F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S H O U C H E

N Y A N G , Petitioner ,

v.

L O R E T T A E

. L Y

N C H , Attorney General, Respondent

. No. 12-71773

Ag ency No. A099-045-733

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted November 4, 2015—University of California, L os Ang eles

F iled F ebruary

26, 2016

B efore: Mary

M. Schroeder and Michelle T. F riedland, Circuit J udg es and Vince Chhabria, * District J u dg e.

Opinion by

J udg e Chhabria D issent by

J u dg e Schroeder

* T h e H o n orab l e V i n ce Ch h ab ria, Un ited States District J u d g e f o r th e No rth ern District o f

Calif o rn i a, sittin g b y

d esig n atio n

.Y A N G V

. L Y

N C H 2

SUMMARY * *

Im m igration

The panel g ranted a petition for r eview of the denial of a motion to reopen removal proceedi n g s, concluding that the B oard of I mmig ration Appeals er r e d w hen it applied the

max im falsus in uno, falsus in omnibus —“false in one thing
, false in every

thing ”— to r eject as not credible petitioner’s

new c laim for asy lum relief, based on a pr i or adverse credibility determination in underly ing removal proceeding s.

The panel ex plained that u nlike an immig ration judg e, the B oard may n ot make finding s o f fact, and must instead credit evidence supporting a motion to reopen unless that evidence is inherently u n b e l i evable. The panel stated that the falsus

max im cannot render an affidavit inherently u n b elievable because the max im is discretionary
, not mandat o r y , and the B oard as an appellate body is limited to revie wing the I J ’s factual finding s for clear error, rather tha n m a king f actual determinations in the first instance.
Dissenting
, J udg e Schroeder ag reed that the B oard is prohibited from making credibili ty determinations in considering a motion to reopen, but she does not vie w t h e B oard’s denial in this case to be premised on credibility , but rather petitioner’s failure to meet the heavy burden o f showing that the result in this case would chang e if t he case was reopened.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.Y A N G V

. L Y

N C H 3

COUNSEL

Certified L aw St u dents Ronald Park (arg ued) and Emily Cross (arg

u ed), supervised by Kathry n M. Davis and Peter R. Afrasiabi; University o f California, I rvine School of L a w; I rvine, California, for Petitioner.

J onathan Robbins (arg

ued), J ennifer R. Khouri, and J ennifer P. L eving s, Office of I mmig r at ion L itig ation; B e njamin C. Mi z er, Civil Division; U.S. Department of J u stice; W a shing ton, D.C., for Respondent.

OP INION

CHHAB RI A , District J udg e:

This court has held that an immig ration judg e may use the

max im falsus in uno, falsus in omnibus —“false in one thing
, false in every

thing ”—to find that a witness wh o t e stified falsely in one r espect at a removal h earing is also not credible in other r espects. E

nying Li v. Holder
, 738 F

. 3d 1160, 11 6 1

– 62 (9th Cir. 2013). The q uestion in this a

ppeal is whether the B oard o f I m m i g ration Appeals ( “B I A”) may do the same thing when considering a motion to reopen removal proceeding s

. W e c onclude it may not. I n contrast to an immig ration judg e, the B I A is n ot a finder of fact, so it cannot make the kind of c r e d ibility d etermination inherent in a decision to apply the falsus max im. B ecause the B I A a pplied t h e f a lsus max im in deny ing Shouchen Yang ’s motion to reopen, we g

rant his petition for review.Y A N G V

. L Y

N C H 4

I.

Shouchen Yang is a native and citiz en of the People’s Republic of China. H e en t e r e d the United States on a nonimmig rant visa in J a nuary 2005 a n d overstay ed. He subsequently applied for asy lum, withholding of remo v a l
, a n d protection under the Convention ag ainst Torture. The asy lum officer who initially processed Y ang ’s application referred him to an immig r a tion judg e, and Y ang entered removal proceeding s.

I n removal proceeding s, Yang tes t i f i ed that he h ad mobiliz ed his co-workers to complain a b out corruption in the g overnment-affiliated ho t el where they worked, prompting local officials to have Yang arrested and b e a t e n

. B ut the immig ration judg e found tha t Y ang ’s testimony was not credible, and denied Yang ’s applications for relief. T he B I A dismissed Yang ’s a

ppeal from this decision, holding that the immig ration judg e’s credibility determination w as not clearly

erroneous.
Yang then file d a timely motion to reopen, a sserting a
new f actual basis for relief. A ccording to Yang , after h e was ordered r emoved, he joined a Christian church whose members were persecuted in China. I n support of h is motion, Yang submitted an affi d avit that detailed his purported relig ious conversion. The affidavit further alleg ed that, a fter Yang tried to mail relig ious literature to his wife i n China, Chinese authorities threatened to send her to a forced la b o r camp. Yang also submitted a document that he identified a s
a letter from his wife, which described purported threats b y Chinese authorities, as well as other documentary evidence.Y A N G V

. L Y

N C H 5

T he B I A denied Y ang ’s motion to r eopen. I n doing s o , the B I A found that, because the immig ration judg e in removal proceeding s had found that Yang ’s testimony i n those proceeding s was not cre d i ble, the new affidavit that Yang

s u b mitted with his motion to reopen was also not cred i b l e. Specifically
, the B I A held that Yang “has not shown why the B oard should now accept the statements offered in support o f the motion a s reliable w her e his prior testimony h as been found to lack credibility
, and where [ Yang ] has not offered an
ex p lanation to overcome the I mmig ration J udg e’s adverse credibility

determination.”

Yang timely

petitioned for review.

II.

“W e review the denial o f a motion to reopen for a buse o f discretion.” Y

an Rong Zhao v. Holder
, 7 28 F .3d 1 144, 1147 (9th Cir. 2013). The B I A abuses its discretion when, a mong other thing s, it acts “contrary to law.” Id.

III.

Under this court’s precedent, an immig ration judg e may apply the falsus max im t o fi n d t hat a witness who testified falsely about one thing is also n ot credible about o ther thing s. Enying Li v. Holder
, 738 F

. 3d 1 160, 1161–62 (9th Cir. 2013). The Second Circuit h as g one further, holding th a t t h e B I A may also apply

the falsus max im, rely

ing on an immig r ation judg e’s p r i o r a dverse credibility determination to make its

own finding that evidence s u p p orting a motion to reopen is not credible. Qin W

en Zheng v. Gonzales
, 500 F .3d 143, 146–47 (2 d C i r

. 2 0 07). The Government would have us
a d o pt the Second Circuit’s reasoning and ex tend our p r i o rY A N G V

. L Y

N C H 6

decision in Enying Li to hold that the B I A (like the immig ration judg e in Enying Li ) may u se the falsus max im to discredit evidence tha t has not otherwise been found noncredible—here, Yang ’s affida v it in support of his motion to reopen.

B u t unlike an immig r ation judg e, the B I A may not make finding s of fact. 8 C.F .R. § 1003.1(d)(3) ( i v ) ; Rodriguez v

. Holder
, 683 F

. 3 d 1164, 1173 (9th Cir. 2012). Consistent with the B I A’s inability to make factual fi nding s—including finding s about witnesses’ c r edibility —“[ w] e have long h eld that credibility d et e rminations on motions to reopen a re i n a p p ropriate.” 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). T h e B I A must instead credit evidence supporting a motion to reop e n u nless that evidence is “inherently unbelievable.” Tadevosyan v. Holder
, 743 F .3d 1250, 1256 ( 9th Cir. 2014); see also Y an Rong Z

hao v

. Holder , 728 F

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

The falsus max im c annot render Yang ’s a ff i d avit “inherently un b e l ievable,” because the falsus max im is discretionary rather than mandatory

. The m a x i m “ a llows 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

. Sometim e s a witness lies about one thing but tells the truth ab o u t another thing

. O ther times a witness lies about every thing

. A nd only the f

act-finder is in a position to decide which is which. Here, b ased on our d ecision in Enying Li , an immig ration judg e could apply the falsus max im b a sed on Yang ’s prior testimony a

nd find that Yang ’s new story is not credible. F or that matter, the immigr a t i on judg e could find that Y ang ’s n ew story is not cre d i b l e for some other reason.Y A N G V

. L Y

N C H 7

B ut neither would an i m m ig ration judg e be p rohibited from finding that Yang is b eing truthful now, notwithstanding the conclusion that Yang ’s testimony in the p rior hearing was not credible.

The idea that the B I A could a pply the falsu s m a x im to deny a motion to reopen is in tension with the B I A’s limited and defe r e n tial role in reviewing immig ration judg es’ credibility determinations in the fir s t p lace. W hen the B I A reviews an immig ration judg e’s c re dibility determination, it asks only whether the determination was “clearly erroneous.” 8 C.F

. R. § 1 0 03.1(d)(3)(i); see also Vitug v. Holder
, 723 F .3d 1056, 1 063–64 (9th Cir. 2013). S o w hen the B I A denies an appeal from an adverse credibility determination, it does not make its own c redibility determination. I t merely concludes that the witness might n ot have been credible, i.e., that there

was enoug h evidence to support th e immig ration judg e’s finding

. The B I A, a s an appellate body
, d o e s not have the opportunity to observe the witness’s d e m e a nor, candor, o r other “ephemeral indicia of credibility .” Jibril v. G o n z a les
, 423 F .3d 1129, 1137 (9th Cir. 2005).

I n h old i n g t h a t the B I A could apply the falsus max im to discredit evidence supporting a motion to reopen, the Second Circuit did n ot acknowledg e or analy z e these distinctions between the role of an immig ration judg e and the role of the B I A. See Qin W

en Zheng
, 500 F .3d at 146–48. W e therefore decline th e g overnment’s invitation to follow the Second Circuit’s decision here.

IV.

Ou r en t i r e panel ag rees o n this leg al rule: the B I A may not make adverse credibility determinations (includingY A N G V

. L Y

N C H 8

a d v erse credibility determinations based o n the falsus maxi m ) in deny ing a motion to reopen. 1 W e part w a y s with our dissenting colleag ue only o ver whether the B I A v iolated that rule in this case.

The B I A’s decision states, in relevant part:

[ T] he re s pondent has not shown why the B o ard should now accept the statements

o f f e red in support of the motion as reliable

w h e r e his p rior testimony has been found to lack credibility
, and where the respondent has

n o t offered an ex planation to overcome th e I mmig r ati on J udg e’s adverse credibility determination. According ly
, the r espondent’s motion to reopen will be denied. See Matter of Coelho
, 20 I & N Dec. 464, 472–73 (B I A 1988) [ sic] (ex p laining that a party who seeks

a r emand or to reo p e n proceeding s to pursue relief bears a “heavy burden” o f proving that if proceeding s before the I mmig ra t ion J udg e
were r eopened, with all the a ttendant delay s, the new e v idence would likely chang e the result in the case).

As we read this p assag e, the B I A rejected the affidavit Yang

o ffered in support o f his motion to reopen becaus e t h e immig ratio n judg e in removal proceeding s had discredited Yang ’s prior testimony

. The B I A requ i r e d Yang “to

overcome the I mmig ration J ud g e’s adverse credibility

1 A n oth er issu e o n w

h i ch th e en tire p an el ag rees is th at th e stu d en ts f ro m UC Irv in e S c h o o l o f L aw , Em ily Cro s s an d Ro n ald P ark
, are to b e
co m m en d ed f o r th eir h ig h

- qu ality

rep resen t atio n

o f Mr. Yan g

.Y A N G V

. L Y

N C H 9

determination” before it woul d accept his affidavit a s “reliable.” And “ reliable,” in this case, c a n o n ly mean “credible”: Yang ’s affidavit would only be unreliable if Yang were ly ing

.
The B I A’s c itation to M

atter of Coelho d oes not chang e the fact that it impermissibly discredited Yang’ s a f fidavit. W e understand that c itat i o n to mean that, after Yang ’s affidavit w a s discredited, Yang ’s r e maining evidence was insufficient to justify reopening

. B ut the B I A should instead have assessed the sufficiency of Yang ’s evidence after taking Yang ’s affidavit as true.

V.

B e cause the B I A may not make credibility determinations

on a motion to reopen, the B I A’s decision to discredit Yang ’s affidavit based on a

p p lication of the fa l

sus max im was contrary to law, and therefore an abuse of discretion. See Y an Rong Zhao v. Holder
, 728 F .3d 1144, 114 7 (9 t h Cir. 2 013); Mejia v. A shcroft
, 2 9 8 F .3d 873, 878 (9th Cir. 2002). According ly
, we g rant Yang ’s p e t ition for review, a nd remand for further proceeding s consistent with this opinion.

G RANTED and REMANDED.

SCHROEDER, Circuit J udg e, dissenting :

W h ile I a g r e e with the majority that the B I A should not deny motions t o reopen b y making adverse credibility determinations, I do n ot ag ree that the B I A denied this motion by doing so. The motion to reopen was premised upon factsY A N G V

. L Y

N C H 10

Petitioner created after the I J 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 d id those thing s, such manufactured facts could not satisfy Petitioner’s heavy burden o f showing the r esult should chang e. This is what the B I A concluded, citing Matter of Coelho
, 20 I

. & N. Dec. 464 (B I A 1 992), a case that did not involve a n adverse credibility finding , but did involve a failure of proof. The law students of U.C. I r vine are to be commended, but I must respectfully dissent from the decision that the B I A abused its discretion.