that evidence sought to be offered is material and was not available and
could not have been discovered or presented at the former hearing . . . .” 8 C.F.R.
§ 1003.2(c)(1). Qiu’s motion to reopen was predicated entirely on his previous
attorneys’ allegedly ineffective representation, the evidence of which was available
at the time of Qiu’s appeal to the Board. The Board therefore did not abuse its
discretion in denying the motion to reopen.
PETITIONS DENIED.
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