                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


SHOUCHEN YANG,                                   No. 12-71773
                              Petitioner,
                                                  Agency No.
                    v.                           A099-045-733

LORETTA E. LYNCH, Attorney
General,                                           OPINION
                     Respondent.


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

               Argued and Submitted
November 4, 2015—University of California, Los Angeles

                    Filed February 26, 2016

  Before: Mary M. Schroeder and Michelle T. Friedland,
   Circuit Judges and Vince Chhabria,* District Judge.

                  Opinion by Judge Chhabria
                  Dissent by Judge Schroeder




 *
   The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
2                         YANG V. LYNCH

                           SUMMARY**


                            Immigration

    The panel granted a petition for review of the denial of a
motion to reopen removal proceedings, concluding that the
Board of Immigration Appeals erred when it applied the
maxim falsus in uno, falsus in omnibus—“false in one thing,
false in everything”— to reject as not credible petitioner’s
new claim for asylum relief, based on a prior adverse
credibility determination in underlying removal proceedings.

    The panel explained that unlike an immigration judge, the
Board may not make findings of fact, and must instead credit
evidence supporting a motion to reopen unless that evidence
is inherently unbelievable. The panel stated that the falsus
maxim cannot render an affidavit inherently unbelievable
because the maxim is discretionary, not mandatory, and the
Board as an appellate body is limited to reviewing the IJ’s
factual findings for clear error, rather than making factual
determinations in the first instance.

    Dissenting, Judge Schroeder agreed that the Board is
prohibited from making credibility determinations in
considering a motion to reopen, but she does not view the
Board’s denial in this case to be premised on credibility, but
rather petitioner’s failure to meet the heavy burden of
showing that the result in this case would change if the case
was reopened.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       YANG V. LYNCH                          3

                         COUNSEL

Certified Law Students Ronald Park (argued) and Emily
Cross (argued), supervised by Kathryn M. Davis and Peter R.
Afrasiabi; University of California, Irvine School of Law;
Irvine, California, for Petitioner.

Jonathan Robbins (argued), Jennifer R. Khouri, and Jennifer
P. Levings, Office of Immigration Litigation; Benjamin C.
Mizer, Civil Division; U.S. Department of Justice;
Washington, D.C., for Respondent.


                          OPINION

CHHABRIA, District Judge:

    This court has held that an immigration judge may use the
maxim falsus in uno, falsus in omnibus—“false in one thing,
false in everything”—to find that a witness who testified
falsely in one respect at a removal hearing is also not credible
in other respects. Enying Li v. Holder, 738 F.3d 1160,
1161–62 (9th Cir. 2013). The question in this appeal is
whether the Board of Immigration Appeals (“BIA”) may do
the same thing when considering a motion to reopen removal
proceedings. We conclude it may not. In contrast to an
immigration judge, the BIA is not a finder of fact, so it cannot
make the kind of credibility determination inherent in a
decision to apply the falsus maxim. Because the BIA applied
the falsus maxim in denying Shouchen Yang’s motion to
reopen, we grant his petition for review.
4                     YANG V. LYNCH

                              I.

    Shouchen Yang is a native and citizen of the People’s
Republic of China. He entered the United States on a
nonimmigrant visa in January 2005 and overstayed. He
subsequently applied for asylum, withholding of removal, and
protection under the Convention against Torture. The asylum
officer who initially processed Yang’s application referred
him to an immigration judge, and Yang entered removal
proceedings.

    In removal proceedings, Yang testified that he had
mobilized his co-workers to complain about corruption in the
government-affiliated hotel where they worked, prompting
local officials to have Yang arrested and beaten. But the
immigration judge found that Yang’s testimony was not
credible, and denied Yang’s applications for relief. The BIA
dismissed Yang’s appeal from this decision, holding that the
immigration judge’s credibility determination was not clearly
erroneous.

    Yang then filed a timely motion to reopen, asserting a
new factual basis for relief. According to Yang, after he was
ordered removed, he joined a Christian church whose
members were persecuted in China. In support of his motion,
Yang submitted an affidavit that detailed his purported
religious conversion. The affidavit further alleged that, after
Yang tried to mail religious literature to his wife in China,
Chinese authorities threatened to send her to a forced labor
camp. Yang also submitted a document that he identified as
a letter from his wife, which described purported threats by
Chinese authorities, as well as other documentary evidence.
                       YANG V. LYNCH                          5

    The BIA denied Yang’s motion to reopen. In doing so,
the BIA found that, because the immigration judge in removal
proceedings had found that Yang’s testimony in those
proceedings was not credible, the new affidavit that Yang
submitted with his motion to reopen was also not credible.
Specifically, the BIA held that Yang “has not shown why the
Board should now accept the statements offered in support of
the motion as reliable where his prior testimony has been
found to lack credibility, and where [Yang] has not offered an
explanation to overcome the Immigration Judge’s adverse
credibility determination.”

   Yang timely petitioned for review.

                              II.

    “We review the denial of a motion to reopen for abuse of
discretion.” Yan Rong Zhao v. Holder, 728 F.3d 1144, 1147
(9th Cir. 2013). The BIA abuses its discretion when, among
other things, it acts “contrary to law.” Id.

                              III.

    Under this court’s precedent, an immigration judge may
apply the falsus maxim to find that a witness who testified
falsely about one thing is also not credible about other things.
Enying Li v. Holder, 738 F.3d 1160, 1161–62 (9th Cir. 2013).
The Second Circuit has gone further, holding that the BIA
may also apply the falsus maxim, relying on an immigration
judge’s prior adverse credibility determination to make its
own finding that evidence supporting a motion to reopen is
not credible. Qin Wen Zheng v. Gonzales, 500 F.3d 143,
146–47 (2d Cir. 2007). The Government would have us
adopt the Second Circuit’s reasoning and extend our prior
6                     YANG V. LYNCH

decision in Enying Li to hold that the BIA (like the
immigration judge in Enying Li) may use the falsus maxim to
discredit evidence that has not otherwise been found non-
credible—here, Yang’s affidavit in support of his motion to
reopen.

    But unlike an immigration judge, the BIA may not make
findings of fact. 8 C.F.R. § 1003.1(d)(3)(iv); Rodriguez v.
Holder, 683 F.3d 1164, 1173 (9th Cir. 2012). Consistent with
the BIA’s inability to make factual findings—including
findings about witnesses’ credibility—“[w]e have long held
that credibility determinations on motions to reopen are
inappropriate.” Bhasin v. Gonzales, 423 F.3d 977, 986 (9th
Cir. 2005); see also Ghadessi v. INS, 797 F.2d 804, 806–07
(9th Cir. 1986). The BIA must instead credit evidence
supporting a motion to reopen unless that evidence is
“inherently unbelievable.” Tadevosyan v. Holder, 743 F.3d
1250, 1256 (9th Cir. 2014); see also Yan Rong Zhao v.
Holder, 728 F.3d 1144, 1151 (9th Cir. 2013).

    The falsus maxim cannot render Yang’s affidavit
“inherently unbelievable,” because the falsus maxim is
discretionary rather than mandatory. The maxim “allows a
fact-finder to disbelieve a witness’s entire testimony,” Enying
Li, 738 F.3d at 1163 (emphasis added), but it does not require
a fact-finder to disbelieve the witness’s entire testimony.
Sometimes a witness lies about one thing but tells the truth
about another thing. Other times a witness lies about
everything. And only the fact-finder is in a position to decide
which is which. Here, based on our decision in Enying Li, an
immigration judge could apply the falsus maxim based on
Yang’s prior testimony and find that Yang’s new story is not
credible. For that matter, the immigration judge could find
that Yang’s new story is not credible for some other reason.
                      YANG V. LYNCH                          7

But neither would an immigration judge be prohibited from
finding that Yang is being truthful now, notwithstanding the
conclusion that Yang’s testimony in the prior hearing was not
credible.

    The idea that the BIA could apply the falsus maxim to
deny a motion to reopen is in tension with the BIA’s limited
and deferential role in reviewing immigration judges’
credibility determinations in the first place. When the BIA
reviews an immigration judge’s credibility determination, it
asks only whether the determination was “clearly erroneous.”
8 C.F.R. § 1003.1(d)(3)(i); see also Vitug v. Holder, 723 F.3d
1056, 1063–64 (9th Cir. 2013). So when the BIA denies an
appeal from an adverse credibility determination, it does not
make its own credibility determination. It merely concludes
that the witness might not have been credible, i.e., that there
was enough evidence to support the immigration judge’s
finding. The BIA, as an appellate body, does not have the
opportunity to observe the witness’s demeanor, candor, or
other “ephemeral indicia of credibility.” Jibril v. Gonzales,
423 F.3d 1129, 1137 (9th Cir. 2005).

    In holding that the BIA could apply the falsus maxim to
discredit evidence supporting a motion to reopen, the Second
Circuit did not acknowledge or analyze these distinctions
between the role of an immigration judge and the role of the
BIA. See Qin Wen Zheng, 500 F.3d at 146–48. We therefore
decline the government’s invitation to follow the Second
Circuit’s decision here.

                             IV.

   Our entire panel agrees on this legal rule: the BIA may
not make adverse credibility determinations (including
8                         YANG V. LYNCH

adverse credibility determinations based on the falsus maxim)
in denying a motion to reopen.1 We part ways with our
dissenting colleague only over whether the BIA violated that
rule in this case.

     The BIA’s decision states, in relevant part:

         [T]he respondent has not shown why the
         Board should now accept the statements
         offered in support of the motion as reliable
         where his prior testimony has been found to
         lack credibility, and where the respondent has
         not offered an explanation to overcome the
         Immigration Judge’s adverse credibility
         determination. Accordingly, the respondent’s
         motion to reopen will be denied. See Matter
         of Coelho, 20 I&N Dec. 464, 472–73 (BIA
         1988) [sic] (explaining that a party who seeks
         a remand or to reopen proceedings to pursue
         relief bears a “heavy burden” of proving that
         if proceedings before the Immigration Judge
         were reopened, with all the attendant delays,
         the new evidence would likely change the
         result in the case).

As we read this passage, the BIA rejected the affidavit Yang
offered in support of his motion to reopen because the
immigration judge in removal proceedings had discredited
Yang’s prior testimony. The BIA required Yang “to
overcome the Immigration Judge’s adverse credibility


 1
  Another issue on which the entire panel agrees is that the students from
UC Irvine School of Law, Emily Cross and Ronald Park, are to be
commended for their high-quality representation of Mr. Yang.
                      YANG V. LYNCH                         9

determination” before it would accept his affidavit as
“reliable.” And “reliable,” in this case, can only mean
“credible”: Yang’s affidavit would only be unreliable if Yang
were lying.

    The BIA’s citation to Matter of Coelho does not change
the fact that it impermissibly discredited Yang’s affidavit.
We understand that citation to mean that, after Yang’s
affidavit was discredited, Yang’s remaining evidence was
insufficient to justify reopening. But the BIA should instead
have assessed the sufficiency of Yang’s evidence after taking
Yang’s affidavit as true.

                             V.

    Because the BIA may not make credibility determinations
on a motion to reopen, the BIA’s decision to discredit Yang’s
affidavit based on application of the falsus maxim was
contrary to law, and therefore an abuse of discretion. See Yan
Rong Zhao v. Holder, 728 F.3d 1144, 1147 (9th Cir. 2013);
Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002).
Accordingly, we grant Yang’s petition for review, and
remand for further proceedings consistent with this opinion.

   GRANTED and REMANDED.



SCHROEDER, Circuit Judge, dissenting:

    While I agree with the majority that the BIA should not
deny motions to reopen by making adverse credibility
determinations, I do not agree that the BIA denied this motion
by doing so. The motion to reopen was premised upon facts
10                    YANG V. LYNCH

Petitioner created after the IJ had ordered Petitioner removed.
He then joined a banned church, sent banned books to his
wife, and apparently had the authorities notified.

    Assuming the facts are true and he did those things, such
manufactured facts could not satisfy Petitioner’s heavy
burden of showing the result should change. This is what the
BIA concluded, citing Matter of Coelho, 20 I. & N. Dec. 464
(BIA 1992), a case that did not involve an adverse credibility
finding, but did involve a failure of proof. The law students
of U.C. Irvine are to be commended, but I must respectfully
dissent from the decision that the BIA abused its discretion.
