Ying Zhang v. Mukasey

266 F. App'x 601

Opinions

MEMORANDUM

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Ying Zhang (Zhang), a native and citizen of China, petitions for review of the decision of the Board of Immigration Appeals (BIA) affirming the denial by an immigration judge (IJ) of his requests for asylum and withholding of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the BIA’s opinion, which independently reviewed the record and did not state that it adopted the IJ’s decision, for substantial evidence. See Ahmed v. Keisler, 504 F.3d 1183, 1190-91 (9th Cir.2007).

The BIA acknowledged that the minor inconsistencies in Zhang’s testimony did not support an adverse credibility finding, but concluded that “testimony relating to the respondent’s alleged Falun Gong association, which involves the basis of the respondent’s alleged fear of persecution, provided the Immigration Judge with legitimate reason to question the veracity of the respondent’s claim.” The BIA cited two portions of the transcript of the hearing. In the first section, Zhang testified that he was not a Falun Gong practitioner in China or in the United States. In the second section, Zhang’s witness, Fu Jun, testified that Zhang practiced because “it’s only a concept” and that although he did not live near Zhang he had heard from Zhang that Zhang practiced in Los Angeles.

This inconsistency was not addressed in the cross-examination of Fu Jun or at any other time in the hearing. Zhang therefore did not have the required “reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.” Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004) (quotations omitted). Because Zhang was not given a chance to explain, the inconsistency cannot serve as substantial evidence to support a negative credibility determination. We therefore grant the petition for review and remand to the BIA to consider, taking Zhang’s testimony as true, whether Zhang has met the necessary conditions to be eligible for asylum and withholding of removal. See INS v. Ventura, 537 U.S. 12, 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.