Yao Duan v. Eric H. Holder Jr.

U.S. Court of Appeals for the Ninth Circuit
Yao Duan v. Eric H. Holder Jr., 550 F. App'x 375 (9th Cir. 2013)
O'Scannlain, Hurwitz, Singleton

Yao Duan v. Eric H. Holder Jr.

Opinion

MEMORANDUM **

Yao Hua Duan, a Chinese citizen, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) found Duan’s testimony “inconsistent, implausible, and evasive,” and the BIA affirmed, citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), thus adopting the IJ’s adverse credibility determination. See Gutierrez v. Holder, 662 F.3d 1083, 1086 (9th Cir. 2011). Duan also petitions for review of the BIA’s decision denying her motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252 and deny the petition.

1. The adverse credibility determination was supported by substantial evidence in the record. There were numerous inconsistencies between Duan’s applications and her testimony regarding the alleged incidents that formed the basis for her applications. 8 U.S.C. § 1158(b)(1)(B)(iii); Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011) (holding that “inconsistencies regarding events that form the basis of the *376 asylum claim are sufficient to support an adverse credibility determination”). 1

2. Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), does not compel a contrary result. Here, unlike Ren, the adverse credibility determination was based on substantial evidence before the IJ, and we do not rely on an alternative holding by the IJ denying relief because of a failure to provide corroboration. See id. at 1089-93.

3. The BIA did not abuse its discretion in denying Duan’s motion to reconsider. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(1). The motion did not allege errors of fact or law, but instead was based on new evidence. The BIA properly construed the motion to reconsider as a motion to reopen, and thus did not abuse its discretion in denying the motion as untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2).

DENIED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1

. We do not endorse, however, the IJ's statement that an educated Chinese woman must have known that her country’s one-child policy violated her human rights. That finding finds no support in the record evidence.

Reference

Full Case Name
YAO HUA DUAN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent; Yao Hua Duan, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent
Status
Unpublished