Ying Zhang v. Mukasey

MEMORANDUM **

Ying Zhang (Zhang), a native and citizen of China, petitions for review of the decision of the Board of Immigration Appeals (BIA) affirming the denial by an immigration judge (IJ) of his requests for asylum and withholding of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review the BIA’s opinion, which independently reviewed the record and did not state that it adopted the IJ’s decision, for substantial evidence. See Ahmed v. Keisler, 504 F.3d 1183, 1190-91 (9th Cir.2007).

The BIA acknowledged that the minor inconsistencies in Zhang’s testimony did not support an adverse credibility finding, but concluded that “testimony relating to the respondent’s alleged Falun Gong association, which involves the basis of the respondent’s alleged fear of persecution, provided the Immigration Judge with legitimate reason to question the veracity of the respondent’s claim.” The BIA cited two portions of the transcript of the hearing. In the first section, Zhang testified that he was not a Falun Gong practitioner in China or in the United States. In the second section, Zhang’s witness, Fu Jun, testified that Zhang practiced because “it’s only a concept” and that…

dissenting:

I dissent. This is not a case where a the IJ improperly relied upon an inconsistency forming the basis of a denial of asylum without giving the alien a “reasonable opportunity to offer an explanation.” See Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004). In this case, Zhang testified before the IJ that he did not practice Falun Gong, either in China or in the United States. Zhang then called a witness, who, upon questioning by the IJ, testified unambiguously that Zhang had told him he practiced Falun Gong in Los Angeles. Zhang’s attorney neither examined the witness on redirect nor recalled Zhang to the witness stand. This obvious inconsistency took place before the IJ and in the presence of Zhang and his attorney. Zhang had the perfect time, place, and opportunity to explain.

*603 The IJ stated she “must conclude that [Zhang’s] testimony is not credible,” noting:

The BIA affirmed the IJ’ adverse credibility determination, stating:

(Internal citation omitted).

The majority, without authority, places a new burden on the government to recall Zhang to the stand and afford him an “opportunity to explain” the direct contradiction between his testimony and that of…