                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 01 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LI SONG et al.,                                  No. 08-72474

              Petitioner,                        Agency Nos. A096-052-348
                                                 A078-113-180
  v.

ERIC H. HOLDER, Jr., Attorney General,           MEMORANDUM *

              Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted February 14, 2013
                              Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and RAKOFF, Senior District
Judge.**

       Li Song and her husband Zhiwei Han, both natives of China, petition for

review of an order of the Board of Immigration Appeals (BIA) dismissing Li

Song’s appeal from an immigration judge’s (IJ) denial of her application for




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
asylum and withholding of removal. Li Song claims Zhiwei Han as a derivative

beneficiary of her application. The IJ denied Song’s claims after concluding,

among other things, that she was not credible. We have jurisdiction pursuant to 8

U.S.C. § 1252.

      Where, as here, the BIA reviewed the IJ’s decision for clear error, we “look

to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion. In so

doing, we review . . . the reasons explicitly identified by the BIA, and then

examine the reasoning articulated in the IJ’s oral decision in support of those

reasons.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008).

      We review adverse credibility determinations under the substantial evidence

standard, Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009), and for

applications for asylum filed on or after May 11, 2005, we apply the REAL ID

Act’s standards governing adverse credibility determinations. In REAL ID Act

cases, immigration judges may consider “all relevant factors” and may consider

inaccuracies or falsehoods regardless of whether they “go[] to the heart of the

applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii) (specifying the standard for

credibility determinations for asylum claims) and 8 U.S.C. § 1231(b)(3)(C)

(adopting the same for withholding of removal). Nevertheless, immigration judges

must still “provide specific and cogent reasons in support of an adverse credibility


                                          2
determination” and consider the “totality of the circumstances.” Shrestha v.

Holder, 590 F.3d 1034, 1044-1045 (9th Cir. 2010).

      We find that the IJ provided specific, cogent reasons in support of his

adverse credibility determination and that his conclusion that Song’s testimony

lacked credibility was supported by substantial evidence. Song’s application for

asylum, which was her second, claimed that she was subjected to a coerced

abortion in her native country. Yet, as the IJ described in his oral decision, among

other problems with her testimony, Song failed to consistently recall when she was

pregnant and underwent the abortion; gave inconsistent answers about whether she

consulted a doctor prior to her alleged abortion; gave inconsistent answers about

who assisted her in completing her asylum application; and contradicted a

statement made in connection with her first asylum application regarding where

she was allegedly arrested for her Christian beliefs. Under the broad permissible

standards of the REAL ID Act, and given the totality of the circumstances in this

case, it was not improper for the BIA and IJ to rely on these inconsistencies to find

Song not credible.

      In the absence of credible testimony, Song’s asylum and withholding of

removal claims fail. Id. at 1048.

      The petition for review is DENIED.



                                          3
                                                                          FILED
Song v. Holder, No. 08-72474                                               MAR 01 2013

                                                                       MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting:                                      U .S. C O U R T OF APPE ALS




      I respectfully dissent. Song initially applied for asylum and withholding of

removal in August 2002. I would treat Song’s July 2005 application as a

supplement to her initial application. Compare In re Compean, 24 I. & N. Dec.

710, 715–16 (Att’y Gen. 2009) (describing the procedural history in In re J-E-C-),

vacated on other grounds, 25 I. & N. Dec. 1 (Att’y Gen. 2009).

      The Real ID Act’s framework for assessing credibility does not apply to an

application, such as Song’s, submitted in 2002. See, e.g., Yan Liu v. Holder, 640

F.3d 918, 925 (9th Cir. 2011). Applying pre-Real ID Act standards, I would hold

that there was no inconsistency in Song’s testimony that went to the “heart of” her

asylum and withholding claims and that would support the agency’s adverse

credibility determination. See Singh v. Ashcroft, 301 F.3d 1109, 1111–12 (9th Cir.

2002). I would therefore grant Song’s petition.
