United States v. 2020-10-23 | 17-72366 | YANBO ZHU V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YANBO ZHU; HAIJIU JING; YUCHAO
JING,

Petitioners,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 17-72366

Agency No. A200−266−535
A200−266−536
A200−266−537

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted October 20, 2020
**

Honolulu, Hawaii

Before: WALLACE, BEA, and BENNETT, Circuit Judges.

Petitioner Yanbo Zhu, her spouse, and her child, natives and citizens of the
People’s Republic of China, seek review of the decision of the Board of
Immigration Appeals (“BIA”) denying asylum, withholding of removal, and

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 23 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2

protection under the Convention Against Torture (“CAT”).
1
Zhu also seeks review
of the BIA’s adverse credibility determination. We have jurisdiction under 8
U.S.C. § 1252 and review for substantial evidence “denials of asylum, withholding
of removal, and CAT relief” as well as “factual findings, including adverse
credibility determinations.” Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir.
2017) (citations omitted). To reverse, we “must determine that the evidence not
only supports a contrary conclusion, but compels it.” Silva-Pereira v. Lynch, 827
F.3d 1176, 1184 (9th Cir. 2016) (citation omitted).
Because “the BIA reviewed the IJ’s credibility-based decision for clear error
and ‘relied upon the IJ’s opinion as a statement of reasons’ but ‘did not merely
provide a boilerplate opinion,’” we “review here the reasons explicitly identified
by the BIA, and then examine the reasoning articulated in the IJ’s . . . decision in
support of those reasons.” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014)
(quoting Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)).
Here, the IJ identified, and the BIA relied on, specific instances of
inconsistencies, lack of detail, and omissions in Zhu’s testimony. See Shrestha v.
Holder, 590 F.3d 1034, 1040, 1044 (9th Cir. 2010) (observing that inconsistency,
candor, and lack of detail are all relevant factors under the totality of the

1
Zhu’s spouse and child have a derivative asylum claim through Zhu, and
therefore their claims rise or fall with hers. See 8 U.S.C. § 1158(b)(3).

3

circumstances approach). For example, the IJ found an inconsistency between
Zhu’s testimony and the evidentiary record with respect to the removal of the
allegedly forcibly inserted intrauterine device (“IUD”). Zhu testified that she had
experienced severe side effects and had been self-medicating with pain relievers
following the IUD’s insertion, but, the record shows that she waited approximately
nine months after entry into the United States to have the IUD removed. When
asked about the delay, Zhu was unable to provide an explanation. Nothing in the
record compels a conclusion that the adverse credibility finding was erroneous.
While Zhu argues that there are alternative explanations for the
inconsistencies, “the IJ adequately identified problems with [Zhu]’s testimony . . .
and we are not compelled to conclude that [Zhu] was credible.”
2
Wang, 861 F.3d at
1008; see also Zamanov v. Holder, 649 F.3d 969, 974 (9th

Cir. 2011) (noting that
plausible alternative explanations for inconsistencies do “not compel the finding
that the IJ’s unwillingness to believe [the petitioner’s] explanation . . . was
erroneous”).
Moreover, Zhu’s contention that the BIA’s affirmance of the IJ’s decision

2
Because we find the BIA’s conclusions were supported by substantial evidence,
we need not consider whether the decision can be upheld on the basis that Zhu
failed to produce adequate corroborative evidence. See Bhattarai v. Lynch, 835
F.3d 1037, 1046 (9th Cir. 2016) (considering corroborative evidence only after
finding the adverse credibility determination was not supported by substantial
evidence).

4

was erroneous based on the lack of notice given to her to produce the second
medical booklet is unavailing. In evaluating whether Zhu was coerced into a forced
abortion, the IJ reviewed all the medical records Zhu submitted, and when the IJ
asked Zhu about the booklet Zhu did not provide, the IJ found Zhu’s explanation
insufficient—that her sister could not locate the second medical booklet that
documented medical appointments around her pregnancy. Neither the IJ nor the
BIA were obligated to give Zhu notice that this specific booklet be produced given
our determination that the non-corroboration grounds for the adverse credibility
determination are supported by substantial evidence. See Bhattarai, 835 F.3d at
1043 (“The notice-and-opportunity requirement applies when the applicant’s
testimony is ‘otherwise credible.’” (citation omitted)).
Therefore, because we are not compelled to reverse the IJ’s finding that Zhu
was not credible or that her testimony was not sufficiently corroborated, Zhu’s
asylum application fails. Because Zhu bases her withholding of removal and CAT
claims on a finding that she was credible, these claims also fail. Zhu’s failure to
meet her burden of proof for her asylum claim means that she “necessarily fails to
carry the greater burden of establishing eligibility for withholding of removal.” See
Wang, 861 F.3d at 1009. In addition, Zhu’s CAT claim also fails because, without
credible testimony, the remaining evidence does not compel a finding of clear
probability of torture upon her return to China. See id.

5

The petition for review is DENIED.