Gangshui Zhang v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GANGSHUI ZHANG, No. 15-73367
Petitioner, Agency No. A205-175-832
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2023
Pasadena, California
Before: BYBEE, FISHER,** and DESAI, Circuit Judges.
Gangshui Zhang, a native and citizen of China, petitions for review of the
denial of his applications for asylum and withholding of removal by the Board of
Immigration Appeals (“BIA”). We have jurisdiction under 8 U.S.C. § 1252. We
grant Mr. Zhang’s petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the U.S.
Court of Appeals for the Third Circuit, sitting by designation.
The BIA affirmed the Immigration Judge’s (“IJ”) denial of asylum and
withholding of removal after concluding that the IJ made an adverse credibility
determination that was not clearly erroneous. We review the BIA’s adverse
credibility determination and the denial of asylum and withholding of removal for
substantial evidence. Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We
must uphold the agency determination unless the evidence compels a contrary
conclusion. Id. Pure legal issues are reviewed de novo. Rivera-Peraza v. Holder, 684
F.3d 906, 909 (9th Cir. 2012).
Substantial evidence does not support the BIA’s determination that the IJ
made an adverse credibility finding, as opposed to concluding that Mr. Zhang failed
to satisfy his burden of proof. But even if the IJ did make such a determination, the
BIA’s adverse credibility determination was not supported by substantial evidence.
1. Although the IJ used the term credibility in the decision, the IJ’s
analysis and conclusions address only whether Mr. Zhang proved he was entitled to
relief. The IJ also acknowledged Mr. Zhang’s explanations for each apparent
inconsistency. The IJ thus did not make an explicit adverse credibility determination.
See Perez-Arceo v. Lynch, 821 F.3d 1178, 1186 (9th Cir. 2016) (holding that an IJ
must identify specific, cogent reasons supporting an adverse credibility
determination). Because the IJ did not make an adverse credibility determination,
the BIA should have presumed Mr. Zhang was credible. See Garland v. Ming Dai,
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141 S. Ct. 1669, 1681 (2021) (holding the BIA must apply “a presumption of
credibility if the IJ did not make an explicit adverse credibility determination”).
2. Even if the IJ sufficiently stated an adverse credibility finding, in
affirming the decision, the BIA’s adverse credibility determination was not
supported by substantial evidence. The BIA affirmed the adverse credibility finding
based on two alleged inconsistencies in Mr. Zhang’s testimony. First, the BIA found
it was unclear when Mr. Zhang first went to a government office to seek help. But
Mr. Zhang provided a reasonable explanation for the alleged inconsistent dates—
that he simply misunderstood the question and whether he was asked about any
report to a government office or the formal act of petitioning for relief. The BIA did
not acknowledge his explanation or explain how the alleged inconsistency bore on
Mr. Zhang’s credibility. See Shrestha v. Holder, 590 F.3d 1034, 1044–45 (9th Cir.
2010) (explaining that an adverse credibility finding must “take into account the
totality of circumstances, and should recognize that the normal limits of human
understanding and memory may make some inconsistencies or lack of recall present
in any witness’s case”). Second, the BIA found that Mr. Zhang’s testimony about
his injury and necessary treatment was not supported by the documentary evidence.
But mere omission of corroborating evidence is not sufficient to uphold an adverse
credibility determination. Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014) (“It is
well established that ‘the mere omission of details is insufficient to uphold an
3 15-73367
adverse credibility finding.’” (quoting Singh v. Gonzales, 403 F.3d 1081, 1085 (9th
Cir. 2005))). Moreover, Mr. Zhang provided a reasonable explanation for why his
medical records documented only out-patient treatment. There is therefore no
inconsistency between Mr. Zhang’s oral testimony and his documentary evidence.
Thus, even if the IJ made an adverse credibility determination, it was not supported
by substantial evidence.
Because we grant Mr. Zhang’s petition based on the BIA’s erroneous reliance
on an adverse credibility determination, we do not reach Mr. Zhang’s due process
and ineffective assistance of counsel claims. However, on remand, it is appropriate
for the BIA to address those claims in the first instance.
The petition for review is GRANTED and REMANDED.
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