Wenqin Xue v. Eric Holder, Jr. , 539 F. App'x 786 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 29 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WENQIN XUE, AKA Wen Qin Xue, No. 11-73910
Petitioner, Agency No. A098-445-354
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 13, 2013**
San Francisco, California
Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.
Wenqin Xue (“Xue”), a native and citizen of the People’s Republic of China,
petitions for review of the decision by the Board of Immigration Appeals (“BIA”)
affirming the Immigration Judge’s (“IJ”) denial of asylum, withholding of
removal, and relief under the Convention Against Torture. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pursuant to 8 U.S.C. § 1252. We deny in part, grant in part, and remand the
petition.
Xue states that she was the victim of forced sterilization in 1993 at the hands
of Chinese family planning officials and that she was arrested and beaten in 2004
because of her attendance at a local Christian meeting. Although the BIA reviewed
the IJ’s decision for clear error, it did not adopt the IJ’s decision as its own.
Instead, the BIA identified several specific grounds on which it affirmed the IJ’s
adverse credibility determination as to each of Xue’s two claims. We review the
reasons explicitly identified by the BIA, as well as the reasoning articulated in the
IJ’s decision in support of those stated reasons; we do not, however, “review those
parts of the IJ’s adverse credibility finding that the BIA did not identify as ‘most
significant’ and did not otherwise mention.” Tekle v. Mukasey, 533 F.3d 1044,
1051 (9th Cir. 2008).
Because credibility determinations are findings of fact, they “are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). Xue filed her petition before the
effective date of the Real ID Act of 2005, so at least one of the identified grounds
underlying the negative credibility finding must be supported by substantial
evidence and go to the heart of Xue’s claims of persecution in order to affirm a
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negative credibility finding. Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).
Minor inconsistencies regarding non-material and trivial details cannot form the
exclusive basis for an adverse credibility determination. See Kaur v. Gonzales,
418 F.3d 1061, 1064 (9th Cir. 2005). Instead, the BIA must articulate a legitimate
basis to question the applicant’s credibility and offer specific and cogent reasons
for any stated disbelief. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002).
With regard to Xue’s religious persecution claim, the BIA identified several
inconsistencies noted by the IJ that go to the heart of that claim, including
contradictory statements by Xue about the number of times she was interrogated
and beaten while detained and whether she was interrogated and beaten after being
released. Xue had opportunities to explain these inconsistencies, but the IJ and the
BIA reasonably found the explanations insufficient and unconvincing. See
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999).
With regard to Xue’s forced sterilization claim, the BIA identified only one
inconsistency: the date on Xue’s marriage certificate differs from the marriage date
written on the Fuqing City Family Planning Office form documenting her tubal
ligation conducted as a result of violations of family planning policy. It is
undisputed that Xue has two children, in violation of China’s family planning
policies. Xue also introduced corroborating evidence in the form of a doctor’s
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examination in the United States confirming that she had undergone a tubal
ligation. The inconsistency in the marriage dates does not go to the heart of Xue’s
forced sterilization claim, and the BIA’s reliance on it is therefore insufficient to
support its adverse credibility finding. Bandari v. INS, 227 F.3d 1160, 1166 (9th
Cir. 2000) (holding that “alleged inconsistencies in dates that reveal nothing about
a petitioner’s credibility cannot form the basis of an adverse credibility finding”).
Xue’s petition is therefore denied as to her religious persecution claim and
granted as to her forced sterilization claim. Because the BIA affirmed based on the
adverse credibility grounds without otherwise considering Xue’s eligibility for
asylum, we remand to the agency for further proceedings consistent with this
disposition. See Tekle, 533 F.3d at 1056.
PETITION FOR REVIEW DENIED in part; GRANTED in part; and
REMANDED. Each party shall pay its own costs on appeal.
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