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Yung Ying Shi v. Holder
Citation: 337 F. App'x 666Docket: No. 05-72223
Court: Court of Appeals for the Ninth Circuit; June 26, 2009; Federal Appellate Court
Yung Ying Shi, a Chinese citizen, petitions for review of a Board of Immigration Appeals (BIA) order that affirmed an Immigration Judge's (IJ) denial of her asylum, withholding of removal, and Convention Against Torture (CAT) protection applications. The court's jurisdiction is based on 8 U.S.C. § 1252. The IJ's denial was primarily based on an adverse credibility finding, which was deemed unsupported by substantial evidence. The court identified that the IJ's inconsistencies were based on conjecture, did not pertain directly to Shi's asylum claim, and lacked record support. Additionally, the reasons for the IJ's demeanor-based credibility assessment were insufficient or unrelated to Shi’s actual demeanor. Consequently, the court accepted her testimony as credible, particularly regarding her forced abortion, which qualifies her for asylum under 8 U.S.C. § 1101(a)(42). The court also noted that Shi was denied a full and fair hearing due to the IJ's bias, as she posed loaded questions and failed to act as a neutral fact finder. The court therefore granted the petition for review and remanded the case for the Attorney General to exercise discretion on asylum and to issue an order for withholding removal. The court did not address Shi's claims under CAT or the sufficiency of corroborating evidence, as it lacked jurisdiction over the due process claim due to Shi's failure to raise it before the BIA. Shi is awarded costs as the prevailing party. A dissenting opinion from Judge Leavy recommended denying the petition for review. The government’s petition for panel rehearing was granted, resulting in the withdrawal of the previous memorandum disposition, with a new disposition issued concurrently. Shi's motion to file an answer to the rehearing petition was denied as moot, and no further petitions for rehearing will be accepted in this closed case. The disposition is not for publication and may only be cited in specific circumstances as per Ninth Circuit Rule 36-3. The court referenced prior instances of similar judicial behavior by the IJ in question.