                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 05 2010

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




                            FOR THE NINTH CIRCUIT



PING YANG,                                       No. 06-72881

              Petitioner,                        Agency No. A095-877-324

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

              Respondent.



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

                      Argued and Submitted October 5, 2010
                            San Francisco, California

Before: REINHARDT, BERZON and CALLAHAN, Circuit Judges.

       Ping Yang petitions for review of a decision of the Board of Immigration

Appeals (BIA) affirming an Immigration Judge’s (IJ) denial of Yang’s application

for asylum, withholding of removal, and relief under the United Nations

Convention Against Torture (CAT). Yang also challenges the BIA’s affirmance of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the IJ’s finding that Yang knowingly filed a frivolous application for asylum. We

deny the petition in part and grant it in part.

      1. Substantial evidence supports the adverse credibility determination made

against Yang. The IJ and BIA provided “specific and cogent reasons” for the

finding. See Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005).

      Yang’s testimony on cross-examination consisted of a series of falsehoods,

some admitted as such when confronted with proof to the contrary, and some not

admitted to be false but explained entirely implausibly. Yang also admitted to

making fabrications on her asylum application, to the opposite effect from the

falsehoods she told at the hearing.

      Nor was the credibility determination based on impermissible grounds.

Rather, the reasons provided by the IJ and BIA went “to the heart” of Yang’s claim

for asylum. Id. at 1067. Yang’s contradictory fabrications, and the fact that she

admitted to false statements only after being confronted with evidence to the

contrary, undermined her entire testimony. The falsehoods were fairly understood

as intended to enhance her asylum application by distancing her from involvement

in Chen’s attempt to adjust his status based on a fraudulent marriage to a U.S.

citizen, whether by negating a basis for discretionary denial of asylum or

otherwise. Even if her false statements were not made with such an intention, her


                                           -2-
repeated fabrications were pervasive and far from trivial, and the implausible

explanations she provided when caught in those lies constituted “other indications

of dishonesty” sufficient to support an adverse credibility determination. Id. at

1066.

        In the absence of credible testimony, Yang’s claims for asylum and

withholding fail, as Yang’s claims are based almost entirely on her testimony.

Yang’s CAT claim is also based on that testimony and so must fail as well. See

Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006).

        We therefore deny Yang’s petition to the extent that she challenges the

BIA’s determination that she is not eligible for asylum, withholding of removal, or

protection under CAT. Because we hold that the BIA’s determination that Yang

was not eligible for asylum is supported by substantial evidence, we need not

address whether the agency abused its discretion by affirming the IJ’s discretionary

denial of asylum.

        2. We grant Yang’s petition to the extent that she challenges the agency’s

determination that she “knowingly made a frivolous application for asylum.” 8

U.S.C. § 1158(d)(6). Such a determination requires the BIA or the IJ to make

specific findings that a non-citizen “deliberately fabricated” a “material element[]”




                                          -3-
of an asylum application. 8 C.F.R. § 208.20; see Khadka v. Holder, 618 F.3d 996,

1001-02 (9th Cir. 2010).

      The frivolousness finding was based solely “upon the statement about

respondent’s marital status in her original application.” Her marital status was not

a “material element” of her claim for asylum. See Khadka, 618 F.3d at 1004.

While her statement in her application could contribute to an adverse credibility

holding because such a determination “merely requires an omission, inconsistency,

or discrepancy relating to a material element (the heart of the asylum claim),” a

frivolousness determination requires the IJ to “be convinced that the applicant

deliberately fabricated a material element.” Id. at 1002 (emphasis added). The

agency did not identify why the falsehood concerning her marital status in her

application indicated that a material element of her claim was “actually false.” Id.

at 1004.

      We therefore grant Yang’s petition as to the frivolousness determination and

so reverse the BIA’s imposition of the permanent bar to eligibility for any benefits

under the INA.

      PETITION DENIED in part and GRANTED in part.




                                         -4-
