Aiying Zhao v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 21 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AIYING ZHAO, No. 14-72632 Petitioner, Agency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 ...

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