ZHAO v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-05-12No. No. 14-72979

Summary · law.co

Holding. The petition for review is denied. The court affirmed the Board of Immigration Appeals' dismissal of Zhao's appeal, upholding the immigration judge's adverse credibility finding and the resulting denials of asylum, withholding of removal, and Convention Against Torture relief.

Changxu Zhao, a Chinese national, sought asylum, withholding of removal, and relief under the Convention Against Torture. An immigration judge denied all three forms of relief, and the Board of Immigration Appeals upheld that decision. Zhao then petitioned for court review, challenging the adverse credibility finding against him.

The court upheld the immigration judge's determination that Zhao was not credible based on three grounds: his demeanor during testimony suggested he was reciting memorized statements without genuine emotion; he provided inconsistent explanations regarding how he obtained a passport; and he failed to present corroborating evidence of his claimed persecution. The court found that under current law, inconsistencies need not be central to the core claim to support an adverse credibility finding. Because Zhao's testimony was found unreliable, his asylum claim failed, and his Convention Against Torture claim—which relied on the same uncredited testimony—also failed.

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

Key issues

Standard of review for immigration judge credibility determinations based on demeanor
Whether minor inconsistencies in testimony can support adverse credibility findings under the REAL ID Act
Eligibility for asylum and withholding of removal when credibility is undermined
Convention Against Torture relief based on testimony found to lack credibility

Procedural posture

Zhao petitioned for review of the Board of Immigration Appeals' decision affirming an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Changxu Zhao, native and citizen of the Peoples Republic of China, petitions for review of the decision of the Board of Immigration Appeals (“BIA”), dismissing his appeal from an immigration judges (“IJ”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

1. After considering the totality of the circumstances and all relevant factors, substantial evidence supports the IJs adverse credibility finding based on (A) Zhoas demeanor, (B) inconsistencies in Zhoas testimony, and (C) Zhoas failure to produce corroborating evidence. See Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010).

A. An IJs demeanor finding is entitled to “special deference.” See Kin v. Holder, 595 F.3d 1050, 1056 (9th Cir. 2010). The IJ had the opportunity to observe Zhao and noted (as outlined by the BIA) that Zhao “appeared to be testifying from rote memorization, describing different incidents of purported beatings as if each incident was exactly the same as the others, and without any emotion.” This example is sufficient to support an adverse credibility finding. See id.

B. Zhao did not challenge the conclusion that he provided inconsistent statements regarding why he obtained a passport. Rather, he argued that this finding is not supported by substantial evidence, because it does not go to the “heart of the claim.” However, credibility determinations under the REAL ID Act no longer need to go the heart of the claim. See 8 U.S.C. § 1158(b)(1)(B)(iii). Thus, even if this inconsistency were minor, see, e.g., Enying Li v. Holder, 738 F.3d 1160, 1166 (9th Cir. 2013) (noting that “when and why [petitioner] applied for a passport are central to determining whether she suffered religious persecution”), Zhaos argument lacks merit.

C. We lack jurisdiction to review Zhaos arguments regarding his lack of corroborative evidence. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). As the BIA noted, Zhao failed to raise any challenge to the IJs finding that Zhao did not provide corroborative evidence of his attendance at Christian churches in the United States.

Based on the foregoing, the record does not compel the conclusion that the adverse credibility finding was in error. Accordingly, in the absence of credible evidence, Zhao has failed to show eligibility for asylum or withholding. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

2. Substantial evidence supports the BIAs determination that Zhao failed to establish eligibility for CAT relief. Because Zhaos CAT claim is based on the same testimony that the IJ found to be not credible, it fails as well. See Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006). Zhao points to no other record evidence that the IJ or the BIA should have considered to support his CAT claim. See Farah, 348 F.3d at 1157.

PETITION FOR REVIEW DENIED.