Desheng Liu v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DESHENG LIU, No. 16-72283
Petitioner, Agency No. A099-731-203
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 14, 2019
Pasadena, California
Before: GRABER and BERZON, Circuit Judges, and DONATO,** District Judge.
Desheng Liu, a native and citizen of China, petitions for review of a decision
by the Board of Immigration Appeals (BIA). The BIA dismissed Liu’s appeal from
an immigration judge’s (IJ’s) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
(CAT). We grant the petition in part and remand to the BIA for further
proceedings.
1. The BIA relied on the IJ’s finding that Liu’s claim of persecution and
torture on account of his possession of written materials criticizing the Chinese
Communist Party was not credible. The adverse credibility determination was not
supported by substantial evidence.
First, it was improper for the BIA to rely on minor omissions of details from
Liu’s asylum statement because the basic facts of his story—that he was found
with forbidden materials, arrested, beaten by the police, and subsequently
dismissed from his job—were adequately laid out in the statement. See Lai v.
Holder, 773 F.3d 966, 971 (9th Cir. 2014). Additionally, the IJ’s determination that
Liu’s statement did not mention that his colleagues were also arrested was clear
error, as the statement did mention that colleagues were arrested, although it did
not name them. See Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010).
Second, substantial evidence does not support the BIA’s reliance on
supposed inconsistencies between Liu’s testimony and the documentary evidence
he provided. That the hospital diagnosis certificate omitted some of the details Liu
testified about does not make the certificate inconsistent with Liu’s testimony. See
Singh v. Ashcroft, 301 F.3d 1109, 1112 (9th Cir. 2002). Moreover, Liu was not
asked on cross-examination why the certificate did not mention the CT scan. An
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inconsistency or omission cannot support an adverse credibility determination if
the petitioner is not asked to explain it. See Perez-Arceo v. Lynch, 821 F.3d 1178,
1184 (9th Cir. 2016). Additionally, the fact that Liu’s household register, dated
2007, still listed a hotel in China as his employer does not contradict Liu’s story
that he was fired from the hotel in 2005. Liu has been in the United States since
February 2006, so the register’s employment entry was obviously out of date, and
Liu provided an adequate explanation for why that was so.
Third, the BIA’s reliance on Liu’s ability to leave China, despite testifying
that the police had told him he could not leave the city of Yantai and should stay at
home, is insufficient to support the adverse credibility finding. As for the supposed
inconsistency in Liu’s story, Liu did not testify that he was under constant
surveillance, and he was not asked how he traveled from his home to the airport.
See Perez-Arceo, 821 F.3d at 1184. As for the country report, the “IJ may use a
country report as supplemental evidence to discredit a generalized statement made
by the petitioner but not to discredit specific testimony regarding his individual
experience.” Zheng v. Ashcroft, 397 F.3d 1139, 1143 (9th Cir. 2005) (internal
quotation marks omitted).
Finally, substantial evidence does not support the IJ’s concerns about the
authenticity of some of the documents that Liu provided because those concerns
were based on the IJ’s “bare personal view,” not on “evidence in the record.” Lin v.
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Gonzales, 434 F.3d 1158, 1163 (9th Cir. 2006). Additionally, the IJ erred in
concluding it was implausible that Liu was afraid to ask his wife to send him
documentation of other hospital visits because Liu never testified to that effect.
Instead, he said he did not want to ask his wife to write him a letter confirming the
sentence received by his colleague because he was concerned that such a letter
could be intercepted and could implicate his wife in harboring a criminal.
In sum, the adverse credibility determination was not supported by
substantial evidence.1 We therefore remand Liu’s asylum and CAT claims to the
BIA for further proceedings consistent with this opinion.
2. We lack jurisdiction over Liu’s claim for withholding of removal
because he did not raise that claim in his appeal to the BIA. See Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004).
Petition GRANTED in part, DISMISSED in part, and REMANDED.
1
“[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.” Lai, 773
F.3d at 970.
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FILED
NOV 25 2019
Liu v. Barr, No. 16-72283 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GRABER, Circuit Judge, concurring in part and dissenting in part:
I concur in Part 2 of the disposition, concerning withholding of removal, but
respectfully dissent from Part 1, concerning the adverse credibility finding. I
would deny the petition insofar as it is not dismissed.
If even one of the identified grounds underlying the adverse credibility
finding is supported by substantial evidence, we must accept that finding. 8 U.S.C.
§ 1252(b)(4)(B); Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010). Here are
several inconsistencies that, in my view, support the adverse credibility finding.
Petitioner claimed that he was fired from his position as a chef at a hotel in
2005, which was inconsistent with the household register. Moreover, Petitioner
still possesses his hotel work badge. The agency was not required to believe
Petitioner’s explanation for the discrepancies. Finding that the household register
is "obviously out of date" is a conclusion that requires believing Petitioner’s
explanation, which the agency was not required to do.
Petitioner testified that he did not disclose that he was hit with an ashtray
because he "thought" that the diagnosis certificate would "show that." But he also
testified that the police forced him to lie to the doctor and say that he hurt himself
in a fall. If that were true, and he told the doctor that he was injured in a fall,
Petitioner could not have thought that the certificate would show that he was hit
with an ashtray. Again, the agency did not have to believe Petitioner’s
explanation. And the omission in the certificate of a CAT scan is not, in my view,
a trivial omission.
Petitioner testified that he was not allowed to leave his home area and was
living under police restrictions. The IJ and BIA permissibly concluded that
Petitioner’s accounts of his travel within China, and from China, were inconsistent
with the stated restrictions. Petitioner gave an explanation (the local police did not
notify all the authorities), but the agency was not required to accept it. Petitioner’s
freedom to travel, inside and outside of China, conflicts with his testimony that he
was charged with a very serious political crime and charged a high bail because the
police thought that he was a flight risk.
Petitioner testified that he was afraid to have his wife send him a letter
confirming the sentence received by his colleague because he was concerned that
such a letter could be intercepted and could implicate his wife in harboring a
criminal. The agency was not required to accept that explanation, particularly in
light of the fact that Petitioner’s wife had previously sent several documents to
Petitioner in the United States. Presumably, interception of those documents could
have given rise to the implication that Petitioner’s wife was harboring a criminal.
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For those reasons, I would deny the petition in part and dismiss it in part.
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