NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AIYING ZHAO, No. 14-72632
Petitioner,
Agency No. A099-402-288
v.
JEFFERSON SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 28, 2017
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
Before: W. FLETCHER and IKUTA, Circuit Judges, and FREUDENTHAL,** Chief
District Judge
Petitioner Aiying Zhao, a 59-year-old female, native and citizen of the
People’s Republic of China, petitions for review of the Board of Immigration
Appeals’ (BIA) order dismissing her appeal from an immigration judge’s decision
denying her application for withholding of removal under 8 U.S.C. § 1231(b)(3).
We have jurisdiction under 8 U.S.C. § 1252, and we affirm.
We conclude substantial evidence supports the administrative factual
findings, including the adverse credibility findings, of the Immigration Judge (IJ). 8
U.S.C. § 1252(b)(4)(B); Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003).
The IJ properly considered the “totality of the circumstances” standard governing
adverse credibility determinations under the REAL ID Act. Shrestha v. Holder, 590
F.3d 1034, 1040 (9th Cir. 2010); 8 U.S.C. §§ 1158(b)(1)(B)(iii) (asylum);
1231(b)(3)(C) (adopting the standard in 8 U.S.C. § 1158(b)(1)(B) for withholding
of removal). The IJ’s reasons for the adverse credibility determination are specific,
cogent and supported by the evidence, including consideration of candor,
plausibility, consistency and fabrication. Zhao fails to show evidence in the record
which compels a contrary result. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003) (citing Garrovillas v. INS, 156 F.3d 1010, 1015-16 (9th Cir. 1998)).
**
The Honorable Nancy D. Freudenthal, Chief United States District Judge for the
District of Wyoming, sitting by designation.
2
We reject Zhao’s argument that the IJ erred in the weight given to an earlier
frivolous asylum application and a fabricated “Home Letter” purportedly written by
Zhao’s daughter. Zhao’s willingness to engage in, enable or perpetuate material
falsehoods before the very tribunal charged with adjudicating requests for asylum
and related relief goes to the heart of her credibility. We find no error by the IJ in
considering this as a principle reason to find Zhao not credible.
We also reject Zhao’s argument that she was confused by the line of questions
about her ability to conceive, and the IJ erred in considering this testimony to be
evasive, internally inconsistent and implausible. The initial question about whether
Zhao could become pregnant was a clear question and the IJ did not err in
considering Zhao’s response evasive and eventually inconsistent. We further reject
Zhao’s argument that the IJ erred in considering her continued presence in China as
a factor detracting from her credibility, in that she adequately explained her need to
remain in China to care for her daughter.
Finally, we reject Zhao’s argument that the IJ erred in giving her abortion
certificate diminished weight, in that it is unreasonable to expect a repressive
government to provide evidence of its own persecution by way of attesting that the
abortion was forced. Considering Zhao previously submitted the “Home Letter”,
which she later said was false, the IJ committed no error.
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It appears that both the IJ and BIA improperly determined Zhao failed to prove
future prosecution. The IJ found Zhao’s testimony conflicted with her claim that she
would face future persecution when she returned to China, and denied her petition
in part because she failed to demonstrate the same. In Tang v. Gonzales, 489 F.3d
987, 992 (9th Cir. 2007), we extended Qu v. Gonzales, 399 F.3d 1195 (9th Cir.
2005), to victims of forced abortion, holding that they must be granted withholding
of removal on the same terms as victims of forced sterilization. In Qu, we held that
victims of forced sterilization need not show future persecution; they are entitled to
withholding of removal as a matter of law. Qu, 399 F.3d at 1203. However, this
error is harmless because the IJ properly found Zhao failed to prove she was subject
to a forced abortion.
In sum, the BIA’s conclusion that the IJ properly denied Zhao withholding of
removal is supported by substantial evidence. The adverse credibility determination
by the IJ relied on specifically-identified factors explicitly permitted by the REAL
ID Act. Based on the totality of circumstances, it was a reasonable adverse credibility
determination, grounded in the record. Absent Zhao’s discredited testimony,
combined with the diminished weight given to Zhao’s corroborating evidence, there
is no objective evidence that Zhao was forced to abort a pregnancy.
PETITION FOR REVIEW DENIED.
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FILED
Zhao v. Sessions, No. 14-72632
SEP 21 2017
Ikuta, Circuit Judge, concurring in the judgment:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Zhao’s only claim on appeal is that the IJ erred in denying her request for
withholding of removal under the Immigration and Nationality Act (INA), 8
U.S.C. § 1231(b)(3). But Zhao is not eligible for such relief, and we should deny
her petition without reaching the merits of her claims.
Under § 1158(d)(6), “[i]f the Attorney General determines that an alien has
knowingly made a frivolous application for asylum” and the alien has received
timely notice “of the privilege of being represented by counsel and of the
consequences . . . of knowingly filing a frivolous application for asylum,” id.
§ 1158(d)(4), then “the alien shall be permanently ineligible for any benefits under
this chapter [Chapter 12 of Title 8, §§ 1101-1537], effective as of the date of a final
determination on such application,” id. § 1158(d)(6) (emphasis added). The term
“benefits” is not defined in the INA, so we consider the dictionary definition of the
term: “something that guards, aids or promotes well-being.” Webster's Third New
International Dictionary 1560 (2002). A determination that a deportable alien may
not be removed to a specified country because “the alien’s life or freedom would
be threatened in that country,” 8 U.S.C. § 1231(b)(3)(A), constitutes a “benefit”
under this definition. Indeed, even the BIA has acknowledged that withholding of
removal constitutes a “benefit” under the INA, see Matter of Y-L-, 24 I. & N. Dec.
151, 155 (BIA 2007) (stating that filing a frivolous application makes an alien
ineligible “for any benefits under the Immigration and Nationality Act except for
withholding of removal.”).1 Because this “benefit” is in Chapter 12 of the United
States Code, an alien is “permanently ineligible” for withholding of removal after
filing a frivolous asylum application.
Here, there is no dispute that Zhao filed a frivolous application for asylum
after receiving a timely notice as required under § 1158(d)(4). Therefore, she is
“permanently ineligible for any benefits” under the INA, including withholding
under § 1231(b).
In reaching the merits of Zhao’s withholding claim, the BIA applied an
immigration regulation that states that “a finding that an alien filed a frivolous
asylum application shall not preclude the alien from seeking withholding of
removal.” 8 C.F.R. § 1208.20; see Matter of Y-L-, 24 I. & N. Dec. at 155. If this
regulation referred to withholding of removal as set forth in § 1231(b)(3), it would
be contrary to the plain language of § 1158(d)(6) and not entitled to deference. See
1
At oral argument, counsel for the government argued that withholding of
removal under the INA is not a “benefit,” but a “protection.” Given counsel’s
concession that the government has not offered this interpretation in any regulation
or guidance document, it deserves no weight. Moreover, because a “protection” is
likewise a “benefit” under the INA, counsel’s proffer of the word “protection” to
describe withholding of removal does not persuasively explain how withholding is
exempt from the frivolous application bar.
2
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984).
But a better interpretation is to read “withholding of removal” in § 1208.20 as
referring to withholding of removal under the Convention Against Torture (CAT),
8 C.F.R. § 1208.16(d)(2). The history of § 1208.20 supports this interpretation.
Before 1999, the predecessor to § 1208.20 focused on the definition of a frivolous
asylum application and did not address withholding of removal. See id. § 208.18
(1999). In 1999, the Department of Justice (DOJ) promulgated new regulations to
implement the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, 112 Stat. 2681, which required the DOJ to align U.S. immigration law
with CAT’s requirements. As part of this project, the DOJ added the current
language addressing withholding of removal. See 8 C.F.R. § 208.19 (2000). This
language incorporates U.S. obligations under CAT by enabling applicants who
have filed frivolous asylum applications to seek withholding of removal under
CAT. Because this reading of the regulation makes sense and does not conflict
with § 1158(d)(6), the BIA erred in applying the regulation to withholding under §
1232(b).
Given that “the proper role of the judiciary” is “to apply, not amend, the
work of the People's representatives,” Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718, 1726 (2017), we should interpret the plain language of
3
§ 1158(d)(6) as precluding a grant of withholding under § 1232(b) to an alien who
has filed a frivolous application. Because Zhao filed a frivolous asylum
application here, we are barred from granting Zhao’s claim for withholding of
removal. I would therefore deny Zhao’s petition for review without reaching the
merits.
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