Bizhu Chen v. Gonzales

236 F. App'x 263

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2007
• Docket: No. 04-75486
• Status: Published

Opinion

MEMORANDUM

**

Bizhu Chen, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order which summarily affirmed an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Akinmade v. INS, 196 F.3d 951, 954 (9th Cir.1999), and we grant the petition for review and remand.

The Id’s adverse credibility determination is not supported by substantial evidence because Chen’s fraudulent K-l visa application packet cannot serve as a basis for an adverse credibility determination. See id. at 955-56 (fraudulent documents presented for the purpose of escaping immediate danger from an alien’s country of origin or for the purpose of gaining entry into the United States cannot serve as a basis for an adverse credibility determination).

Furthermore, the inconsistencies and omissions cited by the IJ are of minor import and do not go to the heart of Chen’s claim. See Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (“ ‘Minor inconsistencies’ that ‘reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.’ ”) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988)); see also Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996) (“[i]t is well settled that an applicant’s testimony is not per se lacking in credibility simply because it includes details that are not set forth in the asylum application”).

The IJ’s adverse credibility determination also rests on impermissible speculation that while under house arrest, Chen would not be able to obtain a passport and leave China. See Ge v. Ashcroft, 367 F.3d 1121, 1126 (9th Cir.2004) (IJ relied on impermissible personal speculation about the security practices and effectiveness of Chinese officials).

Accordingly, we grant the petition for review and remand the case to the BIA to consider whether she is eligible for relief. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.