Lead Opinion
Opinion by Judge CHHABRIA; Dissent by Judge SCHROEDER.
ORDER
The petition for rehearing is GRANTED. The opinion filed ■ on February 26, 2016, reported at
The superseding opinion reflects the following amendments:
•815 F.3d at 1175: In the first paragraph, <In contrast to an immigration judge, the BIA is not a finder of fact, so it cannot make the kind of credibility determination inherent in a decision to apply the falsus maxim. > has been replaced with <On a motion to reopen, the BIA cannot make the kind of credibility determination inherent in a decision to apply the falsus maxim. >
•815 F.3d at 1176: In the second paragraph, <But unlike an immigration judge, the BIA may not make findings of fact. 8 C.F.R. § 1003.1(d)(3)(iv); Rodriguez v. Holder,683 F.3d 1164 , 1173 (9th Cir.2012). Consistent with the BIA’s inability to make factual findings — including findings about witnesses’ credibility — > has been replaced with <But, in this circuit, >.
•815 F.3d at 1176: The paragraph break between the second and third paragraphs has been deleted.
•815 F.3d at 1176: In the third paragraph, <And only the fact-finder is in a position to decide which is which. > has been replaced with <And only a fact-finder who is empowered to make credibility determinations is in a position to decide which is which. >
•815 F.3d at 1176: In the last paragraph, <But neither would an immigration judge be prohibited from finding that Yang is being truthful now> has been replaced with <But an immigration judge would not be prohibited from finding that Yang is being truthful now>.
•815 F.3d at 1176: In the last paragraph, <In holding that the BIA could apply the falsus maxim to discredit evidence supporting a motion to reopen, the Second Circuit did not acknowledge or analyze these distinctions between the role of an immigration judge and the role of the BIA. See Qin Wen Zheng,500 F.3d at 146-48 . We therefore decline the government’s invitation to follow the Second Circuit’s decision here.> has been replaced with <Accordingly,*507 we decline the government’s invitation to follow the Second Circuit’s decision in Qin Wen Zheng, and hold instead that the BIA may not apply the falsus maxim to deny a motion to reopen. >
No changes have been made to Judge Schroeder’s dissent.
The parties may file further petitions for rehearing or rehearing en banc.
OPINION
This court has held that an immigration judge may use the maxim falsus in uno, falsus in omnibus — “false in one thing, false in everything” — to find that a witness who testified falsely in one respect at a removal hearing is also not credible in other respects. Enying Li v. Holder,
I.
Shouchen Yang is a native and citizen of the People’s Republic of China. He entered the United States on a nonimmigrant visa in January 2005 and overstayed. He subsequently applied for asylum, withholding of removal, and protection under the Convention against Torture. The asylum officer who initially processed Yang’s application referred him to an immigration judge, and Yang entered removal proceedings.
In removal proceedings, Yang testified that he had mobilized his co-workers to complain about corruption in the government-affiliated hotel where they worked, prompting local officials to have Yang arrested and beaten. But the immigration judge found that Yang’s testimony was not credible, and denied Yang’s applications for relief. The BIA dismissed Yang’s appeal from this decision, holding that the immigration judge’s credibility determination was not clearly erroneous.
Yang then filed a timely motion to reopen, asserting a new factual basis for relief. According to Yang, after he was ordered removed, he joined a Christian church whose members were persecuted in China. In support of his motion, Yang submitted an affidavit that detailed his purported religious conversion. The affidavit further alleged that, after Yang tried to mail religious literature to his wife in China, Chinese authorities threatened to send her to a forced labor camp. Yang also submitted a document that he identified as a letter from his wife, which described purported threats by Chinese authorities, as well as other documentary evidence.
The BIA denied Yang’s motion to reopen. In doing so, the BIA found that, because the immigration judge in removal proceedings had found that Yang’s testimony in those proceedings was not credible, the new affidavit that Yang submitted with his motion to reopen was also not credible. Specifically, the BIA held that Yang “has not shown why the Board should now accept the statements offered in support of the motion as reliable where his prior testimony has been found to lack credibility, and where [Yang] has not offered an explanation to overcome the Immigration Judge’s adverse credibility determination.”
Yang timely petitioned for review.
“We review the denial of a motion to reopen for abuse of discretion.” Yan Rong Zhao v. Holder,
III.
Under this court’s precedent, an immigration judge may apply the falsus maxim to find that a witness who testified falsely about one thing is also not credible about other things. Enying Li v. Holder,
But, in this circuit, “[w]e have long held that credibility determinations on motions to reopen are inappropriate.” Bhasin v. Gonzales,
The idea that the BIA could apply the falsus maxim to deny a motion to reopen is in tension with the BIA’s limited and deferential role in reviewing immigration judges’ credibility determinations in the first place. When the BIA reviews an immigration judge’s credibility determination, it asks only whether the determination was “clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i); see also Vitug v. Holder,
IV.
Our entire panel agrees on this legal rule: the BIA may not make adverse credibility determinations (including adverse credibility determinations based on the fal-sus maxim) in denying a motion to reopen.
The BIA’s decision states, in relevant part:
[T]he respondent has not shown why the Board should now accept the statements offered in support of the motion as reliable where his prior testimony has been found to lack credibility, and where the respondent has not offered an explanation to overcome the Immigration Judge’s adverse credibility determination. Accordingly, the respondent’s motion to reopen will be denied. See Matter of Coelho, 20 I. & N. Dec. 464, 472-73 (BIA 1992) [sic] (explaining that a party who seeks a remand or to reopen proceedings to pursue relief bears a “heavy burden” of proving that if proceedings before the Immigration Judge were reopened, with all the attendant delays, the new' evidence would likely change the result in the case).
As we read this passage, the BIA rejected the affidavit Yang offered in support of his motion to reopen because the immigration judge in removal proceedings had discredited Yang’s prior testimony. The’ BIA required Yang “to overcome the Immigration Judge’s adverse credibility determination” before it would accept his affidavit as “reliable.” And “reliable,” in this case, can only mean “credible”: Yang’s affidavit would only be unreliable if Yang were lying.
The BIA’s citation to Matter of Coelho does not change the fact that it impermis-sibly discredited Yang’s affidavit. We understand that citation to mean that, after Yang’s affidavit was' discredited, Yang’s remaining evidence was insufficient to justify reopening. But the BIA should instead have assessed the sufficiency of Yang’s evidence after taking Yang’s affidavit as true.
V.
Because the BIA may not make credibility determinations on a motion to reopen, the BIA’s decision to discredit Yang’s affidavit based on application of the falsus maxim was contrary to law, and therefore an abuse of discretion. See Yan Rong Zhao v. Holder,
GRANTED and REMANDED.
Notes
. Another issue on which the entire panel agrees is that the students from UC Irvine School of Law, Emily Cross and Ronald Park, are to be commended for their high-quality representation of Mr. Yang.
Dissenting Opinion
dissenting:
While I agree with the majority that the BIA should not deny motions to reopen by making adverse credibility determinations, I do not agree that the BIA denied this motion by doing so. The motion to reopen was premised upon facts Petitioner created after the IJ had ordered Petitioner removed. He then joined a banned
Assuming the facts are true and he did those things, such manufactured facts could not satisfy Petitioner’s heavy burden of showing the result should change. This is what the BIA concluded, citing Matter of Coelho, 20 I. & N. Dec. 464 (BIA 1992), a case that did not involve an adverse credibility finding, but did involve a failure of proof. The law students of U.C. Irvine are to be commended, but I must respectfully dissent from the decision that the BIA abused its discretion.