FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHOUCHEN YANG,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 12-71773

Agency No. 

A099-045-733

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted 

November 4, 2015—University of California, Los Angeles

Filed February 26, 2016

Before: Mary M. Schroeder and Michelle T. Friedland,

Circuit Judges and Vince Chhabria,* District Judge.

Opinion by Judge Chhabria

Dissent by Judge Schroeder

* The Honorable Vince Chhabria, United States District Judge for the

Northern District of California, sitting by designation.
2 YANG V. LYNCH

SUMMARY**

Immigration

The panel granted a petition for review of the denial of a

motion to reopen removal proceedings, concluding that the

Board of Immigration Appeals erred when it applied the

maxim falsus in uno, falsus in omnibus—“false in one thing,

false in everything”— to reject as not credible petitioner’s

new claim for asylum relief, based on a prior adverse

credibility determination in underlying removal proceedings.

The panel explained that unlike an immigration judge, the

Board may not make findings of fact, and must instead credit

evidence supporting a motion to reopen unless that evidence

is inherently unbelievable. The panel stated that the falsus

maxim cannot render an affidavit inherently unbelievable

because the maxim is discretionary, not mandatory, and the

Board as an appellate body is limited to reviewing the IJ’s

factual findings for clear error, rather than making factual

determinations in the first instance. 

Dissenting, Judge Schroeder agreed that the Board is

prohibited from making credibility determinations in

considering a motion to reopen, but she does not view the

Board’s denial in this case to be premised on credibility, but

rather petitioner’s failure to meet the heavy burden of

showing that the result in this case would change if the case

was reopened.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
YANG V. LYNCH 3

COUNSEL

Certified Law Students Ronald Park (argued) and Emily

Cross (argued), supervised by Kathryn M. Davis and Peter R.

Afrasiabi; University of California, Irvine School of Law;

Irvine, California, for Petitioner.

Jonathan Robbins (argued), Jennifer R. Khouri, and Jennifer

P. Levings, Office of Immigration Litigation; Benjamin C.

Mizer, Civil Division; U.S. Department of Justice;

Washington, D.C., for Respondent. 

OPINION

CHHABRIA, District Judge:

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, 738 F.3d 1160,

1161–62 (9th Cir. 2013). The question in this appeal is

whether the Board of Immigration Appeals (“BIA”) may do

the same thing when considering a motion to reopen removal

proceedings. We conclude it may not. 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. Because the BIA applied

the falsus maxim in denying Shouchen Yang’s motion to

reopen, we grant his petition for review.
4 YANG V. LYNCH

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

subsequentlyapplied 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.
YANG V. LYNCH 5

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.

II.

“We review the denial of a motion to reopen for abuse of

discretion.” Yan Rong Zhao v. Holder, 728 F.3d 1144, 1147

(9th Cir. 2013). The BIA abuses its discretion when, among

other things, it acts “contrary to law.” Id.

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, 738 F.3d 1160, 1161–62 (9th Cir. 2013). 

The Second Circuit has gone further, holding that the BIA

may also apply the falsus maxim, relying on an immigration

judge’s prior adverse credibility determination to make its

own finding that evidence supporting a motion to reopen is

not credible. Qin Wen Zheng v. Gonzales, 500 F.3d 143,

146–47 (2d Cir. 2007). The Government would have us

adopt the Second Circuit’s reasoning and extend our prior
6 YANG V. LYNCH

decision in Enying Li to hold that the BIA (like the

immigration judge in Enying Li) may use the falsus maxim to

discredit evidence that has not otherwise been found noncredible—here, Yang’s affidavit in support of his motion to

reopen.

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—“[w]e have long held

that credibility determinations on motions to reopen are

inappropriate.” Bhasin v. Gonzales, 423 F.3d 977, 986 (9th

Cir. 2005); see also Ghadessi v. INS, 797 F.2d 804, 806–07

(9th Cir. 1986). The BIA must instead credit evidence

supporting a motion to reopen unless that evidence is

“inherently unbelievable.” Tadevosyan v. Holder, 743 F.3d

1250, 1256 (9th Cir. 2014); see also Yan Rong Zhao v.

Holder, 728 F.3d 1144, 1151 (9th Cir. 2013). 

The falsus maxim cannot render Yang’s affidavit

“inherently unbelievable,” because the falsus maxim is

discretionary rather than mandatory. The maxim “allows a

fact-finder to disbelieve a witness’s entire testimony,” Enying

Li, 738 F.3d at 1163 (emphasis added), but it does not require

a fact-finder to disbelieve the witness’s entire testimony. 

Sometimes a witness lies about one thing but tells the truth

about another thing. Other times a witness lies about

everything. And only the fact-finder is in a position to decide

which is which. Here, based on our decision in Enying Li, an

immigration judge could apply the falsus maxim based on

Yang’s prior testimony and find that Yang’s new story is not

credible. For that matter, the immigration judge could find

that Yang’s new story is not credible for some other reason. 
YANG V. LYNCH 7

But neither would an immigration judge be prohibited from

finding that Yang is being truthful now, notwithstanding the

conclusion that Yang’s testimony in the prior hearing was not

credible.

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, 723 F.3d

1056, 1063–64 (9th Cir. 2013). So when the BIA denies an

appeal from an adverse credibility determination, it does not

make its own credibility determination. It merely concludes

that the witness might not have been credible, i.e., that there

was enough evidence to support the immigration judge’s

finding. The BIA, as an appellate body, does not have the

opportunity to observe the witness’s demeanor, candor, or

other “ephemeral indicia of credibility.” Jibril v. Gonzales,

423 F.3d 1129, 1137 (9th Cir. 2005).

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.

IV.

Our entire panel agrees on this legal rule: the BIA may

not make adverse credibility determinations (including
8 YANG V. LYNCH

adverse credibilitydeterminations based on the falsus maxim)

in denying a motion to reopen.1 We part ways with our

dissenting colleague only over whether the BIA violated that

rule in this case.

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

1988) [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

1 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.
YANG V. LYNCH 9

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 impermissibly 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 maynot 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, 728 F.3d 1144, 1147 (9th Cir. 2013);

Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002). 

Accordingly, we grant Yang’s petition for review, and

remand for further proceedings consistent with this opinion.

GRANTED and REMANDED.

SCHROEDER, Circuit Judge, 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
10 YANG V. LYNCH

Petitioner created after the IJ had ordered Petitioner removed. 

He then joined a banned church, sent banned books to his

wife, and apparently had the authorities notified. 

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.