SUN v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-07No. No. 16-70359

Summary · law.co

Holding. The petition for review was denied, and the Board of Immigration Appeals' dismissal of Sun's appeal was affirmed.

Yuehua Sun, a Chinese national who entered the United States on a nonimmigrant visa in 2004, was ordered removed in 2016. He appealed the immigration judge's denial of his applications for asylum, withholding of removal, and Convention Against Torture protection, as well as the finding that his asylum application was frivolous. The appellate court reviewed both the immigration judge's and the Board of Immigration Appeals' decisions and upheld them.

The court found substantial evidence supported an adverse credibility determination against Sun. He had falsely claimed in his asylum application that his employer ordered his sterilization, fined him, and demoted him due to violation of China's one-child policy. Sun later recanted the sterilization claim only after being confronted about it and having multiple chances to correct the record. His account of the fine and demotion was implausible given that he was working only intermittently at the relevant time. Additionally, Sun's demeanor during proceedings was suspicious, as he gave unresponsive answers when questioned about these false statements.

The court also upheld the frivolous application determination. Because Sun deliberately included the false sterilization statement in his asylum application despite knowing it was untrue, and this statement was a material element of his claim, the record contained preponderant evidence supporting the frivolousness finding. Sun did not challenge whether he received adequate notice of the consequences, specific findings, or sufficient opportunity to explain discrepancies in his application.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether substantial evidence supported an adverse credibility finding based on false statements in asylum application
Whether an asylum application constitutes frivolous filing when material elements are deliberately fabricated
Standards for assessing recantation of false statements and applicant demeanor in credibility determinations

Procedural posture

Yuehua Sun petitioned for review of the Board of Immigration Appeals' dismissal of his appeal from an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture protection, and the frivolous application finding.

Authorities cited

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Opinion · public domain

MEMORANDUM ***

Yuehua Sun, a native and citizen of China, arrived in the United States on a nonimmigrant visa in 2004 and was ordered removed in 2016. Sun petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of the Immigration Judges (“IJ”) (1) denial of his applications for asylum, withholding of removal, and Convention Against Torture (“CAT”) protection, and (2) finding that he filed a frivolous asylum application. Because the BIA cited Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and included its own analysis, we review the findings of both the BIA and IJ (“agency”). See Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013). We deny the petition for review.

1. The agencys adverse credibility determination is supported by substantial evidence. Sun represented in his asylum application that his work unit ordered him sterilized, deducted a fine from his wages, and demoted him because he violated Chinas one-child policy. The agency determined that Suns sterilization statement was false, that he recanted the statement only once confronted about it and after having several opportunities to correct it, and that his fine-and-demotion claim was implausible because at the time of his second childs birth, he was only intermittently working. Such falsehoods go “to the heart of [ ] petitioners claim” and are grounds for an adverse credibility finding in a pre-REAL ID Act case such as this one.

Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011).

Further, Suns recantation of the false sterilization statement was neither voluntary nor timely. See Valadez-Munoz v. Holder, 623 F.3d 1304, 1309–10 (9th Cir. 2010).

Additionally, the IJ properly determined that Suns demeanor was suspicious, as the record reflects multiple instances in which Sun was unresponsive to questions about both of the above falsehoods. See Bingxu Jin v. Holder, 748 F.3d 959, 965 (9th Cir. 2014).

2. The agencys frivolous determination is supported by the record. An asylum application is frivolous if “[a]ny of the material elements in the asylum application is deliberately fabricated.” 8 C.F.R. § 208.20(a)(1). The IJs findings “must be supported by a preponderance of the evidence.” Ahir v. Mukasey, 527 F.3d 912, 917 (9th Cir. 2008) (citing Matter of Y-L-, 24 I. & N. Dec. 151, 154 (BIA 2007)). Here, Suns false sterilization statement was a material element in his asylum application, and Sun confessed that he deliberately kept the statement in his application despite knowing it was false. Thus, a preponderance of the evidence in the record supports the IJs determination. See id. at 918; see also Khadka v. Holder, 618 F.3d 996, 1002, 1005 (9th Cir. 2010) (applying a preponderance standard); Yan Liu v. Holder, 640 F.3d 918, 930 (9th Cir. 2011) (same). Sun does not challenge whether he received “notice of the consequences of filing a frivolous application,” whether the IJ made “specific findings,” or whether he had a “sufficient opportunity to account for any discrepancies or implausibilities in his application.” Ahir, 527 F.3d at 917. In any event, Sun was warned of the consequences of filing a frivolous application, the IJ and BIA made specific findings, and Sun had several opportunities to account for his false statement.

PETITION DENIED.

FOOTNOTES

. We review the adverse credibility determination under the standards prior to the REAL ID Act because Sun filed his asylum application on May 5, 2005, six days before the Act went into effect. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005).