Argued and Submitted, Pasadena, California: May 13,
[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A099-447-649.
The panel granted a petition for review of the Board of Immigration Appeals' denial of asylum, withholding of removal, and protection under the Convention Against Torture.
The panel held that substantial evidence did not support the Board's adverse credibility determination. The panel explained that the Board's credibility determination was flawed where it relied on petitioner's omission until cross-examination of details concerning third parties, which were not contradictory to his earlier testimony or application materials, and held that the Board erred by rejecting petitioner's explanation for failing to amend or add this information to his asylum application at the outset of his merits hearing.
Thomas J. Tarigo, Los Angeles, California, for Petitioner.
Tony West, Assistant Attorney General, Terri J. Scadron, Assistant Director, Siu P. Wong and Timothy Hayes (argued), Trial Attorneys, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.
Before: Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges, and Kent J. Dawson, District Judge. The Honorable Kent J. Dawson, United States District Judge for the District of Nevada, sitting by designation.[*]
FISHER, Circuit Judge:
Yongguo Lai, a native and citizen of China, petitions for review of a decision by the Board of Immigration Appeals (BIA). The BIA dismissed Lai's appeal from an immigration judge's (IJ) decision denying his application for asylum, withholding of removal and protection under the Convention Against Torture (CAT). The BIA relied on the IJ's finding that Lai's claim of persecution and torture on account of his Christian religion was not credible. The IJ based her adverse credibility ruling, in relevant part, on Lai's testimony during cross-examination that contained information the IJ found to be missing from and inconsistent with Lai's initial written application and direct testimony, and uncorroborated in one respect. We hold that the BIA's adverse credibility determination is not supported by substantial evidence. Accordingly, we grant the petition and remand to the BIA for further proceedings.
In a written statement included with his initial application, Lai explained that he started practicing Christianity a few years after he lost his job as a factory worker in Fushun, China. He began going to church with his wife, and was baptized on December 24, 2004. According to Lai's statement, on July 17, 2005, police searched and detained Lai as he arrived at a gathering place in a suburb of Fushun to listen to a Korean preacher. Lai and other church members were taken to a police station, where Lai was beaten and interrogated twice. Lai's wife paid for him to be released after 10 days, at which time the police told Lai that he could not mention his detention to anyone and that he could no longer participate in such " illegal gatherings." Lai also had to regularly report to the police station after his release. In his statement, Lai also wrote that his wife told him the police had come to their home in China looking for him several times after he arrived in the United States.
Lai left China for the United States in November 2005. He then applied for asylum, withholding of removal and protection under CAT, claiming persecution on account of his religion. Lai testified before
the IJ in August 2008, and his direct testimony, in large part, reiterated his initial written statement. However, during cross-examination by the government's attorney and questioning by the IJ, Lai revealed information not included in his written statement -- or in his direct testimony. First, Lai said that after arriving in the United States he called a fellow church member in China, Yan Li, who told him that she had been detained for more than six months. Second, Lai said that his wife had recently been arrested. Lai further explained that his wife was forced to sign a paper promising that she would tell the Chinese government if she received any information about Lai's whereabouts, and that she now had to visit the police station on a weekly basis. Third, Lai told the IJ that all of his fellow practitioners were arrested or persecuted after he came to the United States.
The IJ denied all three of Lai's claims for relief. The IJ found that Lai's testimony was not credible, citing: (1) Lai's failure to include " key events" mentioned during cross-examination in his written statement or direct testimony; (2) Lai's ability to leave China without problems, when the country conditions report indicated that illegal religious activities ordinarily would have been a basis for denying exit authority; and (3) evidence demonstrating that Lai was " at best a Christian of convenience." The BIA dismissed Lai's appeal, finding no clear error in the IJ's adverse credibility determination and citing Lai's failure to mention his wife's arrest and Li's detention in his written application. The BIA also noted Lai's failure to provide corroborating evidence from his wife about her recent experiences.
A. Standard Of Review
" We review factual findings, including adverse credibility determinations, for substantial evidence." Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). Where, as here, the BIA reviewed the IJ's credibility-based decision for clear error and " relied upon the IJ's opinion as a statement of reasons" but " did not merely provide a boilerplate opinion," we " look to the IJ's oral decision as a guide to what lay behind the BIA's conclusion." Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (alterations and internal quotation marks omitted). " In so doing, we review here the reasons explicitly identified by the BIA, and then examine the reasoning articulated in the IJ's oral decision in support of those reasons." Id. " Stated differently, we do not review those parts of the IJ's adverse credibility finding that the BIA did not identify as 'most significant' and did not otherwise mention." Id.
B. Substantial Evidence Does Not Support The Adverse Credibility Finding
Lai contends that substantial evidence does not support the BIA's adverse credibility determination. We agree.
In a post-REAL ID Act case, an IJ making a credibility finding " consider[s] the totality of the circumstances, and all relevant factors," and may base the determination on:
the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering ...