Wuzhen Xue v. Gonzales

MEMORANDUM ^**

Wuzhen Xue, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision, summarily affirming the Immigration Judge’s (“IJ”) order denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252.

Where, as here, the BIA affirms without an opinion, we review the IJ’s decision directly. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We review for substantial evidence, Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.2004), and we grant the petition for review and remand.

Substantial evidence does not support the IJ’s adverse credibility findings. The IJ’s finding that Xue’s testimony was non-responsive and vague is not supported by substantial evidence. See He v. Ashcroft, 328 F.3d 593, 598 (9th Cir.2003); see also Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir.1998). Likewise, substantial evidence does not support the IJ’s adverse credibility finding based upon an inconsistency regarding the cause of Xue’s third pregnancy. See He, 328 F.3d at 598.

Inconsistencies as to how Xue’s sister obtained medical records and how governmental authorities discovered the birth of Xue’s daughter were minor and did not go to the heart of Xue’s claim. See Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir.2000).

The IJ’s adverse credibility findings based upon Xue’s lack of fear of returning to China, her practice of Falun Gong in the United States, and her account of how she distributed Falun Gong materials are not supported by substantial evidence because the IJ relied upon impermissible speculation, see Ge, 367 F.3d at 1125, and because Xue’s testimony and asylum application were not inconsistent, see Shah v. INS, 220 F.3d 1062, 1068 (9th Cir.2000).

Accordingly, we grant the petition for review and remand the case to the BIA for farther proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.