Jiang v. Holder

• Decision Date: 12 June 2014
• Docket Number: No. 09–70900.,09–70900.
• Citation: 754 F.3d 733
• Parties: LIANHUA JIANG, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

754 F.3d 733

LIANHUA JIANG, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–70900.

United States Court of Appeals,

Ninth Circuit.

Submitted Aug. 30, 2013.^*

Filed June 12, 2014.

Joseph S. Porta, Law Offices of Cohen, Porta & Kim, Los Angeles, CA, for Petitioner.

Liza S. Murcia, Attorney, Tony West, Assistant Attorney General, and Anthony C. Payne, Senior Litigation Counsel, United States Department of Justice Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A099–044–559.

Before: DIARMUID F. O'SCANNLAIN and CARLOS T. BEA, Circuit Judges, and GLORIA M. NAVARRO, Chief District Judge.^**

Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

NAVARRO, Chief District Judge:

Lianhua Jiang (“Petitioner”), a native and citizen of China, petitions for review of the Board of Immigration Appeals (“BIA”) decision, which substantially adopted the order of the Immigration Judge (“IJ”) that denied asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In denying Petitioner's application, the IJ found Petitioner not credible. Petitioner now petitions for review and argues that the IJ's adverse credibility determination is based on impermissible grounds and is not supported by substantial evidence.

We have jurisdiction under 8 U.S.C. § 1252. In light of the highly deferential standard of review, we deny the petition.

I. FACTS AND PROCEEDINGS BELOW

Petitioner is a native and citizen of the People's Republic of China and is of ethnic Korean descent. She also claims to be a Christian. Petitioner entered the United States in June 2005 and, on August 4, 2005, she submitted an application for asylum, withholding of removal, and protection under CAT.

A

In her asylum declaration, Petitioner claims that she is seeking asylum because of religious persecution by the Chinese government. Specifically, Petitioner alleges that she began attending Christian services at an unofficial “house church” in October 2003 and was baptized on Christmas Day 2003. Petitioner's declaration further states that, on January 16, 2005, while attending a church service at the house church, the police arrested her for attending an illegal meeting. Petitioner asserts that the police detained her for seventeen days.

The asylum declaration also describes the police treatment that Petitioner endured during her detention. First, she claims that the police took her to an interrogation room, slapped her face, accused her of illegal activity, and threatened to send her to a labor camp if she refused to confess. Additionally, the declaration explains that, when she refused to confess to the police's allegations, the police began yelling and kicking her legs and back until she lost consciousness. When she later regained consciousness, she was in a jail cell and was still feeling the effects of the physical abuse. Later, the police forced her to read the government newspaper and write reports on the articles contained therein. After her detention, Petitioner decided to leave China and seek asylum in the United States.

B

After an interview with an asylum officer, Petitioner's application was referred to an IJ for removal proceedings. At her removal hearing, Petitioner testified that the police interrogated her during the detention. However, when asked whether the police did anything else, “[b]esides interrogating [her],” Petitioner responded only that the police “forced [her] to read government newspaper” and then write about the subject of the newspaper articles. She also testified that, to ensure that she read the newspapers, the police threatened to put her parents in jail.

Petitioner was asked four times whether anything else happened during her detention, other than being forced to read the government newspaper. Each of these four times, Petitioner failed to mention the physical abuse that she expressly described in her asylum declaration. After the fourth time, Petitioner's attorney stated “[b]ut on your statement you say that they kicked you.” In response to this statement, the IJ confirmed that the attorney was attempting to rehabilitate the Petitioner. Then, after the IJ noted that Petitioner had failed to testify that she was physically abused, Petitioner attempted to reconcile this inconsistency by distinguishing the interrogation from her time in jail.

After further questioning, Petitioner testified that she was interrogated in an “interrogation room” that was part of the “police station and jail.” Petitioner further explained that she understood the previous questioning about her treatment while she was detained in the jail to relate only to what occurred “in the jail, inside of the cell.” After she was reminded of her previous statements in her asylum declaration, Petitioner testified that the police slapped her while she was in the interrogation room. She also testified that soon thereafter, a person began kicking her in her lower back, leg, and body until she “fell down to the ground” and eventually lost consciousness. She testified that she regained consciousness in a jail cell. On that same day, the police began forcing her to read the government newspaper.

C

In addition to testimony about Petitioner's detention in China and Petitioner's religious activities, the IJ also heard testimony about Petitioner's living arrangements after she arrived in the United States. Petitioner testified that, after she entered the United States, she traveled to Los Angeles and contacted her “roommate,” whom she later identified as “Mr. Im.” She further testified that she was living with Mr. Im, his wife, and his son.

The IJ also heard testimony from Mr. Im, during which he confirmed that Petitioner was living in his home. In response to this confirmation, the IJ commented “[t]hat's convenient,” and then asked “[d]oes anyone else live there?” Mr. Im confirmed that his wife also lives with him, but also noted that “she comes and goes.” The IJ then requested that Mr. Im's wife provide testimony, but Mr. Im's wife refused.

D

In the IJ's oral ruling, she found that Petitioner was removable as charged and denied Petitioner's application for asylum, withholding of removal, and protection under CAT. The IJ concluded that Petitioner failed to provide sufficient credible evidence to establish her eligibility for the requested relief.

Relying primarily on the inconsistencies between Petitioner's asylum declaration and her testimony before the IJ, the IJ first found Petitioner not credible. The IJ was chiefly concerned with Petitioner's failure to testify about being threatened with being sent to a labor camp and her failure to testify about the physical abuse that she suffered during her detention. The IJ emphasized that Petitioner was prompted multiple times and, nevertheless, each time failed to testify about the physical abuse. Additionally, the IJ was concerned that Petitioner testified about her 2003 baptism in China only after the IJ specifically asked about any significant events that occurred between the date on which Petitioner became a Christian and the beginning of her detention. Finally, the IJ supported her adverse credibility finding by rejecting Petitioner's attempt to reconcile her testimony with the statements in her asylum declaration.

E

Petitioner filed a timely Notice of Appeal of the IJ's decision with the BIA. The BIA ultimately rejected all of Petitioner's arguments and dismissed her appeal. On appeal to the BIA, Petitioner first objected to the IJ's adverse credibility determination. The BIA reviewed the IJ's decision for clear error and affirmed the IJ's adverse credibility finding and the denial of Petitioner's application. Consequently, the BIA dismissed Petitioner's appeal in an order summarizing the IJ's oral ruling.

In addition, Petitioner argued that the IJ deprived her of a full and fair hearing by failing to act as a neutral fact-finder. Specifically, Petitioner asserted that the IJ demonstrated impermissible moral judgment through her commentary on the relationship between Petitioner and her roommate, Mr. Im. Petitioner also argued that the IJ conducted “aggressive” questioning that “interrupted the hearing.” The BIA rejected these arguments. The BIA further determined that, even to the extent that the IJ made improper or unnecessary comments during the hearing, these comments did not reflect impropriety. Rather, these comments represented the IJ's efforts to ascertain the nature of Petitioner's relationship with each witness, and thereby assess each witness's credibility. For these reasons, the BIA concluded that the hearing was fundamentally fair.

II. STANDARD OF REVIEW

“Where, as here, the BIA adopts the IJ's decision while adding some of its own reasoning, we review both decisions.” Lopez–Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.2011). We review the BIA's factual findings, including adverse credibility determinations, for substantial evidence. Salaam v. INS, 229 F.3d 1234, 1237–38 (9th Cir.2000). This standard of review is “extremely deferential: ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (quoting 8 U.S.C. § 1252(b)(4)(A)-(B)). “Thus, when a petitioner contends that the IJ's findings are erroneous, the petitioner ‘must establish that the evidence not only supports that conclusion, but compels it.’ ” Id. (quoting Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998)).

We review the BIA's determination of purely legal questions de novo. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). Claims of due process violations in immigration proceedings are also reviewed de novo. Lopez–Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir.2003).

III. ADVERSE CREDIBILITY DETERMINATION

Because Petitioner filed her asylum application after May 11, 2005, the REAL ID Act...