Xingli Wang v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XINGLI WANG, No. 15-70508
Petitioner, Agency No. A095-022-735
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 14, 2019**
Pasadena, California
Before: WARDLAW, BYBEE, and MILLER, Circuit Judges.
Xingli Wang, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ)
denial of Wang’s application for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). We have jurisdiction pursuant to 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1252. We grant the petition for review and remand the case to the BIA.
1. The BIA’s adverse credibility determination cannot be meaningfully
reviewed because the administrative record is missing a large portion of the
hearing transcript, including testimony critical to the adverse credibility
determination. The BIA erred in concluding, “[T]he Immigration Judge provided a
detailed summary of the testimony in her decision, the respondent does not contest
the summary provided by the Immigration Judge, and we find the record sufficient
for our review.” To the contrary: Wang did contest the characterization of his
testimony in front of the BIA. He argued in his appeal brief to the BIA, “While the
Court was of the belief that he was attempting to buy time in delaying his
responses, there is nothing to suggest such was the case in respondent’s situation.”
Wang further argued that he “was somewhat confused with the numbers and
dates,” and the BIA instead found Wang “non-responsive” and “evasive.” Because
the BIA relied on the testimony that was not recorded in reaching that conclusion,
our inability to review the transcript prevents us from determining whether
substantial evidence supports the BIA’s conclusion. “While the substantial
evidence standard demands deference to the IJ, we 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 IJ is fatally flawed.” Gui v. I.N.S., 280 F.3d 1217, 1225
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(9th Cir. 2002) (internal quotation and alteration marks omitted). If Wang is
deemed credible, his claims may merit relief under Guo v. Sessions, 897 F.3d 1208
(9th Cir. 2018).
2. Even if we were to assume that the BIA’s credibility determination
was correct, the BIA committed legal error by basing the denial of CAT relief on
the adverse credibility finding alone and failing to consider other evidence like
country conditions reports. Kamalthas v. I.N.S., 251 F.3d 1279, 1283 (9th Cir.
2001).
PETITION GRANTED; REMANDED.
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FILED
Wang v. Barr, No. 15-70508 JUL 16 2019
MOLLY C. DWYER, CLERK
MILLER, Circuit Judge, dissenting: U.S. COURT OF APPEALS
The court has identified arguments that might have allowed Wang to prevail
if he had raised them before the Board of Immigration Appeals. But because Wang
failed to exhaust those claims by presenting them to the Board, we lack jurisdiction
to grant relief.
Congress has directed that “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). Here, the Immigration Judge found Wang to
be not credible, and the Board upheld that finding. The portion of the hearing
transcript available to us demonstrates that Wang gave evasive and contradictory
answers about the date of his wife’s retirement, and his testimony about when he
was fired from his job was inconsistent with the documentary evidence that he
submitted. The record supports the IJ’s assessment. It does not compel a finding
that Wang was credible.
Like my colleagues, I am troubled that only part of the hearing transcript is
available for our review, and I believe that the agency likely committed legal error
by failing to produce a complete transcript. Congress has required the agency to
maintain “a complete record . . . of all testimony and evidence produced at the
proceeding.” 8 U.S.C. § 1229a(b)(4)(C). And courts have noted that the failure to
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produce a complete transcript may amount to a violation of due process if it causes
prejudice to the petitioner. See, e.g., Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st
Cir. 2005); Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir. 1993). But whether
based on statutory or constitutional grounds, a claim of error arising from the
failure to maintain a transcript is no different from any other claim of procedural
error before the agency: a petitioner must present it to the Board before seeking
judicial review. See 8 U.S.C. § 1252(d)(1); Sola v. Holder, 720 F.3d 1134, 1135
(9th Cir. 2013) (per curiam); Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th Cir.
2001). Wang did not do so.
The exhaustion requirement makes good sense here. Had Wang complained
to the Board about the incompleteness of the transcript, the Board would have been
better positioned than we are to assess whether the deficiency caused any
prejudice—that is, whether it is reasonably likely “that a complete and accurate
transcript would have changed the outcome of the case.” Ortiz-Salas, 992 F.2d at
106. If the Board concluded that the incompleteness of the transcript was
prejudicial to Wang’s case, it could have ordered a rehearing, saving both the
government and Wang the months of delay occasioned by proceedings in this
court. But Wang did not raise the issue, and we lack jurisdiction to consider it.
To be sure, the Board recognized in a footnote that part of the transcript was
missing, and it stated that “we find the record sufficient for our review.” But that
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does not mean Wang preserved—or that the Board considered—any argument that
the incompleteness of the transcript might be a basis for a remand. Although Wang
took issue with the inferences the IJ drew from his testimony—for example, by
disputing the finding that he was “attempting to buy time in his responses”—Wang
did not suggest that the IJ had inaccurately summarized what he said. Indeed,
Wang’s brief to the Board did not even mention the incompleteness of the
transcript. The Board correctly recognized that Wang “does not contest the
summary provided by the Immigration Judge,” which is why it understandably
proceeded to review the case on the basis of that summary. In remanding to the
Board, the court grants Wang process that he chose to forgo.
Nor is a remand required for the Board to reevaluate Wang’s claim for relief
under the Convention Against Torture. In Kamalthas v. INS, 251 F.3d 1279 (9th
Cir. 2001), we held that the Board must consider probative evidence of country
conditions that bears on the likelihood that an applicant will be subject to torture if
returned to his home country. But Kamalthas does not require the agency to
address secondary evidence that is not relevant. Here, the country-conditions report
is not probative of anything specific to Wang. See Dhital v. Mukasey, 532 F.3d
1044, 1051 (9th Cir. 2008) (explaining that “the petitioner must demonstrate that
he would be subject to a ‘particularized threat of torture’” to obtain CAT relief)
(citation omitted). When there is an adverse credibility finding and a petitioner
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relies on secondary evidence to demonstrate eligibility for relief under the CAT,
the petitioner must show that “the State Department reports, standing alone,
compel the conclusion that petitioner is more likely than not to be tortured upon
return.” Konou v. Holder, 750 F.3d 1120, 1125 (9th Cir. 2014) (citation and
alterations omitted). Wang cannot satisfy that standard: although he claims that he
will be tortured because of his Christian faith, the record does not compel the
conclusion that he is a Christian, or that he has suffered torture, or that the Chinese
authorities have any interest in him that would create a particularized threat of
torture. Adding the country-conditions report does not tilt the scales. See
Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006) (“Although the reports
confirm that torture takes place in Yemen, they do not compel the conclusion that
Almaghzar would be tortured if returned. Therefore, we defer to the IJ and BIA’s
determination that relief under the CAT is unavailable.”).
In any event, whatever the merits of the country-conditions argument, it is
not properly before us because Wang did not mention the country-conditions report
in his brief to the Board. Indeed, he did not specifically argue for CAT relief at all.
He therefore failed to exhaust any claim based on the CAT. See Abebe v. Mukasey,
554 F.3d 1203, 1207-08 (9th Cir. 2009) (en banc). The Board can hardly be faulted
for not discussing a report that was never called to its attention.
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