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Enying Li v. Holder

United States Court of Appeals, Ninth Circuit

December 31, 2013

ENYING LI, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

Submitted Aug. 29, 2013.[*]

Page 1161

Evan Lee Murri, Law Offices of Evan L. Murri, PLC, San Gabriel, CA; Dixon Wong, Law Offices of Dixon Wong, Pasadena, CA, for Petitioner.

Yedidya Cohen, United States Department of Justice, Washington, D.C.; Douglas E. Ginsburg and David V. Bernal, Assistant Directors, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A098-462-999.

Before: DIARMUID F. O'SCANNLAIN, CARLOS T. BEA, and MORGAN CHRISTEN, Circuit Judges.

OPINION

BEA, Circuit Judge:

Enying Li was denied asylum, withholding of removal pursuant to § 241(b)(3) of the Immigration and Nationality Act, and withholding of removal pursuant to the Convention Against Torture (" CAT" ) on two separate claims of past persecution because the Immigration Judge (" IJ" ) found her testimony regarding one of her

Page 1162

claims not credible. We must now decide whether an IJ may use the maxim falsus in uno, falsus in omnibus ( i.e. false in one thing, false in everything) to find that material inconsistencies in testimony regarding one claim support an adverse credibility determination on another claim in a pre-REAL ID Act case. We hold the maxim falsus in uno, falsus in omnibus may be used by an immigration judge, and we deny Li's petition.

I. Background

Li, a citizen of China of Korean and Chinese descent, entered the United States without being admitted or paroled. She filed an application for asylum, withholding of removal under the Immigration and Nationality Act, and withholding of removal under CAT, claiming she had suffered religious persecution and had been subject to China's restrictive population control measures. Subsequently, the former Immigration and Naturalization Service commenced removal proceedings against Li by filing a Notice to Appear and charging her with removability for being present in the United States without having been admitted or paroled.

A. Forced Abortion Claim

At the merits hearing, Li testified that she found out she was pregnant with her second child one month after her husband's death. When asked about China's one-child policy, Li testified that Korean-Chinese persons like herself were permitted to have two children. But she testified that her employer would not allow her to have the child because she did not have a husband. Li testified that she then went to stay at her aunt's house. While there, someone noticed she was visibly pregnant and reported her to a women's social organization. After this report, Li testified she was forced to have an abortion.

B. Religious Persecution Claim

After Li's husband passed away, a friend recommended that she go to church. Li testified that she attended a Christian church for the first time on April 6, 2003, and at least twice a week after that date. She stated that it was a home church service and that the church attendees kept changing the location because the government was searching for home church services. On November 7, 2004, a service was held at Li's house. Li testified that one of the deacons was giving a sermon when there was a knock on the door. Li went to the door and between four and six police officers raided her home.

The police arrested Li and the other home church attendants and took them to the police station. She testified that she was detained for about ten days, during which time she was interrogated and hit with an " electric stick." She was released after she paid a fine of 5,000 yuan, but she was still required to report to the police station once a week. Although Li testified that she had attended the home church from April 6, 2003, until November 7, 2004, a period of nineteen months, she later stated on cross-examination that she had not been baptized because people had to practice in the home church for six to twelve months before they could be baptized.

C. Passport Inconsistency

Li testified that she used a Chinese passport to leave China. When asked when she had obtained the Chinese passport, Li stated, " On March the 18th [of 2005]. I think— I think that's December 18th. It's been a long time." She was then asked by her counsel how she could have received a passport in December 2005 when she left China in February 2005. Li stated that she applied for the passport " way before." Li stated that

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while she was pregnant at her aunt's house, her sister had told her that, if Li had a passport, she could leave China. Later in the hearing, she was asked, " [Y]ou obtained your passport in December 2003. Is that correct?" Li replied, " Yes, I received my passport at that time." On cross-examination, she also testified that she applied for her passport because her husband had passed away and she had trouble with the police as a result of attending home church. The IJ asked, " But ma‘ am, you didn't ...


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