Jinshi Jin v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JINSHI JIN, No. 16-70296
Petitioner, Agency No. A201-060-081
v.
MEMORANDUM*
WILLIAM BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
BOARD OF IMMIGRATION APPEALS
Argued and Submitted July 15, 2019
San Francisco, California
Before: PAEZ and RAWLINSON, Circuit Judges, and HUCK,** District Judge.
Jinshi Jin, a native and citizen of China, petitions for review of the Board of
Immigration Appeals’ (BIA) order dismissing her appeal from an immigration
judge’s (IJ) decision denying her application for asylum, withholding of removal,
and relief under the Convention Against Torture. The IJ denied her claims based on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
an adverse credibility determination, noting numerous inconsistencies between Jin’s
testimony and her documentary evidence as well as Jin’s failure to provide reliable
corroborative evidence. The BIA upheld the IJ’s adverse credibility finding based
on three of the inconsistencies identified by the IJ and the lack of corroborative
evidence. On appeal, Jin argues that the inconsistencies relied on by the BIA cannot
serve as substantial evidence in support of the adverse credibility determination. We
have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition.
We review findings of fact, including adverse credibility determinations, for
substantial evidence. See Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014). When
the BIA issues a reasoned opinion, we review “the reasons explicitly identified by
the BIA, and then examine the reasoning articulated in the IJ’s oral decision in
support of those reasons.” Id. (quoting Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th
Cir. 2008)). “[W]e do not review those parts of the IJ’s adverse credibility finding
that the BIA did not identify as ‘most significant’ and did not otherwise mention.”
Id. (quoting Tekle, 533 F.3d at 1051).
The government urges the Court to review all the reasons identified by the IJ,
rather than just the reasons set forth by the BIA in its decision, citing Morgan v.
Mukasey, 529 F.3d 1202, 1206 (9th Cir. 2008). The government’s reliance on
Morgan is misplaced. In Morgan, this Court reviewed all of the grounds supporting
the IJ’s credibility determination, even though the BIA’s opinion only discussed a
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few of those grounds, because the BIA “appear[ed] to adopt the immigration judge’s
‘credibility determination’ both in the opinion itself, which proceed[ed] by giving
examples from it, and by the denial of the motion to reopen, which sp[oke] as though
that determination was controlling.” Id. Here, though the BIA listed a few examples
from the IJ’s opinion, it is not apparent that the BIA adopted all the grounds for the
IJ’s credibility determination. Moreover, like in Lai, the BIA identified one of the
grounds discussed as “significant.” Thus, we limit our review to the reasons
specifically stated in the BIA decision as required by Lai and Tekle. See Lai, 773
F.3d at 970.
The BIA identified three inconsistencies between Jin’s testimony and her
documentary evidence. The first is that Jin’s testimony was inconsistent with the
Chinese administrative penalty decision that she submitted concerning the date of
her arrest. She testified that she was arrested on Sunday, May 2, 2010, during church
services; however, the administrative penalty decision reflects that she was arrested
on May 1, 2010, which was a Saturday. This inconsistency cannot serve as the sole
basis for the adverse credibility determination because it is a “minor discrepanc[y]
in dates” that has “no bearing on credibility.” Ren v. Holder, 648 F.3d 1079, 1086
(9th Cir. 2011) (internal quotation marks and citations omitted).
The second basis for the BIA’s finding is that Jin’s testimony conflicts with
the administrative penalty decision as to the location of her arrest. Jin testified she
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was arrested at her home. But, the administrative penalty decision stated she was
arrested at a rental property on Park Street in Yanji City, which does not match the
address Jin gave for her home during that period. Jin explained that “there was a big
park near [her] place so a lot of people just called it Park Street.” This inconsistency
cannot legally serve as substantial evidence for a credibility finding because neither
the IJ nor BIA provided “a specific and cogent reason for rejecting” Jin’s “reasonable
and plausible explanation.” See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011)
(citing Soto-Olarte v. Holder, 555 F.3d 1089, 1091–92 (9th Cir. 2009)).
The third basis for the BIA’s finding is that Jin testified inconsistently about
her activities in China prior to leaving. Jin submitted a certificate showing she
attended cooking school in China in 2010 to demonstrate that her asylum application
was timely filed. However, she testified that she was not doing anything other than
working at a cosmetic shop and selling clothes before she left China. Only after the
IJ pointed out that Jin submitted a cooking class certificate did Jin acknowledge that
she had taken the class. When the IJ asked Jin why she said she was not studying
anything, Jin said: “Well, basically when you said schooling, I thought of it as like
an academic study . . ., I did not think of [the cooking class] as an academic study[.]”
This inconsistency likewise cannot form the basis for an adverse credibility finding
because neither the IJ nor the BIA addressed Jin’s explanation. See Zhi v. Holder,
751 F.3d 1088, 1092–93 (9th Cir. 2014).
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Although the three inconsistencies identified by the BIA cannot serve as
substantial evidence in support of the adverse credibility determination, “there is a
reasonable prospect from the administrative record that there may be additional
reasons upon which the IJ or BIA could rely[.]” Soto-Olarte, 555 F.3d at 1095.
Accordingly, the adverse credibility finding is remanded on an open record to allow
the agency to reexamine Jin’s credibility and consider Jin’s explanations for the
inconsistencies.1 See id. at 1095–96.
GRANTED and REMANDED.
1
The BIA also upheld the IJ’s finding that Jin failed to present sufficient reliable
evidence to corroborate critical elements of her claim. On appeal, Jin argues that the
IJ did not provide adequate notice of the need for corroborating evidence and an
opportunity to present it or explain why it is unavailable as required by Ren. See
648 F.3d at 1091–92. Jin is only entitled to such notice if her testimony is found to
be “otherwise credible.” See Bhattarai v. Lynch, 835 F.3d 1037, 1043 (9th Cir.
2016) (citation omitted). On remand, if the BIA finds Jin credible, it should evaluate
whether she was given proper notice under Ren.
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