Meihua Huang v. Mukasey , 520 F.3d 1006 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEIHUA HUANG; MINGYAN QIU,  No. 04-73309
Petitioners,
Agency Nos.
v.
 A95-875-283
MICHAEL B. MUKASEY, Attorney A95-875-284
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 7, 2008*
Pasadena, California
Filed March 24, 2008
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
William A. Fletcher, Circuit Judges.
Per Curiam Opinion
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
2875
HUANG v. MUKASEY 2877
COUNSEL
Danning Jiang, Fremont, California, for the petitioners.
Roger W. Wenthe, Assistant United States Attorney, Las
Vegas, Nevada, for the respondent.
OPINION
PER CURIAM:
Meihua Huang and his wife, Mingyan Qiu, natives and citi-
zens of China, petition for review of a Board of Immigration
Appeals (“BIA”) order. The order dismissed their appeal from
an Immigration Judge’s (“IJ”) decision denying their applica-
tion for asylum, withholding of removal, and relief under the
Convention Against Torture. We grant the petition for review
in part, dismiss in part, and remand for further proceedings
consistent with this opinion.
[1] In an oral decision, the IJ denied relief because “[b]ased
on the numerous, significant inconsistencies in [Huang]’s rep-
resentations of record, the Court reluctantly concludes that he
has failed to discharge his burden of proving past persecution
2878 HUANG v. MUKASEY
based on religion or a well-founded fear of the same.” The IJ
conflated what he may have intended as an adverse credibility
finding based on “numerous, significant inconsistencies” with
a finding that Huang and Qiu failed to prove past or a well-
founded fear of future persecution. However, the IJ never
stated that he did not believe Huang’s testimony or that a spe-
cific claim was not credible. We conclude that the IJ failed to
make a credibility finding. See Mendoza Manimbao v. Ash-
croft, 329 F.3d 655, 658-59 (9th Cir. 2003) (“When the IJ
makes implicit credibility observations in passing . . . this
does not constitute a credibility finding.”).
Instances where the IJ conflates an adverse credibility find-
ing with an adverse decision on the merits appear before this
court with increasing frequency. In Hartooni v. INS, 21 F.3d
336 (9th Cir. 1994), we remanded to the BIA a case in which
the IJ had failed to make an explicit credibility finding. Id. at
342-43. The IJ did not make clear whether his decision was
based on a finding against petitioner’s credibility or a deter-
mination that the petitioner failed to prove persecution. Id.
The BIA then “compounded” the error when its decision
relied on the IJ’s nonexistent credibility finding. Id.
[2] In the case at bar, the BIA adopted and affirmed the IJ’s
decision, citing Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994). Under Burbano, the BIA may adopt and affirm
the IJ’s decision in its entirety, or only in part, when it agrees
with the IJ’s reasoning and result. Id. The BIA stated that
“[i]n our review, we agree with the Immigration Judge that
[Huang] is not a credible witness,” and then denied relief
based on an adverse credibility finding, without addressing
the IJ’s finding that Huang and Qiu failed to meet their bur-
den of proving persecution. The BIA should not have
approved the IJ’s “finding” because the IJ made none. The
BIA should have addressed the IJ’s finding that Huang and
Qiu failed to prove past or a well-founded fear of future per-
secution, or it could have remanded the case to the IJ for a
credibility finding.
HUANG v. MUKASEY 2879
[3] Guided by the Supreme Court’s decision in INS v.
Orlando Ventura, 537 U.S. 12 (2002) (per curiam), we will
not address an IJ’s finding “without giving the BIA the oppor-
tunity to address the matter in the first instance in light of its
own expertise.” Id. at 17. When the BIA has not yet consid-
ered an issue, “the proper course . . . is to remand to the
agency for additional investigation or explanation.” Id. at 16
(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985)). In these circumstances, we must remand so that the
agency may consider, on review, the IJ’s finding that Huang
and Qiu failed to prove past or a well-founded fear of future
persecution. The BIA may choose to remand the case to the
IJ for a credibility finding.
[4] We dismiss Huang and Qiu’s claims that incompetent
translation and denial of an opportunity to testify at the depor-
tation hearing violated their due process rights because these
claims were not exhausted before the BIA. See Barron v. Ash-
croft, 358 F.3d 674, 677-78 (9th Cir. 2004) (explaining that
due process claims, procedural in nature, must be exhausted).
PETITION GRANTED in part; DISMISSED in part;
REMANDED. Neither party to recover costs in this appeal.