Li Song v. Eric H. Holder Jr.

FILED

NOT FOR PUBLICATION MAR 01 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

LI SONG et al., No. 08-72474

Petitioner, Agency Nos. A096-052-348

A078-113-180

v.

ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *

Respondent.

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

Argued and Submitted February 14, 2013 Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and RAKOFF, Senior District Judge.**

Li Song and her husband Zhiwei Han, both natives of China, petition for

review of an order of the Board of Immigration Appeals (BIA) dismissing Li

Song’s appeal from an immigration judge’s (IJ) denial of her application for

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District Court for the Southern District of New York, sitting by designation. asylum and withholding of removal. Li Song claims Zhiwei Han as a…

dissenting:

I respectfully dissent. Song initially applied for asylum and withholding of removal in August 2002. I would treat Song’s July 2005 application as a supplement to her initial application. Compare In re Compean, 24 I. & N. Dec. 710 , 715-16 (Att’y Gen.2009) (describing the procedural history in In re J-E-C-), vacated on other grounds, 25 I. & N. Dec. 1 (Att’y Gen. 2009).

The Real ID Act’s framework for assessing credibility does not apply to an application, such as Song’s, submitted in 2002. See, e.g., Yan Liu v. Holder, 640 F.3d 918, 925 (9th Cir.2011). Applying pre-Real ID Act standards, I would hold that there was *629 no inconsistency in Song’s testimony that went to the “heart of’ her asylum and withholding claims and that would support the agency’s adverse credibility determination. See Singh v. Ashcroft, 301 F.3d 1109, 1111-12 (9th Cir.2002). I would therefore grant Song’s petition.

MEMORANDUM **

Li Song and her husband Zhiwei Han, both natives of China, petition for review *628 of an order of the Board of Immigration Appeals (BIA) dismissing Li Song’s appeal from an immigration judge’s (IJ) denial of her application for asylum and withholding of removal. Li Song claims Zhiwei Han as a derivative beneficiary of her application. The IJ denied Song’s claims after concluding, among other things, that she was not credible. We have jurisdiction pursuant to 8 U.S.C. § 1252 .

Where, as here, the BIA reviewed the IJ’s decision for clear error, we “look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion. In so doing, we review ... the reasons explicitly identified by the BIA, and then examine the reasoning articulated in the IJ’s oral decision in support of those reasons.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008).

We review adverse credibility determinations under the substantial evidence standard, Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009), and for applications for asylum filed on or after May 11, 2005, we apply the REAL ID Act’s standards governing adverse credibility determinations. In REAL ID Act cases,…