Xin Xing v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 2, 2020
• Docket: 19-71988
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED NOV 2 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XIN XING; YI ZHENG, No. 19-71988

Petitioners, Agency Nos. A200-269-119 A200-269-120 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Argued and Submitted October 22, 2020 Honolulu, Hawaii

Before: WALLACE, BEA, and BENNETT, Circuit Judges. Concurrence by Judge BENNETT

Petitioners Xin Xing and Yi Zheng seek review of the decision of the Board

of Immigration Appeals (BIA), which affirmed the Immigration Judge’s (IJ) denial

of their asylum applications on adverse credibility grounds. We have jurisdiction

under 8 U.S.C. § 1252 to review final orders of removal. We review for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. substantial evidence “denials of asylum [and] withholding of removal.” Yali

Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (citation omitted). Factual

findings, including adverse credibility determinations, will be upheld “unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Garcia

v. Holder, 749 F.3d 785, 789 (9th Cir. 2014) (citations omitted). We deny the

petition.

“[A]n adverse credibility determination must be made after considering ‘the

totality of circumstances, and all relevant factors,’” Shrestha v. Holder, 590 F.3d

1034, 1040 (9th Cir. 2010), including, but not limited to, “the consistency

between . . . written and oral statements . . . the consistency of such statements

with other evidence of record . . . and any inaccuracies or falsehoods in such

statements,” regardless whether they “go[] to the heart of the applicant’s claim,”

8 U.S.C. § 1158(b)(1)(B)(iii). Because the BIA adopted the IJ’s decision and

provided its own analysis, the Court reviews both decisions. Flores-Lopez v.

Holder, 685 F.3d 857, 861 (9th Cir. 2012).

Here, the IJ identified, and the BIA relied on, multiple inconsistencies and

omissions between Petitioners’ testimony, prior statements, and documentary

evidence. For example, the BIA and IJ highlighted the inconsistency between the

Chinese and English versions of Xing’s bail receipt, versions proffered by

2 Petitioners. The English version lists the charge as “illegal family gathering,” but

the Chinese version cited anti-government Christian activities. The BIA and IJ

emphasized that Xing had more than five years to correct any errors in her

documents, is a college-educated woman, and had been represented by counsel

throughout the proceedings. They also cited the following omissions from prior

statements that were not disclosed until the IJ hearing: Xing’s father’s bribe of

Chinese authorities, Chinese authorities’ December 2017 visit to her parents, her

husband’s presence with her in the United States since March 2011, and

Petitioners’ registration of their marriage in China the same month as Xing’s arrest.

The BIA and IJ also cited the inconsistency in the amount of religious materials

Xing was carrying at the time of her arrest. When Xing told an asylum officer in

2012 that she was arrested with “a Bible,” the asylum officer asked her if she had

one Bible, to which Xing replied, “Yes.” However, before the IJ, she testified that

she had “[a]pproximately 10.”

The record does not compel the conclusion that the adverse credibility

determination was erroneous. Thus, the petition for review is DENIED.1

1 Petitioners have waived review of the BIA’s denial of their withholding of removal and Convention Against Torture claims by failing to raise them in their Opening Brief. Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003). Petitioners have also not exhausted their ineffective assistance of counsel claim, because they did not comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). 3 FILED Xin Xing v. Barr, No. 19-71988 NOV 2 2020 BENNETT, Circuit Judge, concurring in the judgment: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Given the highly deferential standard of review for adverse credibility

determinations, I concur in the judgment. I write separately, however, because I

believe that the Board of Immigration Appeals (“BIA”) and the immigration judge

(“IJ”) seriously erred in treating Petitioner Xin Xing’s English translation of her

bail receipt as a factor supporting the adverse credibility determination.

In 2011, Petitioner applied for asylum, withholding of removal, and

protection under the Convention Against Torture based on her practice of

Christianity. Her written statement attached to her application stated that, while

traveling from the United States to China, she was arrested at the Chinese airport

for possessing “Christian related books and Christian materials.” Chinese

authorities accused her of “collaborating with overseas cult forces, spreading anti-

China ideas and being against the Party and the government.” The Chinese police

beat her, detained her for three days, and gave her little water and food. Her family

bailed her out by paying 5,000 RMB, and she was forced to sign a “guarantee

statement” promising that she would no longer participate in any religious

activities and would report to the local police regularly. Petitioner fled to the

United States after her release.

1 In 2012, Petitioner provided the immigration court with a bail receipt written

in Chinese (“Bail Receipt”). Petitioner also submitted an English translation of the

Bail Receipt (“English Translation”), along with a declaration from the translator.

The English Translation states that Petitioner’s “Charge” was for an “Illegal

Family Gathering.”

In 2018, during the merits hearing on Petitioner’s claims, Petitioner testified

that she had been arrested for possessing Christian materials, which matched her

prior written statement. Her testimony and written statement, however, conflicted

with the English Translation, which states that the reason for her arrest was for an

“Illegal Family Gathering.” Petitioner was questioned about this discrepancy. She

testified that the Bail Receipt had been incorrectly translated, and that the Bail

Receipt actually states, “using the name of Christianity and doing anti-government

and anti-party activities.”

The IJ determined that Petitioner was not credible. The IJ’s very first reason

for finding Petitioner not credible was the discrepancy between the English

Translation and Petitioner’s testimony. The IJ determined that there was no

translation error and that the English Translation was an accurate translation.

Based on this finding, the IJ found that the inconsistency between the English

Translation and Petitioner’s testimony supported that Petitioner was not credible.

2 On appeal to the BIA, Petitioner submitted a new English translation of the

Bail Receipt (“Second English Translation”). The Second English Translation

states that Petitioner was arrested for “using Christianity religion for anti-party,

anti-government.” Notably, the government did not argue that the Second English

Translation was inaccurate. The BIA upheld the IJ’s adverse credibility

determination and denied relief based on the adverse credibility determination.

Like the IJ, the BIA’s very first reason for upholding the adverse credibility

determination was the discrepancy between the English Translation and

Petitioner’s testimony. The BIA refused to consider the Second English

Translation.

What the Bail Receipt says is not open to interpretation; it says what it says.

I believe that the Second English Translation is the correct translation of the Bail

Receipt, and I note that the government has never claimed otherwise. Further,

Petitioner would have no possible motive to present documents that are

inconsistent with her asylum application and hurt her case. Simply put, there was a

translation error (similar to a clerical error) that cannot be viewed as an attempt by

Petitioner to enhance her claims. Thus, the discrepancy has no bearing on

Petitioner’s credibility. See Shah v. INS, 220 F.3d 1062, 1068 (9th Cir. 2000)

(“Since the discrepancy is capable of being attributed to a typographical or clerical

error, it cannot form the basis of an adverse credibility finding. . . . If

3 discrepancies cannot be viewed as attempts by the applicant to enhance his claims

of persecution, they have no bearing on credibility.” (quotation marks, brackets,

and citation omitted)).

In my view, the discrepancy was central to the IJ’s and BIA’s adverse

credibility determination as it went to heart of Petitioner’s claims—the reason she

had been arrested—and was emphasized in their decisions. See Shrestha v.

Holder, 590 F.3d 1034, 1047 (9th Cir. 2010) (“[W]hen an inconsistency is at the

heart of the claim it doubtless is of great weight.”). Had the IJ and BIA known that

the Bail Receipt was entirely consistent with Petitioner’s testimony, they might

have determined that Petitioner was credible under the totality of the circumstances

and granted her relief. I think it is unjust to deny relief based on an adverse

credibility determination that turns on a mistake which has no bearing on a

petitioner’s credibility. “We must not forget that the stakes in asylum proceedings

are high . . . .” Ren v. Holder, 648 F.3d 1079, 1084–85 (9th Cir. 2011).

Even though the IJ’s and BIA’s adverse credibility determination was based

primarily on an improper basis, I am compelled to concur in the judgment given

the deferential standard of review.