Diguan Xuan v. Holder , 492 F. App'x 767 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DIGUAN XUAN, No. 07-74773
Petitioner, Agency No. A099-043-819
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 June 6, 2012
Pasadena, California
Before: B. FLETCHER, WARDLAW, and BYBEE, Circuit Judges.
Diguan Xuan, a 56-year-old native and citizen of China, petitions for review
of the Board of Immigration Appeals (“BIA”) denial of his claims for asylum,
withholding of removal, and protection under the Convention Against Torture
based on the Immigration Judge’s (“IJ”) adverse credibility determination. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand to the
BIA.
The BIA reviewed the IJ’s adverse credibility determination and expressly
adopted five of the findings the IJ articulated in support of that determination. See
Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (stating that we review the
BIA’s decision and any portion of the IJ’s decision that the BIA expressly adopts).
We review an adverse credibility determination for substantial evidence. Id.
Under the REAL ID Act, the IJ and BIA may base an adverse credibility
determination on any relevant factor relating to the petitioner’s veracity. Id. at
1044. Neither the IJ nor the BIA based the adverse credibility determination on the
petitioner’s candor or demeanor. Instead, the IJ and the BIA based the adverse
credibility determination on purported inconsistencies between Xuan’s asylum
application and hearing testimony, and omissions from the application.
The BIA’s adverse credibility determination is not supported by substantial
evidence. Considering the hearing transcript and Xuan’s asylum application
together, we conclude Xuan testified consistently in his asylum application about
both the traffic on the day of the demonstration and when he was handcuffed.
First, Xuan consistently testified that the taxi driver protest that he helped organize
impacted local traffic, during the protest, by attracting a large crowd of onlookers.
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Second, Xuan consistently testified that the police handcuffed him very soon after
arriving at the public safety bureau with other protest leaders, where Xuan and the
leaders thought they would be able to talk with municipal officials about their
grievances. To the extent Xuan’s testimony was confusing on this point, language
and translation problems contributed to the ambiguity.1
Turning to the omissions identified by the BIA, “we have held that a mere
lack of detail in the initial asylum application that the applicant later clarifies at the
immigration hearing cannot serve as a basis for an adverse credibility finding.”
Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011)(internal citations omitted).
Also, “[o]missions are not given much significance because applicants usually do
not speak English and are not represented by counsel” when they file asylum
applications. Kin v. Holder, 595 F.3d 1050, 1056 (9th Cir. 2010).
1
See Ren v. Holder, 648 F.3d 1079, 1088 n.7 (9th Cir. 2011); Kaur v.
Gonzales, 418 F.3d 1061, 1064–65 (9th Cir. 2005) (noting that where the petitioner
receives the assistance of a translator to aid in the preparation of the asylum
application, courts have heightened concern about adverse credibility findings
based on non-material or trivial details); He v. Ashcroft, 328 F.3d 593, 598 (9th
Cir. 2003) (noting that “faulty or unreliable translations can undermine evidence
on which an adverse credibility determination is based.”); Mendoza Manimbao v.
Ashcroft, 329 F.3d 655, 662 (9th Cir. 2003) (“[W]e have long recognized that
difficulties in interpretation may result in seeming inconsistencies, especially in
cases . . . where there is a language barrier.”).
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The three omissions from Xuan’s asylum application that the BIA relied
upon were mere details and are not relevant to credibility. Xuan’s omission of an
incident during the interrogation on the first day of his detention—the police
banged his head against the wall—is relevant but not more than a detail. Xuan
focused his claim for relief on the pain and injury caused by the police pulling and
yanking on his hair during interrogation, and on the seven-day duration of police
detention. For the same reason, Xuan’s omission of a nonviolent, brief
interrogation during his second day in detention is only minimally relevant. And
Xuan’s omission of the fact that the protest leaders talked to building security
guards at the protest site before the police arrived to disperse the crowd is
manifestly trivial.
Under the totality of the circumstances, the BIA’s adverse credibility
determination unreasonably relied upon details that are minor in comparison to the
consistent, credible testimony Xuan gave when describing the protest and his
arrest, interrogation, and detention. The record compels the conclusion that there
is neither a “pattern of clear and pervasive inconsistency or contradiction,” nor
“repeated and significant inconsistencies” in Xuan’s testimony that deprives his
claims of “the ring of truth.” Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.
2005).
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After making the adverse credibility determination, neither the IJ nor the
BIA considered the merits of Xuan’s claims for relief. On remand, the BIA shall
deem Xuan’s testimony credible. See Soto-Olarte v. Holder, 555 F.3d 1089, 1094–
95 (9th Cir. 2009) (“[T]he deemed credible rule may apply when it is evident that
the IJ and BIA have both strained to provide reasons properly supporting an
adverse credibility finding, but despite their best efforts have been unable to do
so.”). The BIA shall then decide, relying on his credible application and
testimony, whether Xuan is entitled to any relief.
PETITION GRANTED AND REMANDED TO THE BIA.
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