Shaohui Chen v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 10, 2019
• Docket: 15-73364
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 10 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SHAOHUI CHEN, No. 15-73364

Petitioner, Agency No. A074-595-840

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Argued and Submitted December 3, 2018 Pasadena, California

Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,** District Judge.

Shaohui Chen, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s

(IJ) denial of his claims for relief from removal. We have jurisdiction pursuant to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation. 8 U.S.C. § 1252. We grant the petition for review.

The BIA found that the IJ’s adverse credibility determination that formed the

basis for the IJ’s denial of Chen’s application for asylum and withholding of

removal was not clearly erroneous.1 We disagree. First, the IJ and BIA committed

legal error by evaluating Chen’s testimony without regard to the nature of the

claim he asserted and without mentioning, much less applying, our precedent

governing asylum claims premised on opposition to coercive family planning

practices. See, e.g., Ming Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018); Nai Yuan

Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010). Second, the IJ’s adverse

credibility decision was contradicted by the record and not supported by substantial

evidence. See Shire v. Ashcroft, 388 F.3d 1288, 1294 (9th Cir. 2004) (“Where, as

here, the BIA adopts the IJ’s credibility determination, we look through the BIA’s

decision to examine the IJ’s reasons for deeming the person not credible.”).

The IJ found that Chen’s “testimony regarding the gynecological problems

his wife had, which he claimed caused him to be targeted for sterilization in her

stead, was vague, vacillating, speculative, and uncorroborated.” However, Chen

actually testified that neither he nor his wife wanted her to be sterilized once the

doctor prohibited his wife’s sterilization based on medical concerns. In addition,

1 Chen did not appeal the denial of his claim for relief under the Convention Against Torture to the BIA. Consequently, he has waived that ground for relief before us. See 8 U.S.C. § 1252(d)(1).

2 the IJ failed to consider the entire record, assessing only part of Chen’s explanation

for how he knew that sterilization would be harmful to his wife. And the IJ also

erred by placing great weight on “trivial inconsistencies” in Chen’s testimony. See

Bingxu Jin v. Holder, 748 F.3d 959, 965 (9th Cir. 2014) (explaining that “trivial

inconsistencies” that “have no bearing on the petitioner’s veracity” cannot form the

basis for an adverse credibility determination (internal quotations and citations

omitted)).

The IJ’s finding that Chen testified inconsistently about his actions after the

birth of his son was unsupported by the record. Chen provided a clear timeline in

his testimony. He testified that his second child was born in November 2006, then

the family planning officials visited his house, then he paid the fine required by

those officials in December 2006, then he registered his son in February 2007, and

then they went into hiding that same month. The BIA also engaged in

“impermissible speculation” when it determined that Chen’s wife would not have

gone to the hospital if they had really been in hiding. Ge v. Ashcroft, 367 F.3d

1121, 1126 (9th Cir. 2004).

Finally, the IJ’s determination that Chen’s explanation of his arrival into the

United States at the Houston airport was “vague and ‘highly questionable’

testimony” was speculative and disregarded the totality of the evidence. The

record included evidence that it was highly improbable that the smugglers who

3 detained Chen for seven months immediately leading up to his arrival in Houston,

a fact the IJ did not question, would have explained to Chen their means for

smuggling him into the United States. See Shire, 388 F.3d at 1295–96. Moreover,

the government’s own allegation that Chen entered without inspection supports

Chen’s testimony that he did not encounter immigration officials until hours after

leaving the airport.

Because the BIA’s adverse credibility determination was not supported by

substantial evidence, we grant the petition and remand to the BIA to evaluate

Chen’s claims for asylum and withholding of removal, taking his testimony as true,

in compliance with 8 U.S.C. § 1101(a)(42) and applying legal precedent as to

China’s coercive population control policies.

PETITION GRANTED; REMANDED.