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Xin Liu v. Garland

United States Court of Appeals, Ninth Circuit
Oct 24, 2022
No. 17-71383 (9th Cir. Oct. 24, 2022)

Opinion

17-71383

10-24-2022

XIN LIU, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 20, 2022 San Francisco, California

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A097-365-682

Before: GILMAN, CALLAHAN, and VANDYKE, Circuit Judges.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

MEMORANDUM

Petitioner Xin Liu petitions for review of a decision of the Board of Immigration Appeals (BIA) denying her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, see Nath v. Gonzales, 467 F.3d 1185, 1188 (9th Cir. 2006) (citing Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004)), and we deny the petition.

Petitioner, a native and citizen of China, sought asylum, withholding of removal, and Convention Against Torture relief in March 2004. She claimed that Chinese authorities wrongfully blamed her for a building collapse at a state-owned Chinese factory and had detained, interrogated, and tortured her.

At a June 2004 hearing, an immigration judge denied Petitioner's asylum application in its entirety. Petitioner appealed to the BIA, and because a portion of the recording of the hearing was indiscernible, the BIA remanded. In July 2012, another immigration judge denied Petitioner's application, finding, in relevant part, that Petitioner was not credible and giving her testimony no evidentiary weight. Petitioner once again appealed to the BIA. In July 2013, following her marriage to a United States citizen, Petitioner sought and was granted a remand to apply for adjustment of status.

In July 2014, Petitioner withdrew her asylum application and testified in support of her application for adjustment. But after the immigration judge found Petitioner to be untruthful and indicated that he may find her inadmissible for fraud, Petitioner filed a fraud waiver in which she admitted that her prior asylum-related claims were a lie. The following month, Petitioner testified, confirming that she had lied to immigration authorities for more than a decade and admitting that the declaration attached to her asylum application was not true.

In March 2015, the immigration judge denied Petitioner's application for adjustment of status. Petitioner appealed, and in September 2016, the BIA dismissed the appeal.

In December 2016, Petitioner filed a motion to reopen her removal proceedings with respect to her application for adjustment of status, arguing that her "acquiescence to the fraudulent asylum scheme was caused by ... post traumatic stress disorder [(PTSD)] which she suffered as a result of the physical abuse she suffered from her then-husband in China." In support, Petitioner submitted numerous documents, including several letters from psychologist Cheri L. Premeau, who began treating Petitioner in July 2015. In one letter, Dr. Premeau opined that Petitioner suffered from PTSD caused by "emotional and physical abuse by her Chinese husband." According to Dr. Premeau, Petitioner's PTSD "predate[d] her arrival in the United States" and made her susceptible to the influence of her male immigration attorney, whom Petitioner claimed had convinced her to lie to immigration authorities.

In April 2017, the BIA denied Petitioner's motion to reopen. The BIA found that "[t]o the extent [Petitioner] was abused by her former spouse and suffered psychological problems, these facts long predated [her] previous hearing in August 2014, as well as a number of other hearings in [her] case." The BIA also found that some of Petitioner's documents "predated [her] 2014 hearing" and that "[m]any of the documents submitted that post-dated [her] hearing are similar to, and cumulative of, the documents submitted at the time of [her] hearing." The BIA addressed Dr. Premeau's letters, noting that they "appear to have been prepared for purposes of litigation, are not accompanied by the psychologist's curriculum vitae to show her qualifications, and do not show what methodologies were used for the diagnosis." The BIA also noted a material inconsistency regarding the gender of Petitioner's counsel between the information in Dr. Premeau's letters and Petitioner's statement. Ultimately, the BIA concluded that "any new evidence submitted with the motion would not show that a different outcome may be likely if the respondent's proceedings were reopened to redetermine her eligibility for waiver of inadmissibility."

Petitioner timely petitioned for review. "We review denials of motions to reopen for abuse of discretion and defer to the BIA's exercise of discretion unless it acted arbitrarily, irrationally, or contrary to law." Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citations omitted).

"A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material." 8 C.F.R. § 1003.2(c)(1).

The BIA can deny a motion to reopen on any one of "at least" three
independent grounds-"failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought."
Najmabadi, 597 F.3d at 986 (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)); see also 8 C.F.R. § 1003.2(c)(1).

Petitioner admits that "it was known that [she] suffered from PTSD" during her removal proceedings. Moreover, there is no dispute that Petitioner also knew of her former husband's abuse during the proceedings. Petitioner's only arguably "new evidence" is Dr. Premeau's opinion that the abuse caused Petitioner's PTSD. But this "evidence" was available to Petitioner during her removal proceedings. Indeed, Dr. Premeau made the connection a little more than a year after she began treating Petitioner. Had Petitioner begun sessions with Dr. Premeau-or any other psychologist-upon entering the United States, she would have had this "evidence" sometime in 2005, more than ten years before termination of her removal proceedings. Petitioner chose instead to begin seeing Dr. Premeau only after her removal proceedings were terminated and more than a decade after she entered the United States.

Moreover, while "credibility determinations on motions to reopen are inappropriate," Bhasin v. Gonzales, 423 F.3d 977, 986-87 (9th Cir. 2005), the BIA did not make a credibility determination with respect to Dr. Premeau's letters. Rather, the BIA properly assessed the weight to be afforded to the letters. And the BIA did not abuse its discretion in concluding that Dr. Premeau's letters were entitled to little evidentiary weight considering the lack of a curriculum vitae, the absence of any description about the methodologies used to diagnose Petitioner, and a material inconsistency with Petitioner's statement. But more importantly, the BIA had already determined that Dr. Premeau's opinion as well as the underlying facts were not "new."

Accordingly, the BIA did not abuse its discretion in denying Petitioner's motion to reopen.

PETITION DENIED.

The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.


Summaries of

Xin Liu v. Garland

United States Court of Appeals, Ninth Circuit
Oct 24, 2022
No. 17-71383 (9th Cir. Oct. 24, 2022)
Case details for

Xin Liu v. Garland

Case Details

Full title:XIN LIU, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 24, 2022

Citations

No. 17-71383 (9th Cir. Oct. 24, 2022)