                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 15 2013

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




                            FOR THE NINTH CIRCUIT



SHU JIE HU,                                      No. 08-72925

              Petitioner,                        Agency No. A076-093-532

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

              Respondent.



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

                            Submitted February 6, 2013 **
                               Pasadena, California

Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.

       Shu Jie Hu, a native and citizen of China, petitions for review of the decision

of the Board of Immigration Appeals (BIA), which affirmed the finding of an

Immigration Judge (IJ) that Hu filed a frivolous asylum application -- a finding that




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
forever bars her from receiving any benefits under the Immigration and Nationality

Act, 8 U.S.C. § 1101 et seq. (“INA”). Because the parties are familiar with the

facts, we repeat them only as necessary to illuminate our decision. We have

jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.

      Hu argues that she was denied due process because (1) the IJ who presided

over her case was biased against her as a result of a previous IJ’s allegedly

prejudicial comments, and (2) the admission into evidence of a suspicious stack of

documents, which Hu left behind in the courtroom after her asylum hearing, was

fundamentally unfair. She argues also that the record does not support the

frivolousness finding and that the IJ did not make sufficient findings regarding

which elements of her asylum claim were fabricated.

      1.     IJ Bagley’s comments, taken as a whole and in context, confirm that

he did not demonstrate improper bias against Hu. He correctly noted that any

judge assigned to Hu’s case would be required to review the record and would thus

be exposed to the statements made by IJ Walsh as he recused himself. IJ Bagley

recognized that there might be an innocent explanation for Hu’s possession and use

of the documents and believed he could be impartial. Hu was not “prevented from

reasonably presenting [her] case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.

2000) (quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986)).


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Indeed, IJ Bagley allowed Hu to testify extensively regarding the documents. That

IJ Bagley did not credit Hu’s testimony does not violate due process.

      2.     The admission of Exhibits 5A and 5B did not violate Hu’s due process

rights because the evidence was “probative and its admission [was] fundamentally

fair.” Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995). The certificate of

translation by Interpreter Yang sufficiently identified the translated documents as

the entire stack of papers, even though the boilerplate language referred to only one

“document.” Further, although Hu claims that the documents found by IJ Walsh

suffer from a chain of custody problem, she has failed to identify a single missing,

altered, or mistranslated document. She has therefore failed to meet her burden of

showing that any irregularities in the exhibits might have affected the outcome of

the proceedings. See Colmenar, 210 F.3d at 971.

      3.     IJ Bagley made sufficiently specific findings that Hu deliberately

fabricated material elements of her asylum claim. See Khadka v. Holder, 618 F.3d

996, 1002 (9th Cir. 2010); 8 C.F.R. § 208.20. After reviewing the exhibits and

taking testimony, he determined that Hu’s asylum claim was “fabricated

throughout” and that her “entire testimony was based upon her review” of the

documents, which IJ Bagley described as “a primer or a set of instructions about

how one is to apply for asylum in the United States and how one should respond to


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questions asked in an asylum setting both about religion and about the basis of the

asylum claim.” In essence, the documents were the syllabus for Christianity 101.

      IJ Bagley discussed the specific portions of the documents that caused him

to doubt Hu’s claim, gave Hu multiple opportunities to explain them, and

discussed why Hu’s explanations were unsatisfactory. This is sufficient under our

precedent to constitute an explicit finding that Hu knowingly filed a frivolous

application. See Ahir v. Mukasey, 527 F.3d 912, 918 (9th Cir. 2008) (holding that

an IJ’s finding that an asylum claim “had been fabricated ‘whole cloth’” was

sufficiently specific to support a frivolousness finding).

      4.     A strong preponderance of evidence supports the frivolousness

finding. See id. at 918-19. Hu’s testimony was full of contradictions and outright

reversals regarding, inter alia, who gave her the documents, why she had them,

whether she referred to them during her merits hearing, and whether she had

reviewed them at all. As the IJ noted, Hu’s testimony was “waffling and

inconsistent,” and her responses were “discrepant . . . and unbelievable.”

      Although the consequences for filing a frivolous asylum application are

severe, Hu has no one else to blame for her troubles. She drowned herself in her

own changing tide of lies.

      PETITION DENIED.


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