NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OK HUA KIM, No. 15-70337
Petitioner, Agency No. A094-791-637
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 10, 2018
Submission Deferred August 13, 2018
Resubmitted December 3, 2018
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and EZRA,** District Judge.
Petitioner, Ok Hua Kim a.k.a. Yuhua Jin (Kim), seeks review of an order of
the Board of Immigration Appeals (BIA) denying her application for asylum,
withholding of removal, and protection under the Convention Against Torture. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.1
Factual findings and the agency’s denials of asylum and withholding of
removal are reviewed for substantial evidence. Hamazaspyan v. Holder, 590 F.3d
744, 747 (9th Cir. 2009) (factual findings); Li v. Ashcroft, 378 F.3d 959, 962 (9th
Cir. 2004) (asylum and withholding of removal). Under this “highly deferential”
standard, we will overturn the BIA’s decision, only if the petitioner “show[s] that
the evidence compels reversal.” Chebchoub v. I.N.S., 257 F.3d 1038, 1042 (9th
Cir. 2001). Questions of law are reviewed de novo. Pirir-Boc v. Holder, 750 F.3d
1077, 1081 (9th Cir. 2014).
Asylum is available to applicants who (1) demonstrate statutory eligibility
for asylum as a “refugee,” and (2) merit a favorable exercise of the Attorney
General’s discretion. 8 U.S.C. § 1158(a). Under the Real ID Act, an applicant
may establish eligibility based on credible testimony alone, without any
corroboration. 8 U.S.C § 1158(b)(1)(B)(ii). However, “[w]here the trier of fact
determines that the applicant should provide evidence that corroborates otherwise
credible testimony, such evidence must be provided unless the applicant does not
have the evidence and cannot reasonably obtain the evidence.” Id.
Kim argues that the immigration judge (IJ) did not provide proper notice that
1
The facts are familiar to the parties and are restated here only as
necessary to resolve the issues of the petition for review.
2
additional corroboration was required before concluding that Kim had not met her
burden of proof. We conclude that Kim was provided adequate notice. At the first
evidentiary hearing, during Kim’s direct examination testimony, the IJ initially
denied Kim’s request for a continuance to provide testimony from her sister. But
after certain areas of Kim’s testimony lacking corroboration were identified on
cross examination, the IJ allowed a continuance for further evidence, remarking
that a continuance “[s]ounds like a good idea.” Kim’s sister testified at a further
evidentiary hearing approximately one-and-a-half years later. We conclude that,
under these circumstances, Kim was put on notice that her testimony alone would
not be sufficient to meet her burden of proof without further, meaningful
corroboration. See Liu v. Sessions, 891 F.3d 834, 839 (9th Cir. 2018) (holding that
an “IJ may deny the application for asylum” where the “IJ gives notice that an
asylum-seeker’s testimony will not be sufficient and gives the petitioner adequate
time to gather corroborating evidence, and the petitioner then provides no
meaningful corroboration or an explanation for its absence”).
We also reject Kim’s argument that the record compels the conclusion that
either she sufficiently corroborated her claim or corroborative evidence was not
reasonably available. Kim’s Chinese identification documents and the testimony
of her sister did not meaningfully corroborate the contested aspects of Kim’s claim.
And substantial evidence supports the conclusion that corroborative evidence was
3
reasonably available.
Finally, the BIA reasonably determined that Kim did not merit a
discretionary grant of asylum—an alternative basis for denying her application—
based on her conviction for loitering with intent to commit prostitution combined
with her failure to disclose the conviction.
Petition DENIED.
4
FILED
Kim v. Whitaker, No. 15-70337 DEC 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NGUYEN, J., Circuit Judge, dissenting:
I respectfully dissent. As the majority acknowledges, the IJ must give Kim
“notice of the corroboration required, and an opportunity to either provide that
corroboration or explain why [she] cannot do so.” Ren v. Holder, 648 F.3d 1079,
1091–92 (9th Cir. 2011). Here, the IJ failed to do so.
The majority relies on Kim’s cross-examination by the government counsel
as providing the necessary notice, but it is the IJ’s responsibility to provide Kim
with notice of the need for corroboration, which the IJ indisputably failed to do.
See 8 U.S.C. § 1158(b)(1)(B)(ii) (noting that the “trier of fact” (the IJ) must
determine credibility, weigh credible testimony with other evidence of record, and
require provision of corroborating evidence if necessary). The IJ’s grant of a
continuance is also insufficient to constitute notice. Kim’s counsel asked for a
continuance to call Kim’s sister as a witness “for the purposes of identity,” and the
IJ responded “[s]ounds like a good idea.”1 At most, this record suggests that the IJ
1
Counsel initially stated that he wanted a continuance “for the purposes of
investigating from the sister if she has other knowledge other than just identity,”
but then clarified “I don’t think—actually, yes for the purposes of identity I would
like to bring the sister in.”
1
was requesting additional corroboration as to Kim’s identity, but not as to the past
persecution aspect of her claim.
I would therefore grant the petition and remand.
2