Zhen Wang v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 9, 2019
• Docket: 16-72784
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 9 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ZHEN WANG, No. 16-72784

Petitioner, Agency No. A089-999-198

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted September 12, 2019 Pasadena, California

Before: WARDLAW, BERZON, and BADE, Circuit Judges.

Petitioner Zhen Wang seeks review of the Board of Immigration Appeals’s

(“BIA”) decision to affirm the immigration judge’s (“IJ”) denial of his request for

asylum, withholding of removal, and protection under the Convention Against

Torture. We grant his petition and remand for further proceedings.

“Where the BIA conducts its own review of the evidence and law, rather

than adopting the IJ’s decision, [this court’s] review is limited to the BIA’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. decision, except to the extent the IJ’s opinion is expressly adopted.” Mairena v.

Barr, 917 F.3d 1119, 1123 (9th Cir. 2019) (per curiam) (internal quotations and

citations omitted). “In reviewing the decision of the BIA, we consider only the

grounds relied upon by that agency.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th

Cir. 2004) (per curiam). We examine the BIA’s “legal conclusions de novo and its

factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850

F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted).

1. The BIA affirmed the IJ’s adverse credibility determination based on two

inconsistencies. Substantial evidence does not support either inconsistency as a

ground for an adverse credibility determination.

First, the BIA explained that Wang “stated in his testimony and asylum

application that he lived at #7 YunxhiaLi in Tianjin, from the time he was born in

December 1980” but “the household registry submitted by the respondent indicates

that his parents moved to that address in 1983 and that the respondent moved there

in 1997.” The IJ’s question to Wang about the household registry – “Why does the

household registry say otherwise?” – did not specify what the registry indicated or

how it contradicted Wang’s testimony. Wang’s response, “[t]hat’s the address,”

indicates that he thought the IJ asked why the household registry had a different

address, not why it showed a different time period, than his application. That

interpretation of the IJ’s question was entirely understandable, as the IJ’s preceding

2 recitation of what was in the application included the address. As there were no

follow-up questions, Wang was not given an adequate opportunity to explain the

apparent date discrepancy, and the BIA should not have relied on it. See, e.g., Zi

Lin Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004) (stating that the IJ’s failure

to further question an applicant resulted in the court speculating whether the

applicant did not understand the question and whether there was an explanation for

the inconsistency). See also Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011)

(“[A]n IJ cannot base an adverse credibility determination on a contradiction that

the alien could reconcile if given a chance to do so.”). Wang might have had a

persuasive explanation had the date discrepancy been distinctly identified, as it

would be unusual for a child to live in a different place than his parents throughout

his childhood.

Second, the BIA relied on an inconsistency in Wang’s account of when his

father was arrested. At Wang’s 2014 merits hearing, the IJ asked Wang for the

date of his father’s arrest, and Wang replied that he was not sure. After further

questioning, Wang eventually agreed with the suggestion on cross-examination

that “it had to have occurred either in November or December of 2008, is that

right?,” and subsequently also said “yes” to the question whether he was certain of

the timing. But when the government then asked Wang to explain the discrepancy

between that date and Wang’s August 16, 2009 supplementary statement – that his

3 father was detained “one week ago” – Wang stated that, “[b]ecause [his father’s

arrest] happened a long time ago, [he] did not remember clearly.” In sum, the

conclusion in the record regarding when Wang’s father was arrested was not an

unexplained inconsistency.

The BIA could, of course, have rejected Wang’s explanation if it was

reasonable to do so. See, e.g., Yan Liu v. Holder, 640 F.3d 918, 926 (rejecting

improbable or inadequate explanations for discrepancies). But the IJ did not

address Wang’s explanation for the date discrepancy at all, stating that Wang was

“unable to reconcile the two completely different time frames in his application.”

And the reason the BIA gave for rejecting Wang’s explanation was his “relative

certainty in his prior testimony regarding the date of the arrest.” So neither the IJ

nor the BIA ever specifically address Wang’s initial and ultimate explanation –

that he could not remember exactly when his father was arrested. See Rizk, 629

F.3d at 1088 (if an applicant “offers a ‘reasonable and plausible explanation’ for

[an] apparent discrepancy, the IJ must provide a specific and cogent reason for

rejecting it.” (citation omitted)). The BIA therefore should not have relied on this

inconsistency in affirming the IJ’s adverse credibility determination.

2. The government argues that the BIA relied on Wang’s failure to

corroborate his claim as an alternative ground for denial. But, the BIA decision

clearly states that Wang’s corroborating evidence was insufficient to meet his

4 burden “independent of his own non-credible testimony.” Because we have

concluded that the BIA’s adverse credibility determination was not supported by

substantial evidence, the case must be remanded to allow the BIA to reassess

whether Wang’s testimony met his burden of proof. If the BIA determines that

Wang’s credible testimony is insufficient alone, it must then assess whether the

corroborating evidence Wang provided, along with Wang’s explanations for why

he could not obtain supplemental documentation, is enough to meet his burden of

proof. See 8 U.S.C. § 1158(b)(1)(B)(ii); Ren, 648 F.3d at 1090. If so, the BIA will

then have to reach the IJ’s alternative grounds for denying Wang’s applications for

relief.

The petition for review is GRANTED and the case is REMANDED to the

BIA for further proceedings.