Yuan Xiao v. Eric Holder, Jr.

Ninth Circuit

Yuan Xiao v. Eric Holder, Jr.

546 F. App'x 721

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 3, 2013

Docket09-73476

StatusUnpublished

This text of 546 F. App'x 721 (Yuan Xiao v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Yuan Xiao v. Eric Holder, Jr., 546 F. App'x 721 (9th Cir. 2013).

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Opinion

MEMORANDUM ***

Yuan Chun Xiao, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal of a decision by an immigration judge (IJ) denying his application for asylum, withholding of removal, *722 and relief under the Convention Against Torture (CAT).

The BIA erred in upholding the IJ’s adverse credibility determination on the basis of the IJ’s conclusory demeanor characterization. Although adverse credibility determinations are entitled to “a healthy measure of deference,” the IJ may not base an adverse credibility determination on a generalized assertion about demeanor; rather, the IJ should refer to “specific instances in the record that support [his] conclusion....” Shrestha v. Holder, 590 F.3d 1034, 1041, 1044 (9th Cir.2010); see also Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003). The IJ’s unsupported assertion that Xiao began to stutter when he “got off script” is contradicted by record evidence, including the IJ’s own observation that throughout the entirety of his testimony, Xiao exhibited a repetitive pattern of speech suggestive of an impediment.

Moreover, the IJ’s apparent frustration with Xiao, and in particular, with Xiao’s manner of speech, calls into question the IJ’s summary dismissal of petitioner’s explanations of perceived inconsistencies. The agency must consider a petitioner’s explanation of any inconsistencies in determining credibility, because “[t]o ignore a petitioner’s explanation for a perceived inconsistency ... would be to make a credibility determination on less than the total circumstances in contravention of the REAL ID Act’s text.” Shrestha, 590 F.3d at 1044; see also Soto-Olarte v. Holder, 555 F.3d 1089, 1091-92 (9th Cir.2009).

Therefore, we remand to the BIA for proper consideration of whether substantial evidence supports the IJ’s adverse credibility determination, including, if necessary, a remand to the IJ for further consideration of Xiao’s asylum, withholding of removal, and CAT claims.

Petition GRANTED and REMANDED.

***

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

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MEMORANDUM ***

Yuan Chun Xiao, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal of a decision by an immigration judge (IJ) denying his application for asylum, withholding of removal, *722 and relief under the Convention Against Torture (CAT).

The BIA erred in upholding the IJ’s adverse credibility determination on the basis of the IJ’s conclusory demeanor characterization. Although adverse credibility determinations are entitled to “a healthy measure of deference,” the IJ may not base an adverse credibility determination on a generalized assertion about demeanor; rather, the IJ should refer to “specific instances in the record that support [his] conclusion....” Shrestha v. Holder, 590 F.3d 1034, 1041, 1044 (9th Cir.2010); see also Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003). The IJ’s unsupported assertion that Xiao began to stutter when he “got off script” is contradicted by record evidence, including the IJ’s own observation that throughout the entirety of his testimony, Xiao exhibited a repetitive pattern of speech suggestive of an impediment.

Moreover, the IJ’s apparent frustration with Xiao, and in particular, with Xiao’s manner of speech, calls into question the IJ’s summary dismissal of petitioner’s explanations of perceived inconsistencies. The agency must consider a petitioner’s explanation of any inconsistencies in determining credibility, because “[t]o ignore a petitioner’s explanation for a perceived inconsistency ... would be to make a credibility determination on less than the total circumstances in contravention of the REAL ID Act’s text.” Shrestha, 590 F.3d at 1044; see also Soto-Olarte v. Holder, 555 F.3d 1089, 1091-92 (9th Cir.2009).

Therefore, we remand to the BIA for proper consideration of whether substantial evidence supports the IJ’s adverse credibility determination, including, if necessary, a remand to the IJ for further consideration of Xiao’s asylum, withholding of removal, and CAT claims.

Petition GRANTED and REMANDED.

***

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

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