Xianyang Shao v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 29, 2019
• Docket: 15-70833
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XIANYANG SHAO, No. 15-70833

Petitioner, Agency No. A201-037-809

v. MEMORANDUM * 0F0F0F0F

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted October 22, 2019 San Francisco, California

Before: WALLACE and MURGUIA, Circuit Judges, and LASNIK, ** District F2F

Judge.

Xianyang Shao, a native and citizen of the People’s Republic of China,

petitions for review of the decision of the Board of Immigration Appeals (Board)

affirming the Immigration Judge’s (IJ) denial of his application for asylum,

withholding from removal, and protection under Article III of the Convention

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Against Torture (CAT). We have jurisdiction under 8 U.S.C. section 1252(a)(1).

Because the Board “conducted its own review of the evidence and law” and did not

“expressly adopt” the IJ’s decision, we independently review the Board’s decision.

Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (citation omitted). We deny

in part and grant in part the petition for review, and we remand to the Board.

Substantial evidence supports the IJ’s adverse credibility finding, which the

Board affirmed. In finding Shao not credible, the IJ offered “specific cogent”

reasons and based her finding on the “totality of circumstances.” Garcia v. Holder,

749 F.3d 785, 789 (9th Cir. 2014) (citation omitted). That Shao’s passport was

issued four days before the date on which he testified he was arrested was not a

trivial detail. Shao testified that he left China and sought asylum in the United States

when he did because he was “detained” and “arrested” by the Chinese government.

Whether Shao was arrested before or after his passport was issued was material to

his claim for asylum. See Shrestha v. Holder, 590 F.3d 1034, 1046–47 (9th Cir.

2010) (“Although inconsistencies no longer need to go to the heart of the petitioner’s

claim, when an inconsistency is at the heart of the claim it doubtless is of great

weight”).

This case is unlike those in which we have reversed an IJ’s adverse credibility

finding based on an applicant’s “failure to remember non-material, trivial details that

were only incidentally related to [his] claim[s] of persecution.” Kaur v. Gonzales,

2 418 F.3d 1061, 1064 (9th Cir. 2005). For example, in Bandaris v. I.N.S., the

applicant had inconsistently testified about whether he was sentenced to 75 lashes

or whipped 75 times on the date of his arrest. See 227 F.3d 1160 (9th Cir. 2000).

There, we reversed the IJ’s adverse credibility finding because the specific date the

applicant had received a type of beating, among many attacks over several days, was

a trivial matter about which the applicant had no reason to be untruthful. See id. at

1166.

Similarly, in Ren v. Holder, we reversed the IJ’s adverse credibility finding

where the asylum applicant (1) had declared in his written statement that he had been

unconscious on the third day of his detention contradicting his in-court testimony

that the incident occurred on the second day; (2) was unable to recall the specific

month of his arrest; and (3) testified incorrectly about the date of his baptism before

immediately correcting himself. See 648 F.3d 1079, 1085–89 (9th Cir. 2011). We

held that the applicant’s uncertainty about those specific dates had “no bearing on

[his] veracity.” Id. at 1089.

Unlike the findings in those cases, the IJ’s adverse credibility finding here,

which the Board affirmed, was based on inconsistent testimony probative of Shao’s

veracity. According to the Board, Shao “testified that he had applied for his passport

after his arrest, but his passport was issued on April 14, 2010, 4 days before the date

that he claims he was arrested.” Shao’s testimony calls into question whether the

3 arrest was truly Shao’s catalyst for leaving China and seeking asylum in the United

States. See Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006), overruled on

other grounds by Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) (stating that a

“single supported ground for an adverse credibility finding is sufficient if it relates

to the basis for petitioner’s alleged fear of persecution and goes to the heart of the

claim,” and an “inconsistency goes to the heart of a claim if it concerns events

central to petitioner’s version of why he was persecuted and fled”) (alteration,

internal quotation marks, and citations omitted).

The thoughtful dissent suggests our review should be limited to Shao’s

testimony that he ‘“got’––i.e., physically obtained––his passport after he was

arrested, which is consistent with a passport issuance date prior to the date of his

arrest.” The dissent then concludes that we rely on reasoning “not part of the BIA’s

decision, and this Court’s review is confined to the reasoning provided by the BIA.”

We agree that, because the Board did not expressly adopt the IJ’s decision, we

must only review the reasons identified in the Board’s decision. However, the

dissent does not explain why our review should be further confined to Shao’s

singular testimony that he “got” his passport after he was arrested. The dissent also

does not persuasively explain why we may not use the IJ’s oral decision as a guide

to reviewing the Board’s decision.

The Board evaluated Shao’s testimony “in light of all the evidence presented

4 in the case.” Kaur, 418 F.3d at 1066 (citation omitted). The Board “view[ed] each

portion of [Shao’s] testimony, not solely as independent pieces of evidence with no

bearing on the testimony as a whole, but in light of all of the evidence presented.”

Id. Kaur stands for the proposition that the IJ and the Board must review an

applicant’s testimony in the context in which it was presented. See Tekle v. Mukasey,

533 F.3d 1044, 1052 (9th Cir. 2008) (reversing IJ’s adverse credibility finding where

the IJ characterized evidence out of context).

In explaining the inconsistency in Shao’s testimony, the Board cited the

portion of the transcript in which Shao testified that before his arrest, he had no

“problems at all” at with his job. In the same portion of the transcript, Shao testified

that he “came to the U.S. . . . to flee the government’s detention.” Against this

backdrop, Shao testified that he obtained his passport after he was arrested. Given

Shao’s testimony as a whole, the IJ found that Shao’s credibility was undermined

when he testified that “he obtained his passport in order to leave China because of

the persecution he endured.” Citing to the relevant portions of Shao’s testimony, the

Board affirmed that finding, holding that Shao was not credible for testifying that

“he had applied for his passport after his arrest.”

Shao fails to establish that “any reasonable adjudicator would be compelled”

to disagree with the IJ’s adverse credibility finding based on Shao’s testimony that

he obtained his passport to leave China after he was arrested. 8 U.S.C. §

5 1252(b)(4)(B) (emphasis added); see also Kozulin v. I.N.S., 218 F.3d 1112, 1115

(9th Cir. 2000) (stating that when the Board conducts a clear error review, as was

done here, “we look to the IJ’s oral decision as a guide to what lay behind the

[Board’s] conclusion”) (citations omitted).

In addition, other inconsistencies in Shao’s testimony, such as his claim that

he was arrested before Easter, when Easter had been two weeks before, deprived

Shao’s asylum claim of the “requisite ring of truth.” Rizk v. Holder, 629 F.3d 1083,

1088 (9th Cir. 2011) (internal quotation marks and citation omitted). Shao’s

explanation that he had just converted to Christianity and was not familiar with

Christian festivals contradicted his earlier testimony that he had become a Christian

six months before the arrest and had attended church services on a weekly basis for

the past six months.

Because Shao was not credible, he was not eligible for asylum. See Farah v.

Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Because Shao was not eligible for

asylum, he failed to meet the more stringent standard for withholding of removal.

See Pedro-Mateo v. I.N.S., 224 F.3d 1147, 1150 (9th Cir. 2000) (“A failure to satisfy

the lower standard of proof required to establish eligibility for asylum therefore

necessarily results in a failure to demonstrate eligibility for withholding of

deportation”) (citation omitted). We therefore deny Shao’s petition for review of

the Board’s decision as to his asylum and withholding of removal claims.

6 Despite the IJ’s adverse credibility finding, Shao may still be entitled to relief

under CAT if the country conditions compel the conclusion that he would more

likely than not be tortured if he returned to China. See Shrestha, 590 F.3d at 1048–

49 (citation omitted). In evaluating the CAT claim, the Board was required to

consider all of the record evidence, including the country conditions in China, when

it assessed whether Shao was entitled to relief under CAT. See Al-Saher v. I.N.S.,

268 F.3d 1143, 1147 (9th Cir. 2001), amended, 355 F.3d 1140 (9th Cir. 2004). We

presume that the Board “thoroughly consider[ed] all relevant evidence in the

record.” Szonyi v. Whitaker, 915 F.3d 1228, 1258 (9th Cir. 2019) (citations omitted).

Although the Board was required to consider all of the evidence, it did not need to

“discuss each piece of evidence submitted.” Cole v. Holder, 659 F.3d 762, 771 (9th

Cir. 2011).

In its decision, the Board referenced Shao’s CAT claim in a single sentence,

concluding that Shao had “not established that he is more likely than not to be

tortured in China.” The Board never mentioned the record evidence of the country

conditions in China even though the Country Reports on Human Practices for 2011

in China, which addressed the risk of torture, and United States Commission on

International Religious Freedom 2012 Annual Report, among other documents, were

admitted in the record. The Board did not imply––even in general language––that

it had reviewed the record evidence of country conditions in China. The Board’s

7 failure to consider evidence of the country conditions in China was “reversible error”

because the country reports had been “submitted as evidence,” the reports

“addresse[d] the risk of torture,” and the Board did “not even mention” the reports

in its decision. Andrade v. Lynch, 798 F.3d 1242, 1244 (9th Cir. 2015) (citations

omitted).

We reject as premature the government’s argument that the Board’s error was

harmless. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010). Because

the Board “failed to consider the Country Report at all, the proper course of action

is to remand with instructions that the [Board] reconsider [the] CAT claim in light

of the Country Report.” Id. Accordingly, we remand with instructions for the Board

to reconsider Shao’s CAT claim in light of the entire record, including the country

reports.

PETITION DENIED IN PART, GRANTED IN PART, AND REMANDED.

8 FILED NOV 29 2019 Shao v. Barr, No. 15-70833 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

MURGUIA, Circuit Judge, concurring in part and dissenting in part: Although I agree that the Board of Immigration Appeals (“BIA”) did not

consider the country reports in connection with Shao’s claim under the Convention

Against Torture, I disagree that the two inconsistencies on which the BIA relied to

uphold the Immigration Judge (“IJ”)’s adverse credibility finding amount to

substantial evidence. Therefore, I would also grant the petition as to asylum and

withholding of removal.

First, the BIA concluded that Shao offered inconsistent testimony about the

exact date of his arrest. Shao consistently testified that he was arrested on April

18, 2010 on four different occasions—once in his asylum application and three

times during his testimony before the IJ. But he also stated on one occasion during

his asylum hearing that he was arrested “before the Easter came,” which happened

to fall on April 4, 2010 the year he was arrested. This isolated and minor

discrepancy as to his arrest date is too trivial to support an adverse credibility

finding under our precedent. See Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir.

2011) (“[G]iven the recognized difficulty that people in general, and victims of

abuse in particular, have with recalling dates, an asylum applicant’s failure to be

specific about the date of a traumatic experience is rarely probative of his or her

veracity.”).

1 Second, the BIA concluded that Shao testified inconsistently because he

stated “that he had applied for his passport after his arrest, but his passport was

issued on April 14, 2010, 4 days before the date that he claims he was arrested.”

However, Shao never testified that he applied for his passport after he was arrested.

He only testified that he “got”—i.e., physically obtained—his passport after he was

arrested, which is consistent with a passport issuance date prior to the date of his

arrest. Therefore, the BIA improperly relied on an inconsistency that does not

exist in the record. See Singh v. Gonzales, 403 F.3d 1081, 1090 (9th Cir. 2005)

(granting petition where “[t]he purported inconsistency identified by the IJ [did]

not exist, and [did] not support the adverse credibility determination.”).

The majority nonetheless concludes that Shao’s testimony about when he

obtained his passport is significant because it “calls into question whether the

arrest was truly Shao’s catalyst for leaving China and seeking asylum in the United

States.” However, that rationale is not part of the BIA’s decision, and this Court’s

review is confined to the reasoning provided by the BIA. See Hosseini v.

Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).

The majority suggests that its scope of review is not constrained to the BIA’s

decision because the BIA considered Shao’s testimony “in light of all of the

evidence,” citing to Kaur v. Gonzales, 418 F.3d 1061 (9th Cir. 2005). However,

Kaur is inapposite here. In that case, we held that, when assessing whether “false

2 statements and other inconsistencies” support an adverse credibility finding, we

must view the false or inconsistent testimony “in light of all the evidence

presented.” 418 F.3d at 1066–67 (holding that inconsistencies were so numerous

and blatant that testimony supported adverse credibility finding). Here, the BIA’s

finding is impermissibly based on purportedly false or inconsistent testimony that

does not exist in the record to begin with—i.e., testimony that Shao “applied for

his passport after his arrest”—an error by the BIA that neither the majority nor

Kaur addresses.

The majority also contends that we may consider testimony and possible

justifications not expressly adopted by the BIA by looking at the IJ’s oral decision.

However, we look at the IJ’s oral decision “as a guide to what lay behind the BIA’s

conclusion” when the BIA’s decision is unclear. Benyamin v. Holder, 579 F.3d

970, 974 (9th Cir. 2009) (“Where the standard of review the BIA employed is

unclear, we may look to both the BIA’s decision and the IJ’s oral decision ‘as a

guide to what lay behind the BIA’s conclusion.’” (quoting Avetova–Elisseva v.

INS, 213 F.3d 1192, 1197 (9th Cir.2000) (reviewing IJ’s oral decision where “the

lack of analysis that the BIA opinion devoted to the issue at hand – its simple

statement of a conclusion – also suggests that the BIA gave significant weight to

the IJ’s findings”))). Here, the BIA reviewed the IJ’s decision for clear error and

affirmed the IJ’s adverse credibility finding because of two very specific reasons:

3 a trivial inconsistency as to the arrest date, and an inconsistency that does not exist

in the record. Because the BIA’s decision is neither ambiguous nor conclusory,

there is no basis to extend our review to the IJ’s oral decision.

We have consistently held that, because “stakes in asylum proceedings are

high and [] serious errors in decisions issued by [IJs] and BIA officials

are not unusual,” the agency must “provide ‘specific and cogent reasons supporting

an adverse credibility determination’” in order to make this Court’s review of

agency action possible. Ren, 648 F.3d at 1084–85 (9th Cir. 2011) (quoting

Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010)). The BIA did not offer

the rationale articulated by the majority, and I respectfully disagree we may look

beyond the BIA’s decision.

Because these two pieces of testimony on which the BIA relied do not

amount to substantial evidence to support an adverse credibility finding, I

respectfully dissent as to that portion of the majority’s disposition.