No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. DAOHUA YU, Petitioner,

Transcription

1 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 1 of 46 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAOHUA YU, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Agency No. A ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS RESPONDENT S BRIEF STUART F. DELERY LINDSAY CORLISS Acting Assistant Attorney General Trial Attorney United States Department of Justice Office of Immigration Litigation Civil Division Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station WILLIAM C. PEACHEY Washington, D.C Assistant Director (202) Office of Immigration Litigation ATTORNEYS FOR RESPONDENT

2 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 2 of 46 TABLE OF CONTENTS STATEMENT OF JURISDICTION... 1 RESTATEMENT OF THE ISSUES... 2 STATEMENT OF THE FACTS... 3 I. BACKGROUND AND INITIATION OF PROCEEDINGS... 3 II. THE IMMIGRATION JUDGE S DECISION... 9 III. BOARD S DISMISSAL OF YU S APPEAL...11 SUMMARY OF THE ARGUMENT...13 ARGUMENT...14 I. STANDARD OF REVIEW...14 II. RELEVANT STATUTORY AND REGULATORY PROVISIONS...16 A. Asylum...16 B. Withholding Of Removal...18 III. IV. YU POINTS TO NO EVIDENCE THAT COMPELS FINDING HE ESTABLISHED HIS CREDIBILITY...18 THE BOARD CORRECTLY DETERMINED YU FAILED TO MEET HIS BURDEN OF PROOF, EVEN IF MATERIAL OMISSIONS IN HIS WRITTEN STATEMENT ARE IGNORED...24 V. YU WAS PROVIDED DUE PROCESS...28 CONCLUSION...33 STATEMENT OF RELATED CASES BRIEF FORMAT CERTIFICATION

3 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 3 of 46 CERTIFICATE OF SERVICE

4 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 4 of 46 TABLE OF AUTHORITIES Acewicz v. INS, 984 F.2d 1056 (9th Cir. 1993)...17 Aruta v. INS, 80 F.3d 1389 (9th Cir. 1996)...15 Bandari v. INS, 227 F.3d 1160, (9th Cir. 2000)...31 Berroteran-Melendez v. INS, 955 F.2d 1251 (9th Cir. 1991)... 15, 17 Carriche v. Ashcroft, 335 F.3d 1009 (9th Cir. 2003)...14 Chebchoub v. INS, 257 F.3d 1038 (9th Cir. 2001)...19 Cinapan v. Holder, 567 F.3d 1067 (9th Cir. 2009)...12 Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000)...16 Cuadras v. INS, 910 F.2d 567 (9th Cir. 1990)...18 Cunanan v. INS, 856 F.2d 1373 (9th Cir. 1988)... 28, 30 Don v. Gonzales, 476 F.3d 738 (9th Cir. 2007)... 21, 23 Echeverria- Hernandez v. INS, 923 F.2d 688 (9th Cir. 1991)...18

5 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 5 of 46 Estrada v. INS, 775 F.2d 1018 (9th Cir. 1985)...17 Estrada-Posadas v. INS, 924 F.2d 916 (9th Cir. 1991)...5, 18 Fisher v. INS, 79 F.3d 955 (9th Cir. 1996)... 16, 17 Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006)... 5 Halim v. Holder, 590 F.3d 971 (9th Cir. 2009)...26 Hammad v. Holder, 603 F.3d 536 (9th Cir. 2010)...12 Hernandez-Guadarrama v. INS, 394 F.3d 681 (9th Cir. 2001)...29 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)... 17, 18 INS v. Elias-Zacarias, 502 U.S. 478 (1992)... 15, 17, 19 INS v. Stevic, 467 U.S. 407 (1984)...18 Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010)... 25, 26 Jibril v. Gonzales, 423 F.3d 1129 (9th Cir. 2005)...19 Kalouma v. Gonzales, 512 F.3d 1073 (9th Cir. 2008)...19

6 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 6 of 46 Kazlauskas v. INS, 46 F.3d 902 (9th Cir. 1995)...17 Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988),...21 Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998)...13 Kovac v. INS, 407 F.2d 102 (9th Cir. 1969)...26 Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999)...15 Leon-Barrios v. INS, 116 F.3d 391 (9th Cir. 1997)...15 Leon-Hernandez v. INS, 926 F.2d 902 (9th Cir. 1991)...22 Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004)...12 Li v. Ashcroft, 378 F.3d 959 (9th Cir. 2004)... 10, 11 Lin v. Gonzales, 472 F.3d 1131 (9th Cir. 2007)...12 Lin v. U.S. Att'y Gen., 555 F.3d 1310 (11th Cir. 2009)...12 Lopez-Urenda v. Ashcroft, 345 F.3d 788 (9th Cir. 2003)...16

7 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 7 of 46 Malkandi v. Holder, 576 F.3d 906 (9th Cir. 2009)...19 Mejia-Paiz v. INS, 111 F.3d 720 (9th Cir. 1997)...8, 19 Nagoulko v. INS, 333 F.3d 1012 (9th Cir. 2003)... 27, 28 Naji Sleman v. Holder, 365 Fed. App'x 828 (9th Cir. 2010)...26 Pedro-Mateo v. INS, 224 F.3d 1147 (9th Cir. 2000)...15 Platero-Cortez v. INS, 804 F.2d 1127 (9th Cir. 1986)...16 Prasad v. INS, 47 F.3d 336 (9th Cir. 1995)... 15, passim Quan v. Gonzales, 428 F.3d 883 (9th Cir. 2005)...27 Ramos v. INS, 246 F.3d 1264 (9th Cir. 2001)... 3 Sangha v. INS, 103 F.3d 1482 (9th Cir. 1997)... 15, 17 Rivera-Cruz v. INS, 948 F.2d 967 (5th Cir. 1991)...20 Shirazi-Parsa v. INS, 14 F.3d 1424 (9th Cir. 1994)... 16, 18 Singh v. Gonzales, 403 F.3d , 32

8 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 8 of 46 Singh v. Gonzales, 491 F.3d 1019 (9th Cir. 2007)... 20, 32 Singh v. INS, 134 F.3d 962 n.14 (9th Cir. 1998)...16 United States v. Chem. Found., Inc., 272 U.S. 1 (1926)...21 ADMINISTRATIVE DECISIONS In re S-M-J-, 21 I. & N. Dec. 722 (BIA 1997)...17 In re T-Z-, 24 I. & N. Dec. 163 (BIA 2007)...28 Matter of R-S-H-, 23 I. & N. Dec. 629 (BIA 2003)...21 M-F-W- & L-G-, 24 I. & N. Dec. 633 (BIA 2008)...13 STATUTES The Immigration and Nationality Act of 1952, as amended: Section 101(a)(42), 8 U.S.C. 1101(a)(42)... 17, 25 Section 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A)...17 Section 208(a), 8 U.S.C. 1158(a)...16

9 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 9 of 46 Section 208(b)(1)(B)(iii), 8 U.S.C. 1158(b)(1)(B)(iii)... 19, 20 Section 212(a)(6)(A)(i), 8 U.S.C. 1182(a)(6)(A)(i)... 6 Section 241(b)(3), 8 U.S.C. 1231(b)(3)... 17, 18 Section 242(a), 8 U.S.C. 1252(a)... 2 Section 242(b)(4)(B), 8 U.S.C. 1252(b)(4)(B)...15 Section 242(b)(1),(b)(2), 8 U.S.C. 1252(b)(1), (b)(2)... 2 REGULATIONS 8 C.F.R C.F.R (b)(1) C.F.R (c)(1) C.F.R C.F.R (b)(3)(b) C.F.R. 1158(b)(1)(B)... 17, 19 8 C.F.R (b) C.F.R C.F.R (a)(1)(ii)... 3

10 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 10 of 46 8 C.F.R (c) C.F.R

11 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 11 of 46 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAOHUA YU, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Agency No. A ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS RESPONDENT S BRIEF STATEMENT OF JURISDICTION Daohua Yu ( Yu ) petitioned for review of a final removal order issued by the Board of Immigration Appeals ( Board ), which denied his applications for asylum, withholding of removal, and protection under the regulations

12 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 12 of 46 implementing the Convention Against Torture 1 ( CAT ). Certified Administrative Record ( AR ) 3-5. The Board s jurisdiction was based on 8 C.F.R (b)(3)(b), which grants the Board appellate jurisdiction over an appeal from an immigration judge s decision in removal proceedings. The Court s jurisdiction is governed by section 242(a) of the Immigration and Nationality Act ( INA ), 8 U.S.C. 1252(a), as amended by the REAL ID Act of 2005, Pub. L. No , Div. B., 119 Stat Yu s petition for review was timely, and venue is proper. 8 U.S.C. 1252(b)(1), (b)(2); see AR 3-5, RESTATEMENT OF THE ISSUES I. Whether the record evidence compels the conclusion, contrary to the agency s findings, Yu testified credibly, despite having told an asylum officer, while under oath, he had been detained in China for fifteen days, a claim he later denied making. II. Whether, even disregarding the flaws in Yu s written statement, he established eligibility for relief from removal, where there is no direct or circumstantial evidence his wife underwent an abortion, he experienced past 1 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, 39th Sess., U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984). Congress authorized the Attorney General to implement the CAT through regulation. See FARRA 2242(b). Those regulations are found at 8 C.F.R

13 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 13 of 46 persecution, or he has a well-founded fear of future persecution based on his resistance to the Chinese family planning policy. III. Whether admitting, as a business record, the asylum officer s detailed, contemporaneously-recorded notes of Yu s asylum interview constituted a due process violation, despite reasonable efforts to make the retired officer available for cross examination. STATEMENT OF THE FACTS I. BACKGROUND AND INITIATION OF PROCEEDINGS Yu is a native and citizen of China. AR 2, 77, 337. He entered the United States on an unknown date, without being admitted or paroled. AR 77, 323, 337. On June 24, 2006, Yu submitted an affirmative asylum application, 2 in which he 2 By the time an applicant seeks judicial review of the denial of asylum in the court of appeals, the application has been heard, considered, and rejected by two or three different agency adjudicators. Asylum is available to aliens through two administrative routes. An alien like Yu who is not in removal proceedings may file an asylum application with DHS. 8 C.F.R (b)(1)-(2). This affirmative application is adjudicated by a trained asylum officer in a non-adversarial interview. 8 C.F.R ; see In re S-M-J-, 21 I. & N. Dec. 722, (BIA 1997); Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir. 2001). In 2009, DHS granted more than 12,000 affirmative applications. See DHS Office of Immigration Statistics, 2009 Yearbook of Immigration Statistics, Table 16, page 43, available at ois_yb_2009.pdf. If DHS does not grant the application, the case is referred to the Department of Justice (Executive Office for Immigration Review ( EOIR )), where the alien receives a de novo hearing before an immigration judge. 8 C.F.R (c)(1), , , (a)(1)(ii), (c)). In 2010, immigration 3

14 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 14 of 46 claimed he had entered the United States on April 26, AR 314; but see AR 323 (in Yu s personal statement, he asserted he arrived in Hawaii on April 28, 2006). Yu claimed he feared persecution in China because his wife was allegedly forced to have an abortion and to have an intrauterine device ( IUD ) inserted after she became pregnant in violation of the Chinese family planning policy. AR 323. Responding to the question asking whether he or any of his family members had ever been arrested or detained, he checked a box to respond no. AR 319. Yu also submitted a letter from his wife, written to support his application for relief. AR 309. His wife wrote she had been pregnant with her second child, and had failed to go to a scheduled gynecological examination on October 8, Id. As a result of her absence at the examination, seven or eight people went to her house, and after her husband s reasoning did not persuade them to leave, they dragged her to a vehicle. Id. Yu s wife claimed these individuals took her to a judges granted sixty-one percent of the affirmative applications that were referred by DHS. See U.S. Dep t of Justice, EOIR, FY 2010 Statistical Yearbook, at Figure 17, page K2, available at statspub/fy10syb.pdf. In addition, an alien who is in removal proceedings may file a defensive asylum application as relief against removal. In 2010, immigration judges granted thirtyfive percent of defensive applications. Id. at Figure 18, page K2. The overall grant rate by immigration judges in 2010 for all asylum applications (affirmative and defensive) was fifty-one percent. Id. at Figure 16, page K1. An alien has an opportunity to appeal an adverse decision to the Board, where a decision may be rendered by either one or three Board members. 8 C.F.R

15 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 15 of 46 gynecological examination, and upon finding about [her] pregnancy, they sent [her] to a hospital for an abortion operation. Id. On March 29, 2007, Yu was interviewed in a non-adversarial proceeding with an asylum officer, regarding his application for relief. See AR 165, 168, 322. He was represented by chosen counsel at that time, but counsel did not attend the asylum interview because, she opined, the whole asylum interview process is... a farce. AR 140. The asylum interview was monitored for mistranslations by a certified monitor who affirmed he would truthfully, literally, and fully report to the Asylum Officer, any mistranslation observed during the course of the asylum interview. AR 168. The asylum officer took notes on the asylum application on separate note paper when answers required more explanation. AR , The asylum officer changed the date of Yu s arrival in the United States to April 26, AR 314. Next to the question regarding Yu s fear of returning to China, the asylum officer wrote Yu states he owes relatives money and would be asked to pay. AR 318. The asylum officer also wrote Yu quarreled with officials at the time of abortion in 2004 afraid they might come after him. Id. The asylum officer noted Yu stated he was detained from October 9, 2004 through October 24, 2004, apparently by the public security branch in his town. AR 167. The asylum officer asked Yu when he was detained; he noted Yu responded 5

16 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 16 of 46 around 3:00 p.m. arrived at detention. AR 167. The asylum officer asked what happened when Yu arrived at detention, and recorded Yu responded he had been searched. Id. The asylum officer noted he asked about the other fourteen days of detention, and according to his notes, Yu responded he had been kept alone in a small room where there was a bed and nothing else. Id. The asylum officer also noted Yu said there was no wash basin or toilet in the room where he was detained, and when he needed to go to the toilet, someone at the door would take you. Id. Based on the asylum officer s notes, he mentioned to Yu he was surprised at the lack of detail in Yu s asylum application regarding the detention, given how significant the experience was to his application. Id. At the conclusion of the interview, the asylum officer referred Yu s application to immigration court. AR 336. Accordingly, on October 1, 2007, the Department of Homeland Security ( DHS ) issued Yu a Notice to Appear ( NTA ), charging him with removability pursuant to INA 212(a)(6)(A)(i), 8 U.S.C. 1182(a)(6)(A)(i), as an alien present in the United States without inspection or parole. AR On January 28, 2008, Yu appeared before an immigration judge with chosen counsel, admitted the factual allegations in the NTA, and conceded removability as charged. AR Yu also expressed his intent to renew his application for asylum and withholding 6

17 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 17 of 46 of removal based on his claim of persecution under China s coercive population control policy. Id. On May 7, 2009, Yu appeared in immigration court and testified his wife became pregnant for a second time, in violation of the family planning policy in China, in August, AR 98. He asserted on October 8, 2004, the couple was informed by village officials his wife was required to go to a gynecological checkup an order with which she did not comply. Id. Yu claimed the next day, eight officials came to their house and, despite his attempts to explain it to them, telling them that [his] wife, physically was not too well, took his wife from the house. AR 99. He claimed, right away, they took her to the hospital, and have her have the abortion operation. AR 100. He conceded he did not have any documents to show his wife had an abortion. AR 100, 119. Yu testified he had never been detained while he was living in China. AR , 106. He stated he never told the asylum officer he had been detained for fifteen days. AR 104. Rather, he claimed he told the asylum officer Chinese officials had threatened to detain him for fifteen days, if he made any trouble. AR 105. He testified he did not remember telling the asylum officer had arrived at a detention facility at 3:00 p.m. on October 9, 2004, or that he did not get food on his first day of detention, as was recorded in the asylum officer s notes. AR 107. He 7

18 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 18 of 46 also claimed he did not remember telling the asylum officer he had been kept alone in a small room for fourteen days. Id. He also stated he did not remember telling the asylum officer there was a bed in the room but no sink or toilet in the room. Id. According toyu, the day his wife allegedly had her abortion, he had gone to the village committee on female affairs to ask if there was a way to go around the abortion laws by posting a fine. AR He stated he had not mentioned having gone to the committee on female affairs in his asylum application because when I was asked by the, my attorney, I just mentioned that I pleaded to the officials, and, then I was saying that my wife was not in good health. AR 113. After this meeting, Yu claimed, he went to the hospital, where he assumed his wife was taken for an abortion. AR 114. He claimed he found her in the obstetriciangynecologist ( OB/GYN ) department of the hospital. AR 115. Regarding Yu s wife s letter, which states on October 9, 2004, she was taken from the house to a gynecological exam, and then after the exam, the officials took her to the hospital, the DHS counsel asked if Yu was surprised his wife would say she went to the gynecological exam, considering Yu had testified she was taken directly from their house to go to the hospital for the abortion. AR 116. Yu responded, yes, I m surprised. Id. Yu testified he continued to work as a farmer after the abortion and also did odd jobs. AR 127. He confirmed the notes regarding owing his relatives 8

19 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 19 of 46 money were accurate. AR 105. He also confirmed the asylum officer was correct in writing he had become a Christian after he moved to the United States. Id. At the conclusion of the May 7, 2009, hearing, the immigration judge continued the case to allow the DHS and Yu s attorney to attempt to locate the asylum officer and invite him to testify. AR , 145. On May 29, 2009, the parties again appeared in immigration court, and the DHS attorney informed the judge she had attempted to locate the asylum officer, and found out he had retired. AR 149. She told the immigration judge that the DHS put in a request to locate him and see if he was willing to testify, but ultimately the asylum office told her it was unable to contact the retired officer. AR 150. The immigration judge, therefore, determined the asylum officer was unavailable to testify, and admitted the asylum officer s notes as a business record. Id. Yu declined to present any other witnesses and declined the offer to present additional testimony. AR II. THE IMMIGRATION JUDGE S DECISION On May 29, 2009, following a hearing on the merits, the immigration judge denied Petitioner s applications for relief and ordered him removed to China. AR The immigration judge found Yu not credible based on significant discrepancies in his account concerning his alleged detention and his wife s abortion. AR 70. The immigration judge acknowledged the account recorded in 9

20 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 20 of 46 the asylum officer s notes, and found it was inconsistent with the account Yu provided in his asylum application and during testimony. AR The immigration judge noted it is striking how detailed the questions and answers are in the asylum officer s notes. AR 68. Specifically, the immigration judge referred to answers the asylum officer attributed to Yu, which stated he was kept alone in a small room for the fifteen days of detention, he had one bed with no wash basin or toilet, and if he needed to use a toilet, he had to stand and wait for someone to escort him to an outside toilet. AR 68. Although the immigration judge acknowledged Yu maintains that this discrepancy is unreliable, because the officer is not present, the immigration judge concluded, the notes are so detailed, and the handwriting is so similar to that on the asylum application, that this argument is not persuasive. AR The immigration judge also addressed Yu s argument the change in his story was a minor inconsistency because he had nothing to gain from saying he had never been detained, but the immigration judge concluded his case was analogous to Li v. Ashcroft, 378 F.3d 959 (9th Cir. 2004), where the petitioner did have something to gain from changing his story because he recanted only when presented with evidence of the story he told in his interview. AR

21 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 21 of 46 The immigration judge also found Yu s account of the day of his wife s alleged abortion was inconsistent with the story his wife told in her affidavit. AR The immigration judge noted, while Yu s wife stated officials first took her to a gynecological exam and then to the hospital, Yu testified his wife was taken directly to the hospital for an abortion. AR Therefore, the immigration judge found because of the major discrepancy regarding detention, and the discrepancies regarding what happened at the day of the abortion, that [Yu] has not presented a credible claim for asylum, and denied Yu s asylum application. AR 70. For the same reasons, the immigration judge also found Yu not credible for withholding of removal and denied that relief as well. Id. The immigration judge also denied voluntary departure for failure to establish he entered the United States more than one year prior to his application for relief from removal. AR 71. III. BOARD S DISMISSAL OF YU S APPEAL On June 23, 2009, Yu appealed the immigration judge s decision to the Board, which on March 11, 2001, dismissed his appeal. AR 3-5, Specifically, the Board found there was no clear error in the immigration judge s adverse credibility determination. AR 3. The Board also rejected Yu s contention that the inconsistencies cited by the immigration judge were minor or retracted. AR 4. The Board found the record supported the immigration judge s 11

22 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 22 of 46 determination Yu s account of the circumstances surrounding his wife s alleged abortion was inconsistent with the account his wife provided in her letter. AR 3-4 (citing AR , 309). Additionally, the Board determined the immigration judge reasonably found Yu s assertions that the asylum officer s notes were unreliable and he had not claimed to have been detained for fifteen days unpersuasive. AR 4. Ultimately, the Board found Yu s agreement with other details noted on the application, as well as the detailed follow up question and answer notations, supported the immigration judge s determination Yu s explanation of the discrepancy was unpersuasive. Id. The Board determined Yu was not denied due process when the asylum officer s notes were admitted in the officer s absence, because the record indicates that reasonable steps were made to make the asylum officer, who has since retired, available for cross examination. AR 4 (citing Cinapan v. Holder, 567 F.3d 1067, (9 th Cir. 2009)). Additionally, the Board noted Yu was allowed an opportunity to present evidence to countervail the asylum officer s notes. AR 4 (citing Hammad v. Holder, 603 F.3d 536, 546 (9 th Cir. 2010)). Alternatively, the Board found, even if Yu had not omitted his claimed acts of resistance in his written statement, Yu did not establish eligibility for relief. AR 5. The Board found there is no direct or circumstantial evidence in the record 12

23 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 23 of 46 establishing that his wife underwent an abortion and he himself experienced harm rising to the level of past persecution, or that he is at risk of facing persecutory harm in the future, on account of these acts of resistance. AR 5 (citing In re M- F-W- & L-G-, 24 I. & N. Dec. 633, (BIA 2008); In re J-S-, 24 I. & N. Dec. 520, 542 (BIA 2008)). The Board noted Yu had not appealed the immigration judge s denial of CAT protection and voluntary departure, and therefore, the Board deemed those issues waived. AR 3, n.2. Consequently, the Board dismissed Yu s appeal. AR 3-5. This petition for review followed. SUMMARY OF THE ARGUMENT The Court should deny the petition for review because Yu identifies no evidence that compels reversal of the Board s adverse credibility findings, which are supported by substantial evidence. Yu told an inconsistent story to the asylum officer who interviewed him, and his claim he did not tell the asylum officer he had been detained for fifteen days was unpersuasive given the asylum officer s detailed notes. The inconsistency and unpersuasive explanation constituted a proper basis for an adverse credibility determination, and a denial of asylum and withholding of removal. 3 3 As noted by the Board, Yu failed to exhaust his CAT protection claim to the Board and does not argue he established CAT protection eligibility here, thereby waiving the claim. AR 3, n. 3; see generally Pet. Br; Fed. R. App. P. 28(a)(9)(A). 13

24 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 24 of 46 The Board also properly determined Yu failed to meet the burden of proof, even if he had not omitted any mention of his resistance to the family planning policy in his written statement. Yu failed to show he experienced harm rising to the level of persecution in the past, given he now claims he was never detained or beaten, and failed to present evidence the Chinese government would persecute him in the future based on his resistance to the family planning policy. Finally, Yu was not denied due process when the immigration judge admitted, as a business record, an asylum officer s notes from Yu s asylum interview. The DHS made reasonable efforts to make the retired asylum officer available for cross examination. Moreover, the notes were created by a government official acting in his official capacity and are highly detailed. As such, this Court should deny the petition for review. ARGUMENT I. STANDARD OF REVIEW The Board dismissed Yu s appeal in a separate opinion affirming the immigration judge s decision and, therefore, the Court reviews the Board s decision as the final determination. Carriche v. Ashcroft, 335 F.3d 1009, 1014 (9th Cir. 2003). The Court must treat administrative findings of fact as conclusive unless any reasonable adjudicator would be compelled to conclude to the 14

25 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 25 of 46 contrary. See 8 U.S.C. 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Aruta v. INS, 80 F.3d 1389, 1392 (9th Cir. 1996). To determine whether a reasonable person would have been compelled to reach a contrary conclusion, a Court reviews the record to determine whether the facts found are supported by substantial evidence. Elias-Zacarias, 502 U.S. at 481. Review for substantial evidence is extremely deferential to the administrative factfinder. Prasad v. INS, 47 F.3d 336, (9th Cir. 1995) (post-elias-zacarias clarification of substantial evidence review). Petitioners have to point to evidence that was so compelling that no reasonable factfinder could have reached a contrary conclusion. See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997); Elias-Zacarias, 502 U.S. 478 (establishing a deferential substantial evidence test for our review of the BIA s factual findings). The substantial evidence standard applies equally to adverse credibility findings. Berroteran- Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1991). An alien has to show that his evidence was so compelling that no reasonable factfinder could have failed to believe him. Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997). Where it is possible for the Court to draw two inconsistent conclusions from the evidence, the Court must deny the petition. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000) (citing Lambert v. Ackerley, 180 F.3d 997, 1012 (9th Cir. 1999)); 15

26 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 26 of 46 see also Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir. 1994) (court cannot reverse if it simply disagrees with the immigration judge s evaluation of the facts). The Court reviews legal questions, including claims of due process violations, de novo. See Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir. 2003). In order to succeed on a due process claim, an alien must demonstrate the proceeding was so fundamentally unfair that [he] was prevented from reasonably presenting [his] case. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986)). An alien must also show prejudice, which requires a showing that the outcome of the proceeding may have been affected by the alleged violation. Colmenar, 210 F.3d at 971. II. RELEVANT STATUTORY AND REGULATORY PROVISIONS A. Asylum Asylum is available to applicants who demonstrate statutory eligibility as a refugee and merit a favorable exercise of the Attorney General s discretion. 8 U.S.C. 1158(a); e.g., Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc); Prasad, 47 F.3d at 338. A refugee is defined as any person who is unable or unwilling to return to his or her country of origin because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, 16

27 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 27 of 46 membership in a particular social group, or political opinion. 8 U.S.C. 1101(a)(42); Fisher, 79 F.3d at 960; Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1993). Persecution, as contemplated by the INA, must be inflicted either by the government or by individuals or organizations that the government is unable or unwilling to control. Sangha, 103 F.3d at Yu bore the burden of proving eligibility for relief. See 8 C.F.R. 1158(b)(1)(B), 1229a(c)(4), 1231(b)(3); see Elias-Zacarias, 502 U.S. at ; Berroteran-Melendez, 955 F.2d at (citing Estrada-Posadas v. INS, 924 F.2d 916, 918 (9th Cir. 1991)); In re S-M-J-, 21 I. & N. Dec. 722, 724 (BIA 1997). Asylum applicants must present specific facts demonstrating that they are refugees, by showing either past persecution or a well-founded fear of future persecution. 8 U.S.C. 1101(a)(42)(A); Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir. 1995); Berroteran-Melendez, 955 F.2d at 1255 n.3. Applicants who have not established past persecution and who, therefore, do not raise a presumption of a well-founded fear of persecution, may prove asylum eligibility by proving a subjective fear of future persecution that is objectively reasonable. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Fisher, 79 F.3d at 960; Berroteran- Melendez, 955 F.2d at The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution. The objective 17

28 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 28 of 46 inquiry requires a showing by credible, direct, and specific evidence of facts supporting a reasonable fear of persecution on the relevant ground. Prasad, 47 F.3d at 338 (quoting Shirazi-Parsa, 14 F.3d at 1427) (internal citation omitted). B. Withholding Of Removal An asylum application made in removal proceedings is also considered a request for withholding of removal under INA 241(b)(3), 8 U.S.C. 1231(b)(3). See 8 C.F.R (b); Estrada v. INS, 775 F.2d 1018, 1020 (9th Cir. 1985). To establish eligibility for withholding of removal, an applicant must demonstrate a clear probability of persecution. See generally Cuadras v. INS, 910 F.2d 567, 572 (9th Cir. 1990). The clear probability standard is more difficult to meet than the well-founded fear of persecution standard in asylum cases. Cardoza- Fonseca, 480 U.S. at ; see also INS v. Stevic, 467 U.S. 407 (1984). An applicant who fails to meet the standard for asylum necessarily fails to meet the more stringent standard for withholding of removal. Echeverria- Hernandez v. INS, 923 F.2d 688, 691 (9th Cir. 1991). III. YU POINTS TO NO EVIDENCE THAT COMPELS FINDING HE ESTABLISHED HIS CREDIBILITY Yu s asylum application is subject to the REAL ID Act because his application was filed after May 11, AR ; REAL ID Act 101(h). Accordingly, the inconsistencies relied upon by the Board in upholding the adverse 18

29 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 29 of 46 credibility finding need not go to the heart of their claim. Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005); 8 U.S.C. 1158(b)(1)(B)(iii). The Court must uphold the Board s credibility findings so long as they are properly based on the totality of the circumstances and it provided clear and cogent reasons for the finding. Jibril, 423 F.3d at 1138 n.1; see 8 U.S.C. 1158(b)(1)(B)(iii); Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009) (internal citations omitted). Yu had the burden of persuading the factfinder his evidence was credible. Kalouma v. Gonzales, 512 F.3d 1073, 1079 (9th Cir. 2008); Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir. 1997). Like any litigant in an adversarial proceeding, Yu ran the risk that any flaws in his testimony or evidence would give rise to an inference he was not telling the truth, and that the factfinder might discount his testimony in its entirety. 8 U.S.C. 1158(b)(1)(B)(iii); see Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001) (one inconsistency may support an adverse credibility determination). Having failed to persuade the factfinder he was credible, Yu has the burden of persuading this Court that despite the incongruence between the story he told in immigration court and the story he told the asylum officer, as well as inconsistencies between his testimony and his wife s supporting letter, a reasonable factfinder would have been compelled to have found him credible. Elias-Zacarias, 502 U.S. at 481. Yu cannot meet his burden. 19

30 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 30 of 46 The record supports the agency s determination that the discrepancies between the story Yu told in his merits hearing and the story he told to the asylum officer warranted the adverse credibility finding. AR 3-4. Under the REAL ID Act standard, codified at 8 U.S.C. 1158(b)(1)(B)(iii), the factfinder may base an adverse credibility finding on, inter alia, the consistency of [the applicant s] statements with other evidence of record. Here, record evidence of notes, taken by an asylum officer during Yu s asylum interview, shows a series of questions and answers revealing Yu told the asylum officer he had been detained for fifteen days in China, beginning at 3:00 p.m. on October 9, 2004, when he was searched, then kept alone for the next fourteen days in a small room with a bed and nothing else, without a wash basin or toilet. AR 167. This account is inconsistent with Yu s testimony in immigration court, and his previously submitted written statement, where he claimed he had never been detained in China. AR 104, It was reasonable for the immigration judge and the Board to conclude from the asylum officer s notes Yu had claimed, while under oath, he had been detained in China for fifteen days. See Rivera-Cruz v. INS, 948 F.2d 967, 962 (5th Cir. 1991) (holding that the Board is entitled to draw reasonable inferences from the record evidence); cf. Singh v. Gonzales, 491 F.3d 1019 (9th Cir. 2007). 20

31 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 31 of 46 Yu s argument the immigration judge and Board should not have considered the notes, merely because the officer was not present in immigration court, is insufficient to prove the notes are unreliable. See Don v. Gonzales, 476 F.3d 738, 744 (9th Cir. 2007) (immigration judge is not required to interpret evidence as advocated by the respondent); Matter of R-S-H-, 23 I. & N. Dec. 629, 637 (BIA 2003). It was reasonable, in light of the record evidence, for the Board to credit the notes taken by the asylum officer. AR 4. The asylum officer was interviewing Yu as part of his official duties. See AR , 336. [P]ublic officials are presumed to perform their duties properly without motive or interest other than to submit accurate and fair reports. Keith v. Volpe, 858 F.2d 467, 481 (9th Cir. 1988), cert. denied, 493 U.S. 813 (1989); United States v. Chem. Found., Inc., 272 U.S. 1, (1926) ( The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. ). In addition to having the presumption of regularity, the asylum officers s notes were particularly persuasive. He did not have a personal interest in the outcome of the case, and had no bias against any of the participants in the case. See AR , Indeed, Yu makes no assertion of any bias by the asylum officer. See generally Pet. Br. Moreover, the notes are detailed, and include several probing questions regarding 21

32 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 32 of 46 Yu s alleged experience while detained from October 9, 2004, to October 24, 2004 all of which Yu apparently answered. AR 167. The extra pages of notes are also linked with the asylum application by a written response under the question regarding previous arrests and imprisonment, wherein the asylum officer wrote: states he was detained for 15 days from 10/14/04 10/24. Where detained? (see notes). AR 319. Furthermore, the immigration judge found and Yu does not dispute the handwriting in the notes appears to be the same as the handwriting on the asylum application, where the asylum officer made other corrections Yu verified were accurate during testimony, including his date of arrival and that he owes his relatives money. AR 105, 134, The agency reasonably found Yu s explanation for the discrepancies between his testimony and the asylum officer s account insufficient to rehabilitate his credibility. AR 4. Yu testified in immigration court he had not told the officer he had been detained for fifteen days, but merely told him he had been threatened with detention if he made trouble. AR 105. This does not explain the level of detail contained in the asylum officer s notes, where several questions and answers probe into the details of this supposed detention. AR 167. Moreover, even if this Court were to find this explanation plausible, it does not compel the conclusion Yu s testimony was more persuasive than the asylum officer s notes. See Leon- 22

33 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 33 of 46 Hernandez v. INS, 926 F.2d 902, 904 (9th Cir. 1991) ( [T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency s finding from being supported by substantial evidence. ). Additionally, the Board properly rejected Yu s argument on appeal his denial of statements made in an asylum interview constituted a minor inconsistency, given he denied making the statements after being informed his present testimony was inconsistent with prior statements. AR 4, The Board also properly relied on inconsistencies between Yu s immigration court testimony and his wife s statement in finding Yu incredible. AR 3-4. Yu testified his wife was taken directly to the hospital for an abortion after officials discovered her pregnancy. AR His wife submitted a letter in which she claimed she had been taken for a gynecological exam prior to being taken for an abortion. AR 309. When confronted with the inconsistency between his account and his wife s assertion she had been taken for a gynecological examination prior to being taken to the hospital, Yu testified he was surprised she would have written this in her letter. AR 116. To this Court, Yu acknowledges he testified his wife had been taken right away to the hospital for the abortion operation, but claims he later clarifies that the checkup or pre-abortion examination was not done in the hospital. Pet. Br. 12. Contrary to his assertions, however, the 23

34 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 34 of 46 quotation in the record he cites for this assertion is actually an explanation of how women in his village generally get gynecological checkups, not an explanation of what happened to his wife on the day of her abortion. AR The DHS counsel asked Yu, even before the first child, [Yu s wife] never went for regular gynecological exams? AR 115. Yu then explained she had gone for gynecological exams but people usually went to a temporary office in the village for the checkup. AR 116. Yu s purported explanation simply is not supported by the record. IV. THE BOARD CORRECTLY DETERMINED YU FAILED TO MEET HIS BURDEN OF PROOF, EVEN IF MATERIAL OMISSIONS IN HIS WRITTEN STATEMENT ARE IGNORED The Board correctly held, even if the material flaws in his testimony and written statement are ignored, Yu failed to establish eligibility for asylum because there is no direct or circumstantial evidence in the record establishing that his wife underwent an abortion and he himself experienced harm rising to the level of past persecution, or that he is at risk of facing persecutory harm in the future, on account of these acts of resistance. AR 5. As a preliminary matter, Yu did not address this finding in his opening brief, and therefore has waived any challenge to this holding. See generally Pet. Br; Fed. R. App. P. 28(a)(9)(A). Accordingly, this Court should dismiss the petition for review, with respect to this finding. 24

35 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 35 of 46 In any event, the Board s findings are supported by substantial evidence. The record supports the Board s finding there was insufficient evidence to establish Yu s wife underwent an abortion, given Yu was not credible, proffered no medical records to support his contentions, and submitted no independent supporting statements to establish she suffered past harm. See AR 100. However, even if Yu s wife had undergone an abortion, Yu could not establish, per se, he suffered past persecution based on his wife s experience. AR 3; Jiang v. Holder, 611 F.3d 1086, 1093 (9th Cir. 2010); see In re J-S-, 24 I. & N. Dec. at ( [T]he spouse of the physical victim of [a population control] procedure is not someone who can be considered per se to have faced, or to have a well-founded fear of facing, persecution on account of resisting a coercive population control program... based solely on the fact that he or she is married to the victim ). In J-S-, the Attorney General overruled prior Board precedent by holding 8 U.S.C. 1101(a)(42) does not permit per se asylum entitlement for spouses of people who have undergone forced abortion or involuntary sterilization. 24 I. & N. at 537. In that decision, the Attorney General concluded a spouse may still qualify for relief if he can show, inter alia, other resistance to China s coercive population control program. See id. at This Court accepted that holding in Jiang, 611 F.3d at To prove a claim based on other resistance to the 25

36 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 36 of 46 population control policy in China, Yu needed to show: (1) his acts rose to the level of overt opposition, (2) he endured harm rising to the level of persecution, and (3) the harm was a direct result of his resistance. See Lin v. Gonzales, 472 F.3d 1131, 1135 (9th Cir. 2007). Yu failed to establish the second prong of that criteria, and therefore, the Board properly found he failed to establish eligibility for asylum, even if flaws in his evidence are ignored. Indeed, no evidence compels the conclusion, contrary to that of the Board, Yu established he endured harm rising to the level of persecution. AR 3; see Jiang, 611 F.3d at 1086; see also Lin v. U.S. Att y Gen., 555 F.3d 1310, (11th Cir. 2009) (even though alien resisted a coercive population control program, he failed to show harm rising to the level of persecution)). Persecution is an extreme concept, and requires more than verbal harassment or intimidation. Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004); Kovac v. INS, 407 F.2d 102, (9th Cir. 1969). For example, this Court has held being detained for a short period of time and minor beatings do not usually rise to the level of persecution. Naji Sleman v. Holder, 365 Fed. App x 828, 829 (9th Cir. 2010) ( His brief 2002 detention and beating are insufficient to constitute past persecution, standing alone. ); Halim v. Holder, 590 F.3d 971, 976 (9th Cir. 2009) (a series of incidents, including a single arrest and beating, does not constitute persecution); Gu v. Gonzales, 454 F.3d 26

37 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 37 of , (9th Cir. 2006) (beating and three-day detention did not constitute past persecution). Here, Yu retracted his statement, made before an asylum officer, he had been detained for fifteen days. AR ; compare Prasad, 47 F.3d at 339 ( single four-to-six-hour detention, in which Petitioner was hit on his stomach and kicked from behind, insufficient to compel a finding of past persecution); Quan v. Gonzales, 428 F.3d 883, (9th Cir. 2005) ( Using an electrically-charged baton on a prisoner, however, may constitute persecution, even when there are no long-term effects and the prisoner does not seek medical attention ). Indeed, Yu does not allege he was physically harmed at all, and even testified after his wife was taken to get an abortion, he merely followed and attempted to persuade village officials to allow him to post a fine in order to allow his wife to continue the pregnancy. AR ; compare Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (persecution requires more than just offensive mistreatment or harassment). As this Court has noted, physical abuse should be significant in order to compel a finding of persecution, and Yu has not even alleged he was subject to any conduct that approached that level. See AR 112; Nagoulko v. INS, 333 F.3d 1012, 1017 (9th Cir. 2003). Therefore, no record 27

38 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 38 of 46 evidence compels reversal of the Board s determination that Yu failed to meet his burden to establish eligibility for asylum or withholding of removal. 4 V. YU WAS PROVIDED DUE PROCESS Yu argues the asylum officer s notes should not have been admitted because he was not provided an opportunity to cross examine the asylum officer. Pet. Br. 8. In an opinion from 1988, the Ninth Circuit stated that the government must make a reasonable effort in INS proceedings to afford the alien a reasonable opportunity to confront the witnesses against him or her. Cunanan v. INS, Additionally, Yu also failed to proffer sufficient evidence to compel the conclusion, contrary to the agency s finding, he will face future persecution as a result of resistance to the family planning policy. See AR 5. In addition to not submitting evidence he would be physically harmed in the future, Yu also did not allege, much less establish, he suffered from economic persecution in the past resulting from his purported resistance to the family planning policy. AR 4. In any event, to prevail on an economic-persecution claim, Yu needed to establish he suffered the deliberate imposition of [a] substantial economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life which was sufficiently severe to constitute a threat to [his] life or freedom. See In re T- Z-, 24 I. & N. Dec. 163, 173 (BIA 2007). In this case, Yu never complained he struggled to meet basic needs, and instead testified he was dissatisfied with doing menial work before he chose to come to the United States. AR 124; see Zehatye, 453 F.3d at 1186 (stating substantial economic deprivation may be persecution if it constitutes a threat to life or freedom but that economic disadvantage alone is insufficient). Yu did not testify he will be unable to work if he is returned to China, but merely claimed he would have to return to working in a factory, not because of his resistance to the family planning policy, but because the profession on his household registry dictates his options. AR Yu s fears of lack of professional mobility do not meet the asylum standard. See Nagoulko, 333 F.3d at

39 RESTRICTED Case: , 10/11/2012, ID: , DktEntry: 18, Page 39 of 46 F.2d 1373, 1375 (9th Cir. 1988). The Ninth Circuit also held the [former] INS may not use an affidavit from an absent witness unless the INS first establishes that, despite reasonable efforts, it was unable to secure the presence of the witness at the hearing. Hernandez-Guadarrama v. INS, 394 F.3d 681 (9th Cir. 2001). Here, reasonable efforts were made to secure the presence of the asylum officer. The immigration judge continued the case to allow time to find the asylum officer and invite him to testify. AR 143 (the immigration judge declined to continue the case the next week because it was too soon for [DHS counsel] to locate this [asylum officer]. ). Before the next hearing, the DHS counsel contacted the asylum office and was told the officer had retired. AR 149. At that point, she went ahead and still made a request, that even though he s retired, that they attempt to locate him, and see if he was willing to testify. AR The DHS counsel stated the United States Citizenship and Immigration Services called her and told her they were unable to contact the asylum officer. AR 150. Only after the DHS took responsibility for trying to locate the witness to have him testify, did the immigration judge determine the witness was unavailable and admit the notes as a business record. AR Yu argues here he was denied a full and fair hearing because he did not have an opportunity to prepare for the absence of the Government s witness. He 29