MINGNAN DONG V. MERRICK GARLAND ( 2022 )

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINGNAN DONG, No. 16-70543
Petitioner, Agency No. A205-181-381
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2022
Pasadena, California
Before: A. Wallace Tashima and Kenneth K. Lee, Circuit Judges, and Kathleen
Cardone,* District Judge.
Opinion by Judge Cardone;
Dissent by Judge Tashima
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
SUMMARY **
Immigration
Denying Mingnan Dong’s petition for review of a decision of the Board of
Immigration Appeals upholding the denial of his application for asylum and related
relief on credibility grounds, the panel concluded that the agency’s adverse
credibility determination was supported by substantial evidence.
Dong sought asylum and related relief on the ground that he was persecuted in
China for his Christian faith. In a statement in support of his application, Dong
wrote that he was arrested at a church gathering and detained, and during that
detention, the police beat him, questioned him about church activities, and forced
him to sign a document stating that he would not participate in the church. Before
an immigration judge, Dong later testified that he was detained for one week,
during which he was interrogated twice. Dong also testified in response to
questions regarding his injuries and failure to get medical care, and the IJ asked
him to clarify other apparent discrepancies between his application and testimony.
In denying relief on credibility grounds, the IJ referenced (1) the omission of
the first interrogation from Dong’s written application and his suspect demeanor
when explaining that omission, (2) his “less than candid” testimony about his
injuries and failure to seek medical care, and (3) the questionable authenticity of
his household registration.
The panel concluded that, in light of Dong’s apparent demeanor, it was
reasonable for the BIA to conclude that his omission of the first interrogation from
his application, together with his questionable explanation for that omission,
undermined his credibility. The panel explained that the omission was not enough
to undermine his credibility, but Dong’s shifting explanation could be reasonably
viewed as internally inconsistent, and therefore, implausible. The panel also gave
credit to the IJ’s finding that Dong exhibited a suspect demeanor during this
exchange, explaining that such findings merit special deference. The panel also
explained that, although Dong’s explanation for the omission may well be facially
**
This summary constitutes no part of the opinion of the court. It has been
prepared by court staff for the convenience of the reader.
plausible, the agency specified cogent reasons for rejecting it.
The panel next concluded that the BIA reasonably concluded that Dong’s
questionable testimony about his injuries, and his failure to mention those injuries
at all in his asylum application, supported the adverse credibility
determination. Observing that it was not entirely clear from the transcript that
Dong’s story was inconsistent, the panel explained that the substantial evidence
standard of review does not enable the court to substitute its judgment for the
BIA’s. Rather, the court must accept administrative findings of fact unless any
reasonable adjudicator would be compelled to conclude to the contrary. Here, the
panel concluded that a reasonable adjudicator could interpret Dong’s testimony as
waffling between inconsistent reasons for why he did not seek medical care and
inconsistent descriptions of how serious his injuries were. The panel further noted
that it must give special deference to the IJ’s determination that this aspect of
Dong’s testimony was “less than candid.”
The panel also concluded that the BIA reasonably determined that the notarized
copy of Dong’s household registration document, which the IJ found to be
potentially fraudulent, supported adverse credibility. Noting that one suspect
document is unlikely to constitute substantial evidence of adverse credibility on its
own, the panel concluded that, under the totality of the circumstances, the BIA
reasonably concluded that it supported the credibility determination.
The panel observed that this was a close case in which Dong offered facially
plausible explanations for some, if not all, of the identified inconsistences and
omissions. However, the panel explained that plausible explanations do not always
compel credence.
Dissenting, Judge Tashima wrote that the adverse credibility determination was
based on purported inconsistencies between Dong’s written application and his
oral testimony that were, in fact, not inconsistent. Judge Tashima concluded that
Dong’s testimony was more detailed in some aspects than his written application,
but that he provided reasonable and “eminently believable” explanations for not
providing the details in his application. Judge Tashima also wrote that the agency
did not provide any reasons for its rejection of Dong’s explanations. Thus, Judge
Tashima concluded that the totality of the circumstances did not support the
adverse credibility finding.
COUNSEL
Thomas J. Tarigo (argued), Law Offices of Thomas J. Tarigo, Los Angeles,
California; Michael A. Rohr, Law Offices of Michael A. Rohr, West Covina,
California; for Petitioner.
Nancy K. Canter (argued), Brendan T. Moore, and Matthew M. Downer, Trial
Attorneys; Steven K. Uejio; Linda S. Wernery, Assistant Director; Benjamin C.
Mizer, Principal Deputy Assistant Attorney General; Office of Immigration
Litigation, U.S. Department of Justice, Washington, D.C.; OIL, Civil
Division/Office of Immigration Litigation, Department of Justice, Washington,
D.C.; Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland
Security, San Francisco, California; for Respondent.
CARDONE, District Judge:
Mingnan Dong petitions for review of the Board of Immigration Appeals’
(BIA) decision dismissing his appeal of the Immigration Judge’s (IJ) denial of his
applications for asylum and withholding of removal. Considering the totality of
the administrative record, particularly the IJ’s findings about Dong’s demeanor and
lack of candor, we conclude that the BIA’s adverse credibility determination was
supported by substantial evidence. Accordingly, the petition for review is denied.
I. BACKGROUND
Dong is a citizen of the People’s Republic of China. He entered the United
States on August 10, 2011, as a nonimmigrant student. On April 19, 2012, he
applied for asylum, withholding of removal, and relief from removal under the
Convention Against Torture, claiming that he was persecuted for his Christian faith
in China. On May 24, 2012, he was issued a Notice to Appear for failing to
comply with the conditions under which he was admitted into the country. On
August 9, 2012, he appeared before the IJ, conceded removability, and renewed his
application for asylum and other relief.
In a written statement attached to his application, Dong stated that he fled
China for the United States after he was arrested and harassed by the police on
account of his Christian faith. He stated that on April 10, 2011, he was arrested at
a church gathering along with several other church members and detained. During
2
his detention, the police beat him and questioned him about church activities.
They also forced him to sign a “guarantee letter,” which stated that he would not
participate in the church. After Dong was released, he was required to report
regularly to the police station. Authorities also came to his home and threatened
and harassed his family members.
On May 1, 2014, Dong testified before the IJ in support of his application
and again described the 2011 incident. He testified that he was detained for one
week, during which he was interrogated twice. The first interrogation occurred on
the second day of his detention, when he was taken to an interrogation room and
warned not to participate in church activities. Then on the fourth day, two officers
questioned him about the church, and when he refused to talk, they punched and
kicked him and beat him with their batons. During this second incident, the
officers also forced Dong to sign the letter promising that he would not participate
in church activities.
When the IJ asked whether he was injured during the second interrogation,
Dong responded that he was “a little bit” injured and had bruising on his chest. He
stated that he did not get medical care, and when asked why, he said that the police
told him he could not see a doctor or tell anyone that “[he] suffered a beating by
them.” Suggesting this response was inconsistent, the IJ asked Dong whether the
police told him he could not see a doctor or if they told him he could not tell
3
anyone about the beating. Dong said he was not supposed to tell anyone about the
beating. The IJ then asked Dong if he could have seen a doctor, and he responded,
“right.” On cross-examination, Dong was asked if his injuries were not serious
enough to require medical care, and he also responded, “right.”
At the hearing, the IJ asked Dong to clarify other apparent discrepancies
between his application and his testimony: First, she asked Dong why he did not
mention in his application that he was interrogated twice. Dong initially responded
that he forgot, but then said he “didn’t forget” and only mentioned the second
interrogation because it was more serious. The IJ then asked Dong why he did not
refer to his injuries in his application, and he explained that he wanted to complete
it quickly and “felt it was not necessary to, to extend excessive descriptions of th[e
injuries].”
The government also challenged the authenticity of the notarized copy of
Dong’s Chinese household registration that he submitted as part of his application.
At the hearing, the government pointed out that the document indicates that Dong
himself presented it to the notary, but it is dated after Dong left China for the
United States. Dong testified that his mother got the document notarized, and he
did not know why it lists his name.
The IJ denied all three of Dong’s claims for relief. She found that his
testimony was not credible, referencing (1) the omission of the first interrogation
4
from his written application and suspect demeanor when explaining that omission,
(2) his “less than candid” testimony about his injuries and failure to seek medical
care, and (3) the questionable authenticity of his household registration. She also
considered two letters Dong submitted as evidence of his Christian faith and found
that they did nothing to alter her conclusion. Finally, the IJ determined that, even
if Dong’s testimony were true, it would not establish that he was entitled to relief
as it did not show past persecution.
The BIA dismissed Dong’s appeal on credibility grounds alone, finding no
clear error in the IJ’s adverse credibility determination. Dong timely petitioned for
review of the BIA’s dismissal of his appeal of the IJ’s denial of his applications for
asylum and withholding of removal.1 We have jurisdiction under 8 U.S.C. § 1252.
II. DISCUSSION
A. STANDARD OF REVIEW
“Where, as here, the BIA reviewed the IJ’s credibility-based decision for
clear error and ‘relied upon the IJ’s opinion as a statement of reasons’ but ‘did not
merely provide a boilerplate opinion,’ we look to the IJ’s oral decision as a guide
to what lay behind the BIA’s conclusion.” Lai v. Holder, 773 F.3d 966, 970 (9th
1
The BIA also dismissed Dong’s appeal of the IJ’s denial of relief under the
Convention Against Torture, but Dong does not challenge that denial on appeal.
Nor does Dong challenge the agency’s conclusion that the two letters submitted
as evidence of his Christian faith were entitled to little weight. Accordingly, we
consider neither issue.
5
Cir. 2014) (quoting Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)
(cleaned up)). “In so doing, we review here 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.We review the agency’s factual findings, including credibility
determinations, for substantial evidence. Kumar v. Garland, 18 F.4th 1148, 1153
(9th Cir. 2021). Under this standard, “findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” Iman v.
Barr, 972 F.3d 1058, 1064 (9th Cir. 2020) (quoting Silva-Pereira v. Lynch, 827
F.3d 1176, 1184 (9th Cir. 2016)). Thus, “only the most extraordinary
circumstances will justify overturning an adverse credibility determination.” Id.(quoting Jin v. Holder, 748 F.3d 959, 964 (9th Cir. 2014)).
B. ANALYSIS
Dong contends that substantial evidence does not support the BIA’s adverse
credibility determination.
Under the REAL ID Act, an IJ’s credibility determination may be based on
the demeanor, candor, or responsiveness of the applicant or witness,
the inherent plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under oath, and
considering the circumstances under which the statements were
made), the internal consistency of each such statement, the
consistency of such statements with other evidence of record
(including the reports of the Department of State on country
6
conditions), and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim . . . .
8 U.S.C. § 1158(b)(1)(B)(iii). The statute requires a “healthy measure of deference
to agency credibility determinations . . . because IJs are in the best position to
assess demeanor and other credibility cues that [courts] cannot readily access on
review.” Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010). But it “does
not give a blank check to the IJ enabling him or her to insulate an adverse
credibility determination from our review of the reasonableness of that
determination.” Id. at 1042. The IJ must still “provide specific and cogent reasons
in support of an adverse credibility determination.” Id. at 1043 (quoting Malkandi
v. Holder, 576 F.3d 906, 917 (9th Cir. 2009)).
Inconsistencies in an applicant’s testimony may support an adverse
credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii). So too may an
applicant’s omission of information from a written application or interview that is
later revealed through testimony. See Lai, 773 F.3d at 971 (collecting cases).
Omissions, however, are less damaging to credibility than direct contradictions,
and “the mere omission of details is insufficient to uphold an adverse credibility
finding.” Id. (quoting Singh v. Gonzales, 403 F.3d 1081, 1085 (9th Cir. 2005)).
“If the IJ relies upon purported inconsistencies to make an adverse
credibility determination, the IJ must provide the noncitizen with an opportunity to
explain each inconsistency.” Barseghyan v. Garland, 39 F.4th 1138, 1143 (9th
7
Cir. 2022). “If that explanation is ‘reasonable and plausible,’ then the [IJ] ‘must
provide a specific and cogent reason for rejecting it.’” Munyuh v. Garland, 11
F.4th 750, 758 (9th Cir. 2021) (quoting Rizk v. Holder, 629 F.3d 1083, 1088 (9th
Cir. 2011)).
In this case, the BIA affirmed the IJ’s adverse credibility determination
largely based on a finding that Dong testified inconsistently about two aspects of
his story—(1) the number of times he was interrogated, and (2) the extent of his
injuries from the second interrogation.
1. Number of Interrogations
The BIA identified Dong’s omission of the first interrogation from his
application, together with his suspect explanation for that omission, as a basis for
adverse credibility. Dong’s written statement described only the second
interrogation—he did not mention the first interrogation, where he was threatened
and warned not to participate in church activities. At his hearing, the IJ asked
Dong to explain the omission:
Q: Sir, I’m wondering why in that statement, you did not mention that
you were interrogated twice?
A: It might be because I forgot.
...
Q: All right. So, sir, you forgot that you were interrogated twice?
A: I didn’t forget that I was interrogated two times. What I just now want
to say was that I in my statement, I just mentioned the second time I was
interrogated.
8
Q: But my question to you, sir, was why didn’t you mention that you had
been interrogated on two different occasions?
A: Because the second time when I was interrogated to my honest, to my
feeling, experience, it was much [more] serious so I just put it down the
second time.
Dong’s omission of the first interrogation—a relatively insignificant event
by his own account—is not enough to undermine his credibility. See Singh, 403
F.3d at 1085. And his responses to the IJ’s questions could be understood as
Dong’s attempt to clarify that he inadvertently failed to include the incident in his
application because he did not think it was particularly important. But the shifting
explanation from, “It might be because I forgot” to, “I didn’t forget” could also be
reasonably viewed as internally inconsistent, and therefore, implausible. See
Munyuh, 11 F.4th at 758.
And the IJ also found Dong exhibited a suspect demeanor during this
exchange, which merits special deference. See Ling Huang v. Holder, 744 F.3d
1149, 1154 (9th Cir. 2014) (quoting Singh-Kaur v. I.N.S., 183 F.3d 1147, 1151 (9th
Cir. 1999)). Credibility determinations based on demeanor are given substantial
weight “for the obvious reason that [the IJ] sees the witnesses and hears them
testify, while [we] look only at cold records.” Shrestha, 590 F.3d at 1041 (quoting
Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir. 2003)). “[A]spects of
the witness’s demeanor—including the expression of his countenance . . . the
9
modulation or pace of his speech and other non-verbal communication . . . are
entirely unavailable to a reader of the transcript.” Id. (quoting Mendoza
Manimbao, 329 F.3d at 662); see also Jibril v. Gonzales, 423 F.3d 1129, 1137 (9th
Cir. 2005) (“[Special deference] is only proper . . . [because f]ew, if any, of these
ephemeral indicia of credibility can be conveyed by a paper record of the
proceedings.”). So we accord IJs’ determinations substantial deference in this
context. See Shrestha, 590 F.3d 1041. Still, an IJ must identify “specific
instances” in the record that reflect suspect demeanor and “may not rely on . . .
naked conclusions . . . that the petitioner’s demeanor undermined [his] credibility.”
Id. at 1042.
Here, the IJ explained that, when asked why he did not describe the first
interrogation in his written statement, Dong took a “somewhat long pause” before
answering. From a recording of Dong’s testimony, the BIA confirmed that he
paused for at least ten seconds. And the IJ noted that only when Dong “appeared
to realize that his explanation [for the omission] was insufficient,” did he change
his answer. Because we lack the benefit of having observed Dong testify, we give
credit to these findings. See Mendoza Manimbao, 329 F.3d at 662.
This case is unlike Barseghyan, in which we overturned an adverse
credibility determination, largely because “neither the BIA nor the IJ provided a
‘specific and cogent’ reason for rejecting what appear[ed] to be a ‘reasonable and
10
plausible’ explanation” for a purported inconsistency. 39 F.4th at 1145 (quoting
Rizk, 629 F.3d at 1088). Dong’s explanation for omitting the first interrogation
from his written application may well be facially plausible. Even so, the agency
specified cogent reasons for rejecting it: Dong’s long initial pause before
answering, followed by a change in his explanation after he “appeared to realize
[it] was insufficient.” In light of Dong’s apparent demeanor, it was reasonable for
the BIA to conclude that his omission of the first interrogation from his
application, together with his questionable explanation for that omission,
undermined his credibility. See Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir.
2011) (holding that the record supported IJ’s well-considered decision to reject
petitioner’s plausible explanation for omissions).
2. Injuries and Medical Treatment
The next basis on which the BIA affirmed the IJ’s adverse credibility
determination was Dong’s omission of his injuries from his application and his
inconsistent testimony about his need for medical care. In his written statement,
Dong described “pain” from the beating, but he did not mention injuries. Then at
his hearing, he stated that he suffered bruising on his chest but never sought
medical care:
Q: What injuries did you have?
A: Just, you know, have a black and blue on the front chest.
...
11
Q: And did you ever seek medical attention?
A: No . . . [b]ecause the police didn’t allow me to see the doctor.
Q: Did you ask the police to see a doctor?
A: Yeah.
Q: And when did you ask them?
A: After I was beaten.
Q: And what did the police say?
A: Just they’ll threaten me, didn’t allow me to see doctor.
The IJ asked Dong to clarify:
Q: All right, sir, I have to get some clarification here. You just explained
that you were only injured a little bit. And then when you were asked what
injury you sustained, you said your chest area in the front was black and
blue. Was that correct?
A: Yes.
Q: Why did you believe that you needed medical treatment?
A: Because I feel hurting so I need to see doctor.
Q: Did you seek medical attention after you were released?
A: No.
Q: Why not?
...
A: I was afraid of the police . . . . Because the police had said that I was not
allow[ed] to see the doctor, to see any doctor.
Q: So the police told you, sir, at some point during your detention that you
were never to see a doctor?
12
A: No.
Q: Well what did they tell you?
A: They stated that I was not supposed to say that I suffered a beating by
them.
Q: All right. So they said not to tell anyone how you got your injuries.
They did not tell you that you couldn’t see a doctor. Is that correct?
A: But they said I was not supposed to see any doctor. I was not allowed.
Q: Well, sir, that quite frankly to me does not make sense. I’m going to be
quite candid with you, sir. That does not make sense. They told you that
you could not see a doctor or they told you that you couldn’t tell anyone
about how you got your injuries, which is it?
A: I was not allowed to say that I suffered a beating by them.
Q: So you could have gone to see a doctor after your release, is that correct?
A: Right.
Dong later conceded that his injuries “were not so serious as to require a trip to
a doctor or a hospital visit” and that he “felt it was not necessary” to describe
them in his written statement.
The IJ found that Dong’s testimony about his injuries and failure to seek
medical treatment was inconsistent and “less than candid” and that his
explanation for omitting his injuries from his statement was insufficient. From
the transcript, it is not entirely clear that Dong’s story was inconsistent. One
plausible, cohesive reading of Dong’s testimony is that he initially felt he
13
needed medical care but did not seek it out because of police threats. Because
he was ultimately able to recover without seeing a doctor, he felt, in retrospect,
that his injuries were not that serious, so he omitted them from his application.
“Our standard of review, though, does not enable us to substitute our
judgment . . . for the BIA’s.” Alden v. Holder, 589 F.3d 1040, 1046 (9th Cir.
2009). “We are required to accept administrative findings of fact ‘unless any
reasonable [adjudicator] would be compelled to conclude to the contrary.’” Id.(quoting 8 U.S.C. § 1252(b)(4)(B)); see also Zamanov, 649 F.3d at 974. Dong
testified first that he thought he needed to see a doctor but did not because the
police forbade him. He later testified that his injuries were not so serious as to
require medical attention. Certainly, a reasonable adjudicator could interpret
Dong’s testimony as waffling between inconsistent reasons for why he did not
seek medical care and inconsistent descriptions of how serious his injuries
were.
And we must give special deference to the IJ’s determination that this
aspect of Dong’s testimony was “less than candid.” See Jibril, 423 F.3d at 1137(“[I]t would be extraordinary for a reviewing court to substitute its second-hand
impression of the petitioner’s demeanor, candor, or responsiveness for that of
the IJ.”). The IJ elaborated that she was concerned with Dong’s “lack of candor
in responding to questions regarding whether or not he suffered any injuries
14
during his asserted mistreatment.” The IJ was in a much better position than we
are now to pick up on the “ephemeral indicia of credibility” and cut through the
ambiguities in Dong’s testimony. See id.; see also Shrestha, 590 F.3d at 1041.
In affirming the IJ’s analysis, the BIA reasonably concluded that Dong’s
questionable testimony about his injuries, and his failure to mention those
injuries at all in his asylum application, supported an adverse credibility
determination.
3. Household Registration Document
Finally, the BIA found no clear error in the IJ’s finding that the notarized
copy of Dong’s household registration document was potentially fraudulent,
further supporting adverse credibility. The IJ explained that the document,
which purports to be a copy of Dong’s family household registration document,
states that Dong presented the original registration document to the Chinese
notary in July 2012—after he left China for the United States. At the hearing,
Dong stated that, in fact, his mother presented the document to the notary, but
he could not explain why it listed his name rather than hers. From this, the BIA
reasonably concluded that the IJ did not err in finding the document suspect.
Although one suspect document is unlikely to constitute substantial
evidence of adverse credibility on its own, under the totality of the
circumstances, the BIA reasonably concluded that it supported the IJ’s
15
credibility determination. See Yemaine-Berhe v. Ashcroft, 393 F.3d 907, 911
(9th Cir. 2004) (“[T]he use of a fraudulent document may, considering the
totality of the record, lend support to an adverse credibility finding.”).2
III. CONCLUSION
This is a close case, in which reasonable adjudicators could reach
different conclusions. But “[t]o reverse the BIA finding we must find that the
evidence not only supports that conclusion, but compels it.” Aden, 589 F.3d at
1046 (alteration in original) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1 (1992)). Dong offered facially plausible explanations for some, if not all, of
the inconsistencies and omissions identified by the IJ. But plausible
explanations do not always compel credence. See Zamanov, 649 F.3d at 974.
And the IJ offered specific, cogent reasons for rejecting Dong’s explanations.
See Munyuh, 11 F.4th at 758. Because the agency rested its adverse credibility
determination on substantial evidence, we do not disrupt it.
PETITION FOR REVIEW DENIED.
2
A household registration is not the type of document an asylum applicant
might use to escape persecution or gain entry to the United States, such that its
fraudulence would not undermine an applicant’s credibility. See, e.g.,
Akinmade v. I.N.S., 196 F.3d 951, 955 (9th Cir. 1999) (holding that petitioner’s
use of a fraudulent passport to enter the country could not serve as a basis for
adverse credibility). Rather, Dong submitted the document as part of his
application to corroborate his identity and establish where and with whom he
lived in China.
16
FILED
OCT 19 2022
Dong v. Garland, No. 16-70543
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TASHIMA, Circuit Judge, dissenting:
The adverse credibility determination here was based on purported
inconsistencies between Dong’s written asylum application and his oral testimony
that were, in fact, not inconsistent. Dong’s testimony was more detailed in some
aspects than his written application, but he provided reasonable and “eminently
believable” explanations for not providing the details in his application. Bhattarai
v. Lynch, 835 F.3d 1037, 1044 (9th Cir. 2016).
The requirement in 8 U.S.C. § 1158(b)(1)(B)(iii) that “inconsistencies ‘be
considered in light of the “totality of the circumstances, and all relevant factors”’
indicates that the agency has a duty to consider a ‘petitioner’s explanation for a
perceived inconsistency and other record evidence that sheds light on whether
there is in fact an inconsistency at all.’ If that explanation is ‘reasonable and
plausible,’ then the agency ‘must provide a specific and cogent reason for rejecting
it.’” Munyuh v. Garland, 11 F.4th 750, 758 (9th Cir. 2021) (first quoting Shrestha
v. Holder, 590 F.3d 1034, 1043-44 (9th Cir. 2010); and then quoting Rizk v.
Holder, 629 F.3d 1083, 1088 (9th Cir. 2011)). In this case, the agency did not
provide any reasons for its rejections of Dong’s reasonable and plausible
explanations.
It is “well established in this circuit that ‘the mere omission of details is
insufficient to uphold an adverse credibility finding.’” Iman v. Barr, 972 F.3d
1058, 1067 (9th Cir. 2020) (quoting Lai v. Holder, 773 F.3d 966, 971 (9th Cir.
2014)). Moreover, “in general, ‘omissions are less probative of credibility than
inconsistencies created by direct contradictions in evidence and testimony.’” Id.(quoting Lai, 773 F.3d at 971). Here, there were no direct contradictions in the
evidence and testimony. Instead, Dong’s testimony was “remarkably detailed,
consistent with his written declaration, and plausible in light of the U.S. State
Department report . . . in the record.” Bhattarai, 835 F.3d at 1046.
The majority’s decision to downplay the BIA’s reliance on the purported
inconsistencies and to focus instead on demeanor findings, which were themselves
based on those purported inconsistencies, reveals the flaws in the agency’s adverse
credibility determination. The majority also cites the “special deference” owed
the agency. Maj. Op. at 14. “While the substantial evidence standard demands
deference to the IJ, ‘[w]e do not accept blindly an IJ’s conclusion that a petitioner
is not credible. Rather, we examine the record to see whether substantial evidence
supports that conclusion and determine whether the reasoning employed by the
[agency] is fatally flawed.’” Jie Cui v. Holder, 712 F.3d 1332, 1336 (9th Cir.
2013) (quoting Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002)); see also Shrestha,
2
590 F.3d at 1042 (“Despite our recognition that agency credibility determinations
deserve substantial deference, the REAL ID Act does not give a blank check to the
IJ enabling him or her to insulate an adverse credibility determination from our
review of the reasonableness of that determination.”). Here, not only was the
agency’s reasoning fatally flawed, but the totality of the circumstances does not
support the adverse credibility finding.
I would grant the petition because the adverse credibility determination is
not supported by the totality of the circumstances. I therefore respectfully dissent.
I. Standard of Review
“Because ‘the BIA reviewed the IJ’s credibility-based decision for clear
error and relied upon the IJ’s opinion as a statement of reasons but did not merely
provide a boilerplate opinion,’ we review ‘the reasons explicitly identified by the
BIA, and then examine the reasoning articulated in the IJ’s . . . decision in support
of those reasons.’” Kumar v. Garland, 18 F.4th 1148, 1152–53 (9th Cir. 2021)
(quoting Lai, 773 F.3d at 970). “In the end we must affirm credibility findings
only when they are supported by the ‘totality of the circumstances.’” Id. at 1155
(quoting Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021 (en banc)).
II. Number of Interrogations
3
The BIA’s first basis for the adverse credibility finding was the purported
inconsistency about the number of interrogations Dong endured. The agency’s
finding that Dong’s testimony about the number of interrogations was inconsistent
with his asylum application statement does not withstand scrutiny – it is not
supported by substantial evidence. Dong never wrote in his application that he
was interrogated only once. He did not write about the number of interrogations,
but instead focused on the salient point that he was beaten when he was
interrogated, writing: “During interrogation, police attempted to force me to
disclose other members and gathering sites, when I refused, they punched and
kicked me, and used police club to whip upon me.” Dong’s testimony that the
police interrogated him once earlier in his detention “did not conflict with the rest
of [Dong]’s application or cast doubt upon the accuracy of it.” Lai, 773 F.3d at
974; see Barseghyan v. Garland, 39 F.4th 1138, 1143 (9th Cir. 2022) (rejecting the
agency’s determination that the petitioner’s testimony regarding how he got to the
hospital after being tortured was inconsistent, reasoning, in part, that “[h]is written
declaration does not specify how he arrived at the hospital (just that he went
there)”); Kumar, 18 F.4th at 1154–55 (rejecting the BIA’s finding that a letter
conflicted with the petitioner’s testimony because it did not describe one of four
attacks, stating that the letter did not undermine his testimony but bolstered it by
4
corroborating three of the four violent incidents). “This alleged inconsistency
does not support an adverse credibility determination because it is not, in fact
inconsistent.” Barseghyan, 39 F.4th at 1143.
When asked why he did not write about the initial interrogation, Dong
explained that “the second time when I was interrogated to my honest [sic], to my
feeling, experience, it was much serious so I just put it down the second time.”
By Dong’s own account, the initial interrogation was not very serious because he
merely was warned not to participate in church activities. It makes sense that
Dong did not write in his asylum application about an incident in which nothing
happened other than being warned not to participate in church activities and
instead focused on the fact that he was beaten during a police interrogation.
Dong’s explanation that he focused on the more serious interrogation is
“‘reasonable and plausible,’” and the agency did not provide a reason for rejecting
it. Munyuh, 11 F.4th at 758 (quoting Rizk, 629 F.3d at 1088).
The majority essentially concedes that there was no inconsistency and so
relies on the following exchange to conclude that Dong’s explanation for not
writing about the initial interrogation was “internally inconsistent, and therefore,
implausible.” Maj. Op. at 9. This conclusion is not supported by the record.
Dong answered the IJ’s questions as follows:
5
Q: Sir, I’m wondering why in that [written] statement, you did not
mention that you were interrogated twice?
A: It might be because I forgot. . . .
Q: All right. So, sir, you forgot that you were interrogated twice?
A: I didn’t forget that I was interrogated two times. What I just
now want to say was that I in my statement, I just mentioned the
second time I was interrogated.
Q: But my question to you, sir, was why didn’t you mention that
you had been interrogated on two different occasions?
A: Because the second time when I was interrogated to my honest,
to my feeling, experience, it was much [more] serious so I just put it
down the second time.
There is no inconsistency in Dong’s answers. He explained that he forgot to write
about the first interrogation in his written statement because it was not that serious.
See Kumar, 18 F.4th at 1154 (“Being ‘beaten on [one’s] arms and legs’ is not
inconsistent with being ‘beaten all over [one’s] body.’ Nor are the accounts
conflicting simply because one recounting of a violent attack was more detailed
than the other.”).
Contrary to the majority’s conclusion, there was no “shifting explanation
from, ‘It might be because I forgot’ to, ‘I didn’t forget.’” Maj. Op. at 9.
Clearly, his first statement that he might have forgotten was a response to the
question of why he did not write about the initial interrogation: he forgot to write
6
about it in his application because the first interrogation was inconsequential
compared to the second one when he was beaten. His second statement that he
did not forget was in response to the IJ’s question whether he forgot that he had
been interrogated twice: he did not forget. These are not inconsistent statements
but answers to two different questions. To construe this as inconsistent is illogical
and twists the record in order to uphold a finding that, in fact, is not supported by
the record.
This case is unlike Silva-Pereira v. Lynch, 827 F.3d 1176 (9th Cir. 2016), in
which the petitioner testified about three violent incidents that he did not report in
his asylum application: (1) he was threatened at gunpoint; (2) police hit him with
a rifle, forcibly took his cell phone, and threatened his son at gunpoint; and (3)
police entered his house without a warrant, assaulted him, and frightened his
children. Id. at 1181. The petitioner there testified that the incidents “left him
with permanent injuries and provoked extreme psychological trauma in his
children.” Id. at 1186.
By contrast, Dong testified, but did not write, about an interrogation in
which nothing happened to him other than being warned not to participate in the
church. This is nothing like the three violent incidents in Silva-Pereira, which
were “‘pivotal events’ that were ‘crucial to establishing’ that Silva actually
7
suffered persecution.” Id. (quoting, first, Alvarez-Santos v. INS, 332 F.3d 1245,
1254 (9th Cir. 2003), then Kin v. Holder, 595 F.3d 1050, 1057 (9th Cir. 2010)).
Although the agency’s demeanor determination is entitled to deference, “an
IJ’s determination that a petitioner’s testimony is ‘evasive’ or ‘unresponsive’ may
be insufficient to support an adverse credibility finding.” Jibril v. Gonzales, 423
F.3d 1129, 1137 (9th Cir. 2005). The majority relies on Ling Huang v. Holder,
744 F.3d 1149 (9th Cir. 2014), but there the credibility determination was based on
the IJ’s observations about the petitioner’s demeanor throughout her entire
testimony, as well as the IJ’s finding that the testimony was “extremely
superficial” and not “persuasive or sufficiently specific to carry her burden of
proof,” and that the testimony was “not supported by reasonably obtainable
corroborating evidence.” Id. at 1155. Thus, the demeanor finding in Ling
Huang was quite unlike the situation here, where the demeanor finding was based
solely on Dong’s attempts to explain perceived inconsistencies that were not in fact
inconsistent.
II. Injuries and Medical Attention
The BIA further relied on Dong’s failure to mention his black and blue
marks in his written statement and purported inconsistences about whether the
police warned him not to seek medical attention. Neither of these findings of
8
inconsistency is supported by substantial evidence.
When asked if he was injured by the police beating, Dong replied, “a little
bit.” Counsel asked, “[w]hat injuries did you have,” and Dong stated, “[j]ust . . . a
black and blue on the front chest,” “[n]othing else.” It is evident from Dong’s
testimony that he did not consider his injuries to be significant, which explains his
failure to mention them in his written statement. Instead, his written statement
focused on the pertinent information that he was beaten, forced to agree to the
conditions of the guarantee letter, and thus had lost his religious freedom. Dong’s
explanation that he “felt it was not necessary” to include “excessive descriptions”
of the black and blue marks in the written statement is consistent with his
testimony that he did not consider his injuries to be that serious. 1 Cf.
Ruiz-Colmenares v. Garland, 25 F.4th 742, 750 (9th Cir. 2022) (relying in part on
the petitioner’s omission of details, “including that his eyebrow was allegedly
busted-open wide enough that he should have received stitches,” to affirm adverse
credibility finding). The agency did not provide a specific and cogent reason for
rejecting Dong’s reasonable explanation. Munyuh, 11 F.4th at 758.
1
Moreover, there is no inconsistency between Dong’s written statement
that he was punched and kicked, and his testimony that he subsequently had black
and blue marks on his chest.
9
The BIA also relied on purported inconsistencies in Dong’s testimony
regarding his decision not to seek medical attention. This finding is not supported
by substantial evidence because there was no inconsistency.
Dong testified that, after he was beaten, he asked the police if he could see a
doctor, but the police refused. The IJ then asked Dong a series of questions and
found his answers to these questions to be inconsistent:
Q: Why did you believe that you needed medical treatment?
A: Because I feel hurting so I need to see doctor.
Q: Did you seek medical attention after you were released?
A: No.
Q: Why not?
A: I was afraid.
Q: Afraid of what?
A: I was afraid of the police.
Q: Sir, why would you be afraid of the police in terms of it
preventing you from seeking medical treatment?
A: Because the police had said that I was not allow[ed] to see the
doctor, to see any doctor.
Q: So the police told you, sir, at some point during your detention
that you were never to see a doctor?
10
A: No.
Q: Well what did they tell you?
A: They stated that I was not supposed to say that I suffered a
beating by them.
Q: So they said not to tell anyone how you got your injuries.
They did not tell you that you couldn’t see a doctor. Is that correct?
A: But they said I was not supposed to see any doctor. I was not
allowed.
Q: Well, sir, that quite frankly to me does not make sense. . . .
They told you that you could not see a doctor or they told you that you
couldn’t tell anyone about how you got your injuries, which is it?
A: I was not allowed to say that I suffered a beating by them.
Q: So you could have gone to see a doctor after your release, is
that correct?
A: Right.
It is not inconsistent for Dong to testify that the police told him both not to
see a doctor and not to tell a doctor how he was injured. Clearly the police did not
want Dong to let a doctor know that they had beaten him, and telling him not to see
a doctor and not to tell a doctor how he was injured are consistent messages, both
of which would further that goal. As in Barseghyan, “[t]he government
manufactures a discrepancy by characterizing the factual situation as an ‘either/or’
situation.” Barseghyan, 39 F.4th at 1145. The IJ’s finding that Dong’s testimony
11
was inconsistent is not supported by substantial evidence.
The majority states that we must “give special deference to the IJ’s
determination that this aspect of Dong’s testimony was ‘less than candid.’” Maj.
Op. at 14. However, it is not clear what part of this testimony is “less than
candid.” Simply stating that it was not candid does not make it so. Dong’s
testimony is not inconsistent. To the contrary, it makes perfect sense.
This court explained in Shrestha that, “[a]lthough we don’t expect an
Immigration Judge to search for ways to sustain an alien’s testimony, neither do
we expect the judge to search for ways to undermine and belittle it.” Shrestha,
590 F.3d at 1040 (quoting Shah v. Att’y Gen. of U.S., 446 F.3d 429, 437 (3d
Cir.2006)). Dong’s testimony about his interrogation, injuries, and decision not to
seek medical attention was not inconsistent with his written statement, and the IJ
undermined his testimony by creating false inconsistencies.
III. Intentionally Vague
The BIA also relied on the IJ’s finding that Dong “intentionally provided
vague, generalized information in his written statement” in order for him to
embellish his claim through his testimony about the number of interrogations and
the black and blue marks. This finding not only is unsupported by the record but
is contradicted by the record because Dong’s testimony about the first interrogation
12
and the black and blue marks did not embellish his claim.
“In the context of credibility determinations, the principal danger we
associate with omissions are last-minute attempts to use new allegations to
artificially enhance claims of persecution. That danger is particularly acute where
newly introduced information contains allegations crucial to establishing the
applicant’s central claim.” Iman, 972 F.3d at 1068. Here, Dong’s testimony did
not contain new allegations crucial to establish his central claim, but details he did
not consider to be significant. For example, Dong’s testimony that he was injured
only “a little bit,” cannot be characterized as “embellish[ing]” his claim. Instead,
he was downplaying the significance of his injuries. The record thus clearly
shows that the omitted details did not embellish Dong’s claim but rather
diminished his claim because, by his own account, they were not that significant.
Nor can Dong’s written statement be characterized as vague and general.
To the contrary, he wrote in detail about his decision to become a Christian and his
arrest – all of which was consistent with his testimony. He also wrote in detail
about the police beating him when he refused to disclose church members’ names
and gathering sites and the conditions of the letter he was forced to sign, which
also was entirely consistent with his testimony. His written statement was not
vague – instead, it contained the significant details of his claim, and those details
13
were consistent with his in-court testimony.
As in Iman, “the omitted information was not inconsistent with the
statements in [Dong’s] asylum application . . . or any other evidence in the record.”
Id. “This is not a case where contradictory or even impeaching information came
out.” Lai, 773 F.3d at 974.
IV. Church Letters
Nor is the agency’s finding that Dong’s letters from his church do not
corroborate his faith supported by substantial evidence. The letters corroborated
Dong’s testimony about the name of the church, his participation in church
activities, and his testimony that the church did not have a pastor. It is not clear
what more the letters could possibly state in order to corroborate Dong’s faith.
V. Household Certificate
The only remaining basis for the adverse credibility finding is the household
notarial certificate, which indicated that Dong provided the original household
register to the notary on July 3, 2012, even though Dong was in the United States
at the time. Dong testified that his mother obtained the notarial certificate of the
copy of the household register for him, explaining that the original remained at his
parents’ home in China. He did not know why the certificate had his name on it
because his mother was the one who obtained it. Examining the totality of the
14
circumstances, this is not sufficient on its own to support the adverse credibility
finding. 2
VI. Conclusion
“An IJ may not ‘cherry pick solely facts favoring an adverse credibility
determination while ignoring facts that undermine that result.’” Munyuh, 11 F.4th
at 758 (quoting Shrestha, 590 F.3d at 1040)). Dong’s written statement and his
testimony are consistent regarding the details of his conversion to Christianity, his
arrest and detention, and the conditions of his release. His description of his
treatment is supported by the State Department report in the record. This court
has explained that “we must affirm credibility findings only when they are
supported by the ‘totality of the circumstances.’” Kumar, 18 F.4th at 1155
(quoting Alam, 11 F.4th at 1137). The totality of the circumstances here does not
support the adverse credibility finding.
Because, for the reasons stated above, I would grant the petition for review, I
respectfully dissent.
2
As the majority recognizes, the IJ found only that this document was
“potentially fraudulent.” Maj. Op. at 15. Neither the IJ, the BIA, nor the
majority adequately explains how a “potentially” fraudulent document, standing
alone, can constitute substantial evidence supporting an adverse credibility finding.
15