Liu v. Holder
2011 WL 635276
9th Cir.2011Background
- Liu, a Chinese Falun Gong practitioner, entered the U.S. in 2000; her mother arranged travel with smugglers.
- At the airport, Liu claimed she left China for work and to support her parents, denying Falun Gong involvement.
- An asylum officer later found Liu credible and she added Falun Gong to her claim during the asylum interview.
- An IJ denied relief based on an adverse credibility determination, citing date discrepancies, failure to mention Falun Gong initially, and inconsistencies about her uncle’s arrest and Falun Gong practice.
- The IJ also found Liu had filed a frivolous asylum application based on four grounds, some overlapping with credibility grounds.
- The BIA adopted the IJ’s credibility finding but upheld the frivolousness finding, and the petition was remanded in light of In re Y-L-.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Credibility vs. frivolousness standards | Liu argues credibility finding is supported; frivolousness requires separate heightened proof. | Hearing officials tied credibility issues to both adverse credibility and frivolousness; grounds overlap but standards differ. | Adverse credibility upheld; frivolousness finding vacated for lack of proper notice/opportunity. |
| Adequacy of notice and opportunity to address frivolous grounds | Liu was not given sufficient pre-closure opportunity to address frivolous grounds. | IJ provided some grounds; BIA found notices adequate. | Not adequate; four grounds lacked sufficient opportunity to explain; frivolousness vacated. |
| Due process concerns | IJ prejudged merits or acted prosecutorially. | No prejudicial error; no improper prosecutorial role. | No due process violation found. |
Key Cases Cited
- Li v. Ashcroft, 378 F.3d 959 (9th Cir. 2004) (airport interviews may be limited impeachment sources; credibility substantial evidence standard)
- Yan Xia Zhu v. Mukasey, 537 F.3d 1034 (9th Cir. 2008) (vague airport-submission detail cannot support adverse credibility)
- Soto-Olarte v. Holder, 555 F.3d 1089 (9th Cir. 2009) (requirements for adverse credibility determinations)
- In re Y-L-, 24 I. & N. Dec. 151 (BIA 2007) (frivolousness framework and procedural requirements)
- Khadka v. Holder, 618 F.3d 996 (9th Cir. 2010) (heightened standards for frivolousness; preponderance standard)
- Ahir v. Mukasey, 527 F.3d 912 (9th Cir. 2008) (adopted Y-L- framework; proper review)
- Cortez-Pineda v. Holder, 610 F.3d 1118 (9th Cir. 2010) (REAL ID Act timelines and evidence standards)
- Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004) (burden of proof for relief and connection to credibility)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (pre-REAL ID Act standards; standard of review in BIA adoption)