Ming Jin v. Eric H. Holder Jr. ( 2013 )

FILED
NOT FOR PUBLICATION MAR 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MING CHENG JIN, No. 08-73282
Petitioner, Agency No. A099-893-150
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2013
Pasadena, California
Before: PAEZ and WATFORD, Circuit Judges, and CONLON, Senior District
Judge.**
Ming Cheng Jin petitions this court for review of the BIA’s decision
affirming the Immigration Judge’s adverse credibility determination and denying
Jin asylum, withholding of removal, and relief under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Suzanne B. Conlon, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant
the petition.
Under the REAL ID Act, which applies to Jin’s application, credibility
determinations must be based on the “totality of the circumstances” and can be
based on inconsistencies even if they do not go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158 (b)(1)(B)(iii). An IJ must “provide specific and cogent
reasons supporting an adverse credibility determination.” Shrestha v. Holder, 590
F.3d 1034, 1042 (9th Cir. 2009). “Speculation and conjecture cannot form the
basis of an adverse credibility finding, which must instead be based on substantial
evidence.” Kaur v. Ashcroft, 379 F.3d 879, 887 (9th Cir. 2004) (internal quotation
marks and citation omitted); see also Ren v. Holder, 648 F.3d 1079, 1088 (9th Cir.
2011); Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir. 2006); Bandari v. INS,
227 F.3d 1160, 1167 (9th Cir. 2000).
Jin testified that he was persecuted by the Chinese government in retaliation
for aiding North Korean refugees in China. The IJ found Jin not credible because
the IJ concluded that it was implausible that Jin would have carried a medical
record—which was attached to his asylum application along with other personal
documents—“in his pocket” during his journey to the United States without any
particular purpose. This reason is based solely upon the IJ’s personal beliefs and
speculation about how and why Jin might have carried his medical records.
Moreover, Jin actually did provide an explanation for why he brought the record
with him. His trip to the United States occurred shortly after his April visit to the
clinic, therefore, he had his medical record and diagnosis from that visit with him
when he prepared to leave. The IJ’s speculation alone cannot support an adverse
credibility determination. See Kaur, 379 F.3d at 887-88 (holding that the IJ’s
beliefs that the Indian government would not issue a misspelled passport and the
petitioner would have learned the name of her smuggling agent during their
journey were speculative and insufficient to support an adverse credibility
determination); see also Bandari, 227 F.3d at 1166-67.
The BIA also relied on an apparent discrepancy between Jin’s testimony that
he did not have “any hospital records” and the fact that he had previously
submitted a medical record with his application. However, Jin stated only that he
could not obtain records relating to a particular incident in January 2006, not that
he lacked access to his medical records more generally. The record Jin did submit
was dated April 2006, and he explained that it was for treatment following a
different beating to which he had been subjected. Neither the IJ nor BIA ever
questioned this explanation. Thus, the BIA could not have reasonably found a
discrepancy between Jin's testimony that he could not obtain records relating to
one incident and the fact that he had submitted a record relating to a different
incident. See Shrestha, 590 F.3d at 1044.
We conclude that substantial evidence does not support the IJ’s adverse
credibility finding, which was adopted by the BIA. However, there may be reliable
reasons in the record for finding Jin not credible. Therefore, we grant Jin’s petition
and remand to the BIA for consideration of his application for asylum, withholding
of removal, and CAT relief without requiring the BIA to deem Jin’s testimony
credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th Cir. 2009).
Petition GRANTED and REMANDED.