Phiri v. Holder, 120314 FED9, 10-73513

Docket Nº:10-73513
Party Name:CATHERINE PHIRI, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
Judge Panel:Before: FERNANDEZ and IKUTA, Circuit Judges, and DANIEL, District Judge.
Case Date:December 03, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit



ERIC H. HOLDER, Jr., Attorney General, Respondent.

No. 10-73513

United States Court of Appeals, Ninth Circuit

December 3, 2014


Submitted November 18, 2014 [**] San Francisco, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A095-198-920

Before: FERNANDEZ and IKUTA, Circuit Judges, and DANIEL, [***] District Judge.


Catherine Phiri ("Phiri") petitions for review of the Board of Immigration Appeals' ("BIA") denial of her application for asylum.1 See 8 U.S.C. § 1158. We deny the petition.

(1) Phiri first asserts that the BIA erred because it upheld a decision of a new Immigration Judge ("IJ") that was issued after a remand2 by the BIA when it determined that there was no transcript (or recording) of the first hearing and decision. We disagree. As the BIA stated, Phiri and the government effectively stipulated that the IJ should conduct a new hearing and issue a new decision. Certainly, Phiri did not object to that approach when she was before the IJ and, in fact, expressly embraced it. The issue was waived. See Gonzalez-Rivera v. INS, 22 F.3d 1441, 1444 (9th Cir. 1994). In any event, the BIA's remand order did not restrict the scope of the IJ's authority to rehear and redecide the case upon remand; it expansively indicated that the IJ could take all "necessary and appropriate" steps. Due to that lack of express limitations, the IJ was not foreclosed from proceeding as he did. See Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir. 2010). Thus, the BIA did not err.3

(2) Phiri then argues that the BIA erred when it agreed with the IJ that she was not credible.

The BIA's determination that an alien is not eligible for asylum must be upheld if "'supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). "It can be reversed only if the evidence presented . . . was such that a reasonable factfinder would have to conclude that the requisite" persecution existed. Id.; see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). When an alien seeks to overturn the BIA's adverse determination, "he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the...

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