Bing Xu v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BING QUAN XU, No. 11-71626
Petitioner, Agency No. A098-466-734
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 May 14, 2014
Pasadena, California
Before: NOONAN, WARDLAW, and FISHER, Circuit Judges.
Bing Quan Xu, a native and citizen of the People’s Republic of China,
appeals the decision of the Board of Immigration Appeals (“BIA”) denying his
application for asylum based on the immigration judge’s (“IJ”) adverse credibility
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
determination. We have jurisdiction under 8 U.S.C. § 1252. We grant Xu’s
petition and remand it to the BIA for review.
Because Xu filed his application after May 11, 2005, Xu’s petition is
governed by the credibility and corroboration standards set forth in the REAL ID
Act of 2005. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). The
BIA’s factual findings are reviewed for substantial evidence, while questions of
law are reviewed de novo. Zhang v. Gonzales, 408 F.3d 1239, 1244 (9th Cir.
2005).
1. Our review “is limited to the BIA’s decision, except to the extent the IJ’s
opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.
2006) (internal quotation marks omitted). The BIA reviewed the IJ’s adverse
credibility determination for clear error and expressly adopted four of the findings
the IJ articulated in support of that determination. They include two purported
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inconsistencies between Xu’s asylum application and hearing testimony as well as
the implausibility of two aspects of Xu’s account.1
Considering the hearing transcript and Xu’s asylum application together, we
conclude that the BIA’s findings of inconsistency are not supported by substantial
evidence. Xu testified consistently about both how many times he called his wife,
and who he stayed with during his trip to China. To the extent that Xu’s testimony
appears confusing, it appears that language and translation problems were to
blame. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir. 2002)
(“[W]e have long recognized that difficulties in interpretation may result in
seeming inconsistencies, especially in cases . . . where there is a language
barrier.”). Furthermore, the purported inconsistencies concerning how many times
Xu called his wife and who he stayed with in China are trivial and “have no
bearing on [Xu’s] veracity.” Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011).
1
Even if we were not limited to the BIA’s decision and reviewed the IJ’s
finding that Xu failed to mention in his asylum application that he was knocked
unconscious, the adverse credibility determination would still not be supported by
substantial evidence. Xu stated in his asylum application that he “was hit on the
head very hard,” and the application’s “mere lack of detail” about the extent of his
injury “cannot serve as a basis for an adverse credibility finding.” Zamanov v.
Holder, 649 F.3d 969, 974 (9th Cir. 2011). Furthermore, the IJ’s disbelief that Xu
could be knocked unconscious for 20 to 30 minutes and not receive medical
treatment was impermissibly “based on speculation and conjecture.” Chawla v.
Holder, 599 F.3d 998, 1006 (9th Cir. 2010).
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The BIA also identified as implausible the high regularity of the Chinese
authorities’ visits to Xu’s home and Xu’s ability to return to China for 17 days
without incident. First, the BIA ignored parts of Xu’s testimony that clarified that
the police had visited his home with varying degrees of frequency, including
“sometimes no time[s] a week,” and found Xu’s account implausible without
pointing to any evidence in the record that contradicted his testimony, see
Shrestha, 590 F.3d at 1044. Second, there is no indication in the record that the
local police officially charged or convicted Xu of any crimes that would render
him “an individual of very high interest to Chinese authorities” and prevent his
entry or exit at the airport.
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 Xu gave when describing the protest and his arrest,
interrogation, and detention. As none of the BIA’s proffered reasons constitutes
substantial evidence supporting the adverse credibility determination, Xu’s
testimony shall be deemed credible on remand. See Soto-Olarte v. Holder, 555
F.3d 1089, 1094-95 (9th Cir. 2009).
2. Substantial evidence also does not support the BIA’s finding that Xu has
failed to demonstrate that the expression of his political opinion formed one central
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reason why the police harmed him, or that he failed to establish a nexus between
the harm he suffered and his political opinion. To the contrary, the record compels
the conclusion that the police imputed pro-labor and anti-government political
opinions to Xu, and that he was harmed because of those imputed beliefs. See Hu
v. Holder, 652 F.3d 1011, 1016-20 (9th Cir. 2011). The police arrested Xu outside
the municipal government building after identifying him as “the head” of the
workers’ protest. Xu was interrogated and accused of fighting against the Chinese
government and inciting workers to protest. As a consequence, he was beaten and
detained for two weeks. After his release, the police continued to warn Xu at his
weekly reporting sessions to “follow the government’s regulation[s],” and “not to
do anything against the government” or to “organize the workers.”
On these facts, as in Hu, we conclude that Xu has established the nexus
requirement and remand for the BIA to determine whether Xu’s past mistreatment
rises to the level of persecution such that his application for asylum may be
granted. See Hu, 652 F.3d at 1020.
Petition for review GRANTED and REMANDED.
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