Mei Huang v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
MAR 21 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEI YUEN HUANG, AKA Mei Yun No. 13-74143
Huang,
Agency No. A078-962-170
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2019
Pasadena, California
Before: KLEINFELD, GILMAN,** and NGUYEN, Circuit Judges.
We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for
review and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
During the immigration hearing, Mei Yuen Huang, the petitioner, initially
testified that her mother-in-law had given Huang’s name to local authorities three
days after being released from police custody. After the immigration judge
explained that her testimony conflicted with the public notice, Huang expressed
confusion and stated that she may have mixed up the dates. Huang later testified
that her mother-in-law first disclosed Huang’s name on July 6, 2009, consistent
with the public notice and other submitted evidence.
The Board of Immigration Appeals (the “Board”) affirmed the immigration
judge’s denial of asylum, withholding of removal, and relief under the Convention
Against Torture. The denial was based almost entirely on an adverse credibility
finding regarding Huang’s testimony about the events experienced by the mother-
in-law. The Board explained that the “chronology of events is central to [Huang’s]
asylum claim and should have been consistently presented.” The Board also held
that Huang failed to establish a well-founded fear of persecution “[f]or the reasons
discussed by the [i]mmigration [j]udge.” As a result, Huang could not meet the
“higher standard of proof” for withholding of removal. The Board also summarily
affirmed the denial of Convention relief because the “totality of the circumstances
d[id] not establish that the respondent would ‘more likely that not’ be tortured . . .
upon removal to China.” Because of the adverse credibility determination, the
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Board did not reach whether the alleged events in China supported any of the
potential grounds for relief.1
Denials of asylum, withholding of removal, and Convention relief are
reviewed for substantial evidence and will be upheld if “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Yali
Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (citation omitted).
“[F]actual findings, including adverse credibility determinations, [are reviewed]
for substantial evidence” and “are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” Id. (citation omitted).
Where, as here, the Board reviewed the immigration judge’s credibility-
based decision for clear error and “relie[d] upon the [immigration judge’s] opinion
as a statement of reasons,” the immigration judge’s oral decision may serve as a
“guide to what lay behind the [Board’s] conclusion.” Tekle v. Mukasey, 533 F.3d
1044, 1051 (9th Cir. 2008); see also Shrestha v. Holder, 590 F.3d 1034, 1039 (9th
Cir. 2010) (holding that an immigration judge’s oral decision may be reviewed
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Although Huang should have addressed her request for Convention relief
specifically and distinctly from her asylum and withholding of removal arguments,
we may consider the issue. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir.
1992) (“[W]e may review an issue if the failure to raise the issue properly did not
prejudice the defense of the opposing party.”). As the government concedes, the
Board’s and the immigration judge’s denials of Convention relief were largely
reliant on the adverse credibility determination.
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where the Board’s analysis, despite “independent review of the record,” is
“confined to a ‘simple statement of a conclusion’” (quoting Avetova-Elisseva v.
INS, 213 F.3d 1192, 1197 (9th Cir. 2000))). But review is limited to “the reasons
explicitly identified by the B[oard], and then [an] examin[ation] [of] the reasoning
articulated in the [immigration judge’s] oral decision in support of those reasons.”
Tekle, 533 F.3d at 1051.
Substantial evidence does not support the Board’s adverse credibility
finding. Huang’s change in testimony regarding the “chronology of events”
amounted to a “minor discrepanc[y] in dates” that we have “repeatedly” held
insufficient to support an adverse credibility determination. See, e.g., Ren v.
Holder, 648 F.3d 1079, 1084 (9th Cir. 2011). Although the REAL ID Act
eliminates the old “go to the heart of the claim” rule, the law remains that
inconsistencies must have some bearing on the petitioner’s veracity, such that the
adverse credibility determination is reasonable. Id. Here, the inconsistency is
entirely about the exact dates of events experienced by Huang’s mother-in-law
years earlier, not Huang, as told to Huang by her mother-in-law. Because this
inconsistency is the product of two levels of potentially faulty memory, it is even
less probative than that in Ren, amounting to no more than a “trivial
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inconsistenc[y]” that has no bearing on the petitioner’s veracity under the totality
of the circumstances. See id. at 1085–86.
The petition for review is granted and Huang’s applications for relief are all
remanded for such further consideration as is appropriate. See INS v. Ventura, 537
U.S. 12, 16–18 (2002); Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th Cir.
2009).
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