Meiying Zhao v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEIYING ZHAO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 13-72950
Agency No. A089-303-616
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 19, 2017**
San Francisco, California
Before: TALLMAN and IKUTA, Circuit Judges, and OLIVER,*** Chief District
Judge.
Zhao Meiying petitions for review of the Board of Immigration Appeals’s
FILED
JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Solomon Oliver, Jr., Chief United States District
Judge for the Northern District of Ohio, sitting by designation.

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(BIA) order dismissing her appeal from the Immigration Judge’s (IJ) denial of her
application for asylum, withholding of removal, and relief under the Convention
Against Torture. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition for review.
Because “[u]nder the REAL ID Act, the IJ may base an adverse credibility
determination on any relevant factor that, considered in light of the totality of the
circumstances, can reasonably be said to have a ‘bearing on a petitioner’s
veracity,’” Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (quoting Shrestha
v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010)), the IJ could base an adverse
credibility determination on the discrepancies in the December 2006 medical
record. Although “a typographical error, will not by itself form a sufficient basis
for an adverse credibility determination,” Shrestha, 590 F.3d at 1043, Zhao
presented no evidence to the BIA establishing that the multiple discrepancies in the
December 2006 medical record were in fact attributable to typographical errors.
Contrary to Zhao’s argument, the IJ determined that the hospital’s correction letter
was not persuasive because the hospital lacked a reliable basis for making the
correction, not because the letter had not been authenticated. While the record
indicates that Zhao’s husband provided the hospital with the allegedly erroneous
medical record, it does not indicate that he also provided the hospital with accurate
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records. Absent evidence that the hospital could compare the erroneous document
with accurate records, we cannot discount the IJ’s determination that the correction
letter was not persuasive as mere speculation and conjecture. Cf. Singh v. Lynch,
802 F.3d 972, 975–76 (9th Cir. 2015). The agency’s “findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary,” 8 U.S.C. § 1252(b)(4)(B), and on this record, we cannot conclude
that the evidence offered by Zhao compels the conclusion that she is credible. See
Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005) (explaining that under
the REAL ID Act, “only the most extraordinary circumstances will justify
overturning an adverse credibility determination”).
Zhao was given an opportunity to explain the discrepancies in the December
2006 medical record; the IJ was not required to afford Zhao a second such
opportunity. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011).
Absent Zhao’s discredited testimony, the remaining evidence in the record is
insufficient to carry Zhao’s burden of establishing that she is eligible for relief.
See 8 U.S.C. §§ 1158(b)(1)(B), 1231(b)(3)(C); Ling Huang v. Holder, 744 F.3d
1149, 1156 (9th Cir. 2014).
PETITION DENIED.
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Zhao v. Sessions, No. 13-72950
OLIVER, Chief District Judge, dissenting:
I respectfully dissent because I do not believe that the discrepancies in the
December 2006 medical record are significant enough to render Zhao’s testimony
not credible. While the Real ID Act expanded the bases on which an adverse
credibility determination may be premised, permitting consideration of any
inconsistency, it nonetheless required any decision be made “in light of the ‘totality
of the circumstances, and all relevant factors.’” Shrestha v. Holder, 590 F.3d
1034, 1043 (9th Cir. 2010) (citing 8 U.S.C. §1158(b)(1)(B)(iii)). Reaching its
adverse credibility determination here, the BIA seized on errors, which, when
reviewed in context, were relatively minor and had little bearing on Zhao’s
veracity. See id. at 1043 (“[A]n utterly trivial inconsistency, such as a
typographical error, will not by itself form a sufficient basis for an adverse
credibility determination.”). In so doing, the BIA failed to take note of the
consistency between the offending document and two other medical records from
the same December 21, 2006 hospital visit, created under the direction of the same
doctor and bearing Zhao’s correct surname. All three documents bear Zhao’s
correct first name and age. The BIA, however, “cherry pick[ed] solely facts
favoring an adverse credibility determination while ignoring facts that
undermine[d] that result.” Id. at 1040.
FILED
JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Moreover, Zhao provided a reasonable and plausible explanation for the
discrepancies on which the BIA relied, which was corroborated by the hospital’s
correction letter. The BIA’s rejection of the letter from the hospital, which
identified the errors as having been caused by hospital staff, rests on
impermissible speculation and conjecture about the hospital’s lack of a reliable
basis to correct these typographical errors. See, e.g., Shah v. INS, 220 F.3d 1062,
1071 (9th Cir. 2000) (“Speculation and conjecture cannot form the basis of an
adverse credibility finding, which must instead be based on substantial evidence.”).
While the REAL ID Act substantially broadened the grounds on which an adverse
credibility determination may be based, it did not eliminate the requirement that
such decisions be grounded in substantial evidence in the record. See Shrestha,
590 F.3d at 1039–45. Because I do not believe that the findings relied upon by the
BIA are supported by substantial evidence, I would reverse the BIA’s findings and
remand for further proceedings.
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