586 F. App'x 341

Catherine PHIRI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10-73513.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 18, 2014.*

Filed Dec. 3, 2014.

Gloria A. Goldman, Gloria A. Goldman, PC, Tucson, AZ, for Petitioner.

*342Before: FERNANDEZ and IKUTA, Circuit Judges, and DANIEL,** District Judge.

MEMORANDUM ***

Catherine Phiri (“Phiri”) petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her application for asylum.1 See 8 U.S.C. § 1158. We deny the petition.

(1) Phiri first asserts that the BIA erred because it upheld a decision of a new Immigration Judge (“IJ”) that was issued after a remand2 by the BIA when it determined that there was no transcript (or recording) of the first hearing and decision. We disagree. As the BIA stated, Phiri and the government effectively stipulated that the IJ should conduct a new hearing and issue a new decision. Certainly, Phiri did not object to that approach when she was before the IJ and, in fact, expressly embraced it. The issue was waived. See Gonzalez-Rivera v. INS, 22 F.3d 1441, 1444 (9th Cir.1994). In any event, the BIA’s remand order did not restrict the scope of the IJ’s authority to rehear and redecide the case upon remand; it expansively indicated that the IJ could take all “necessary and appropriate” steps. Due to that lack of express limitations, the IJ was not foreclosed from proceeding as he did. See Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir.2010). Thus, the BIA did not err.3

(2) Phiri then argues that the BIA erred when it agreed with the IJ that she was not credible.

The BIA’s determination that an alien is not eligible for asylum must be upheld if “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). “It can be reversed only if the evidence presented ... was such that a reasonable factfinder would have to conclude that the requisite” persecution existed. Id.; see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). When an alien seeks to overturn the BIA’s adverse determination, “he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite” persecution. Elias-Zacarias, 502 U.S. at 483-84, 112 *343S.Ct. at 817. The same standard applies to credibility determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003). However, when a determination is based upon credibility, “ ‘a specific, cogent reason’ ” for disbelieving the alien must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir.2004).

We have reviewed the record and are satisfied that the BIA’s decision was supported by substantial evidence.4 The BIA determined that Phiri lacked credibility because of inconsistencies that went to the heart of her asylum claim. See Rizk, 629 F.3d at 1087-88, 1091; Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005); Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). For example, the discrepancies included: the nature of her father’s political views or activities in Zimbabwe; whether she had political views or was involved in political activity; when her father was abducted; when her husband was abducted; when she was actually in Zimbabwe and when in Zambia; whether she was in fact a citizen of Zimbabwe or of Zambia or of both;5 and even her date of birth. In short, we are unable to say that a “reasonable fact-finder would have to conclude” that she suffered past persecution. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. at 815.

Petition DENIED.

Phiri v. Holder
586 F. App'x 341

Case Details

Name
Phiri v. Holder
Decision Date
Dec 3, 2014
Citations

586 F. App'x 341

Jurisdiction
United States

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