Aiying Zhao v. Jefferson Sessions
697 F. App'x 552
9th Cir.2017Background
- Petitioner Aiying Zhao, a 59-year-old Chinese national, sought withholding of removal under 8 U.S.C. § 1231(b)(3) claiming a forced abortion in China.
- An Immigration Judge (IJ) found Zhao not credible and gave diminished weight to corroborating evidence (an abortion certificate) after concluding Zhao filed a frivolous asylum application and submitted a fabricated "Home Letter.”
- The Board of Immigration Appeals (BIA) dismissed Zhao’s appeal; Zhao petitioned this Court for review under 8 U.S.C. § 1252.
- The IJ applied the REAL ID Act’s "totality of the circumstances" standard for adverse credibility (considering candor, plausibility, consistency, fabrication) and identified specific reasons for disbelief.
- The IJ also concluded Zhao failed to prove she was subject to a forced abortion; the opinion notes the IJ and BIA may have erred in requiring proof of future persecution but deems any such error harmless because Zhao failed to prove the underlying forced-abortion claim.
- A concurring opinion reasons Zhao is permanently ineligible for withholding under INA § 1158(d)(6) because she filed a frivolous asylum application after proper notice, and thus withholding is barred as an INA "benefit."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ’s adverse credibility finding is supported by substantial evidence | Zhao contends IJ improperly discredited her testimony and gave undue weight to inconsistencies | Government defends IJ’s findings based on totality (inconsistency, evasive answers, fabricated documents, frivolous asylum filing) | Held: Substantial evidence supports IJ’s adverse credibility determination under REAL ID Act; dismissal affirmed |
| Whether IJ erred in weighing frivolous asylum filing and fabricated "Home Letter" | Zhao argues IJ should not have relied on those to discredit her core claim | Gov. argues willingness to file falsehoods before tribunal goes to heart of credibility | Held: IJ properly considered and relied on frivolous filing and fabricated letter as a principal reason to find Zhao not credible |
| Whether IJ erred treating testimony about pregnancy capacity as evasive/inconsistent | Zhao says she was confused and answers were ambiguous, so IJ erred labeling them evasive or implausible | Gov. says initial question was clear and answers became evasive/inconsistent | Held: IJ did not err in finding Zhao’s answers evasive and inconsistent |
| Whether a frivolous asylum finding permanently bars withholding of removal under INA § 1158(d)(6) | Zhao (implicitly) argues withholding still available and BIA applied regulation allowing withholding despite frivolous asylum filings | Concurrence: § 1158(d)(6) plainly makes alien permanently ineligible for INA "benefits," including withholding; BIA regulation cannot override statute | Held: Majority reaches merits and affirms denial on credibility/substance; concurrence argues petition should be denied on statutory ineligibility ground (permanent bar) without reaching merits |
Key Cases Cited
- Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003) (substantial-evidence review of BIA/IJ factual findings)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (REAL ID Act totality-of-circumstances standard for credibility)
- Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003) (standard that petitioner must show record compels contrary result)
- Garrovillas v. INS, 156 F.3d 1010 (9th Cir. 1998) (credibility review principles)
- Tang v. Gonzales, 489 F.3d 987 (9th Cir. 2007) (extending Qu to victims of forced abortion concerning withholding entitlement)
- Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 2005) (victims of forced sterilization entitled to withholding as matter of law)
- Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) (courts apply statute as written; role of judiciary in statutory interpretation)