Gui Dong v. Eric H. Holder Jr. , 569 F. App'x 507 ( 2014 )


Menu:
  •                                                                            FILED
    NOT FOR PUBLICATION                            APR 15 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    GUI HUA DONG,                                    No. 08-73489, 10-70006
    Petitioner,                        Agency No. A096-191-828
    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 December 3, 2013
    Pasadena, California
    Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.
    In these consolidated petitions for review, Gui Hua Dong, a native and
    citizen of China, petitions for review of the orders of the Board of Immigration
    Appeals (“BIA”) denying her untimely motion to reopen (Petition No. 10-70006),
    and dismissing her appeal from an Immigration Judge’s (“IJ”) decision denying her
    application for asylum, withholding of removal, and protection under the
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Convention Against Torture (“CAT”) (Petition No. 08-73489). We deny Dong’s
    petition for review as to her untimely motion to reopen, and we grant Dong’s
    petition for review as to the BIA’s denial of asylum, withholding of removal, and
    CAT relief.
    I. Motion to Reopen Petition (No. 10-70006)
    On appeal to this court, Dong neglected to challenge the BIA’s
    determination that she failed to submit evidence of changed country conditions in
    China in her untimely motion to reopen. This issue is therefore waived and this
    petition for review is denied. See Martinez-Serrano v. INS, 
    94 F.3d 1256
    , 1259-60
    (9th Cir. 1996).
    II. Merits Petition (No. 08-73489)
    Dong also petitions for review of the BIA’s decision dismissing her appeal
    from the IJ’s denial of asylum, withholding of removal, and CAT relief. “We
    review . . . adverse credibility finding[s] under the substantial evidence standard.”
    Gui v. INS, 
    280 F.3d 1217
    , 1225 (9th Cir. 2002). We conclude that substantial
    evidence does not support the BIA’s adverse credibility determination in this pre-
    REAL ID Act case.
    1. The BIA’s determination that Dong’s Falun Gong claim was not credible
    is not supported by substantial evidence. First, although Dong did not mention in
    2
    her asylum declaration that she was beaten while in detention during her first
    arrest, “the mere omission of details is insufficient to uphold an adverse credibility
    finding.” Bandari v. INS, 
    227 F.3d 1160
    , 1167 (9th Cir. 2000). Moreover, the
    BIA and IJ put themselves in Dong’s shoes and determined what they thought
    someone in Dong’s situation would include in her asylum application. That is
    prohibited. 
    Id. (“[T]he IJ’s
    subjective view of what a persecuted person would
    include in [her] asylum application has no place in an adverse credibility
    determination.”).
    Second, the IJ’s remaining adverse credibility findings as to Dong’s Falun
    Gong claim were not specifically relied on by the BIA. In any event, none were
    supported by substantial evidence. The IJ’s finding that Dong did not mention the
    second arrest on direct examination when her counsel asked her if there was
    anything else that she wanted to add was based on a misstatement of the record;
    she was never asked about or given an opportunity to talk about the second arrest
    during her direct examination. See Mutuku v. Holder, 
    600 F.3d 1210
    , 1213 (9th
    Cir. 2010) (where an adverse credibility determination is based on a clearly
    erroneous factual finding, it will not be upheld).
    That Dong at first testified that she was arrested on September 4, 1999
    before she corrected herself, saying she made a mistake because she was nervous,
    3
    and then testified that she was arrested on September 8, 1999, and that she also
    misspoke about the date she started practicing with Shunzi Li at her home before
    correcting herself were trivial inconsistencies in dates, made a number of years
    after the events in question occurred. See Rizk v. Holder, 
    629 F.3d 1083
    , 1088 (9th
    Cir. 2011) (“[M]inor inconsistencies regarding non-material and trivial details,
    such as . . . inconsistencies in specific dates and times that lack a close nexus to the
    petitioner’s asserted grounds of persecution, cannot form the exclusive basis for an
    adverse credibility determination.”).
    That Dong testified that sixteen people were arrested at the same time she
    was arrested for the second time was not actually inconsistent with her written
    statement, which said “about 20” people, not exactly that number, as the IJ
    asserted; further, any possible discrepancy between sixteen and approximately
    twenty is minor.
    That Dong testified at first that she was interrogated twice during her first
    arrest and then clarified that she was interrogated twice in the interrogation room
    and once in the detention room was a minor inconsistency. Further, that she said in
    her written statement that she was interrogated three times without making a
    distinction in locations is a mere omission of details, not an inconsistency. See
    Garrovillas v. INS, 
    156 F.3d 1010
    , 1014 (9th Cir. 1998) (“[I]nconsistencies of less
    4
    than substantial importance for which a plausible explanation is offered” cannot
    serve as the sole basis for a negative credibility finding); 
    Bandari, 227 F.3d at 1167
    .
    Any inconsistency regarding her passports did not go to the heart of her
    asylum claim.
    2. The BIA’s determination that Dong’s forced abortion claim was not
    credible is also not supported by substantial evidence. The BIA gave four reasons
    for disbelieving Dong. The first was Dong’s alleged inconsistent testimony
    regarding the date that Chinese family planning officials discovered Dong was
    pregnant. Yet, even if Dong’s testimony was inconsistent in this respect, it is a
    minor inconsistency that does not support an adverse credibility finding. See
    Vilorio-Lopez v. INS, 
    852 F.2d 1137
    , 1142 (9th Cir. 1988) (a minor inconsistency
    that “reveal[s] nothing about an asylum applicant’s fear for [her] safety [is] not an
    adequate basis for an adverse credibility finding”).
    Second, the BIA found it was “implausible” that officials would allow Dong
    to delay the abortion for three months after telling her “that an abortion was
    required right away.” The record reveals, however, that Dong was told
    immediately, at the physical exam, that she would have to have the abortion, not
    that she was required to have the abortion immediately. Dong’s subsequent
    5
    testimony confirms this reading of the record. Dong testified: “[T]hey told me to
    go [to] family planning classes for one month, and then told me to do the
    abortion.” An erroneous factual finding based on a misreading of the record does
    not constitute substantial evidence to support an adverse credibility determination.
    See 
    Mutuku, 600 F.3d at 1213
    .
    Moreover, the BIA’s determination that it was “implausible” and
    “unreasonable” for family planning officials to allow Dong’s pregnancy to
    progress while they waited for her voluntarily to undergo an abortion, especially
    since she “would have been vulnerable to enforcement of a forcible abortion at any
    time,” is at odds with the 2005 Country Report on China in the record. The
    country report affirms Dong’s testimony that social and economic pressure to
    adhere to the one-child policy are common, and that women are visited by family
    planning officials and reminded of their potential liabilities should they continue an
    unauthorized pregnancy. See 2005 U.S. State Department Country Report on
    Human Rights Practices in China. The country report thus supports Dong’s
    testimony that officials coerced and pressured her to have an abortion, but did not
    immediately subject her to a forced abortion. The BIA’s determination, therefore,
    cannot be upheld because it is based on mere speculation and conjecture that
    family planning officials would not allow Dong to voluntarily undergo the
    6
    abortion. See Shah v. INS, 
    220 F.3d 1062
    , 1071 (9th Cir. 2000) (“We cannot
    uphold an adverse credibility finding that rests on conjecture and speculation.”).
    The third reason the BIA gave for finding Dong incredible was the alleged
    contradictory statement in her testimony that “she was ‘hiding’ at either her
    cousin’s or father’s home while she was also attending the family planning
    classes.” The record does not support this finding. Dong did not testify that she
    was hiding at the same time as she was going to family planning classes. Instead,
    she testified that (1) she went to family planning classes for a month; (2) she then
    went into hiding; (3) she was later found and taken back home where she resumed
    family planning classes for a week; and, finally, (4) the family planning committee
    director forcibly took her from her class to the hospital for the abortion. An
    erroneous factual finding does not support an adverse credibility determination.
    See 
    Mutuku, 600 F.3d at 1213
    .
    Finally, the BIA found unpersuasive Dong’s statement that as long as she
    was not visibly pregnant, the family planning officials “were not insistent on
    seeing proof that her abortion had been completed.” The BIA misinterpreted
    Dong’s testimony and failed to address Dong’s reasonable explanation that she
    postponed the abortion by telling the officials she would get the abortion the
    following week. Although the family planning officials knew Dong was pregnant,
    7
    she testified that they did not force her to terminate her pregnancy because she told
    them she would do it on her own. Again, this is supported by the country report.
    Thus, the BIA’s speculation and conjecture about what it believes the family
    planning officials would have done does not support an adverse credibility finding.
    See 
    Shah, 220 F.3d at 1071
    .
    Because the BIA’s findings are not supported by substantial evidence,
    Dong’s testimony must be accepted as credible. See Kaur v. Ashcroft, 
    379 F.3d 876
    , 890 (9th Cir. 2004). Dong is therefore statutorily eligible for asylum based on
    her credible forced abortion claim. See Ding v. Ashcroft, 
    387 F.3d 1131
    , 1140 (9th
    Cir. 2004) (“[I]f an applicant is believed to have suffered forced abortion or
    sterilization, the applicant is necessarily eligible for asylum under the BIA’s
    interpretation of the INA because such a person is automatically classified as a
    refugee under 8 U.S.C. § 1101(a)(42)(B).” (internal quotation marks omitted)).
    Accordingly, we grant the petition for review, and remand to the BIA, which shall,
    on behalf of the Attorney General, exercise discretion regarding whether to grant
    asylum based on Dong’s forced abortion claim. See 
    id. We remand
    for further
    proceedings as to whether Dong is eligible for withholding of removal and CAT
    relief based on either her Falun Gong or forced abortion claims. See INS v.
    Ventura, 
    537 U.S. 12
    , 16-18 (2002) (per curiam).
    8
    CONCLUSION
    Dong’s petition for review of the BIA’s denial of her motion to reopen
    (No. 10-70006) is DENIED. Dong’s petition for review of the BIA’s dismissal of
    her appeal from the IJ’s denial of her application for asylum, withholding of
    removal, and protection under CAT (No. 08-73489) is GRANTED, and
    REMANDED.
    Each party shall bear its own costs on appeal.
    9
    FILED
    Dong v. Holder, Nos. 08-73489, 10-70006                                   APR 15 2014
    MOLLY C. DWYER, CLERK
    CHRISTEN, Circuit Judge, dissenting:                                    U.S. COURT OF APPEALS
    I respectfully dissent because, in my view, the record on appeal does not
    compel a contrary conclusion regarding the BIA’s adverse credibility
    determinations.