FILED
NOT FOR PUBLICATION NOV 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WEIJIE JIANG, No. 08-72767
Petitioner, Agency No. A096-071-283
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 August 6, 2010
Seattle, Washington
Before: CANBY, NOONAN and BERZON, Circuit Judges.
Weijie Jiang, a citizen of China, petitions for review of an order of the Board
of Immigration Appeals (“BIA”) dismissing his appeal from an immigration
judge’s (“IJ”) denial of his application for asylum, withholding of removal, and
relief under the Convention Against Torture. We have jurisdiction pursuant to 8
U.S.C. § 1292, and we grant the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The IJ and the BIA denied Jiang’s claims for relief from removal on the
ground that he lacked credibility. We conclude that the IJ’s and the BIA’s adverse
credibility findings were not supported by substantial evidence. See Singh v.
Ashcroft, 362 F.3d 1164, 1168 (9th Cir. 2004) (requiring this court to review
adverse credibility determinations for substantial evidence).
In dismissing Jiang’s appeal, the BIA relied on the IJ’s finding that Jiang
was unresponsive in answering questions about whether the Chinese police were
still looking for him. Having independently reviewed the record, we conclude that
no reasonable factfinder could find that Jiang was unresponsive during this part of
his testimony. See Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007). Jiang
ultimately provided answers to those questions, and any lack of clarity in his
answers was attributable to translation difficulties. See Jibril v. Gonzales, 423 F.3d
1129, 1134-35 (9th Cir. 2005).1
1
In concluding that Jiang lacked credibility, the IJ cited one other instance of
unresponsive testimony. However, because the BIA singled out one instance of
unresponsive testimony, but gave no indication that it considered the second
instance significant, we will not consider the second instance of supposedly
unresponsive testimony in determining whether the adverse credibility finding was
supported by substantial evidence. See Tekle v. Mukasey, 533 F.3d 1044, 1051
(9th Cir. 2008) (“[W]e review . . . the reasons explicitly identified by the BIA,
[not] those parts of the IJ’s adverse credibility finding that the BIA did not identify
as ‘most significant’ and did not otherwise mention.”).
2
The IJ and the BIA also relied on a report prepared by the Department of
Homeland Security (“DHS”) Forensic Document Laboratory (“FDL”), which
expressed doubts about the authenticity of two corroborating documents that Jiang
had submitted into the record. Even where an FDL Report conclusively determines
that a document is fraudulent, however, that determination alone cannot support an
adverse credibility finding where there is no finding that the petitioner knew or
should have known that the document was fraudulent. See Yeimane-Berhe v.
Ashcroft, 393 F.3d 907, 911-12 (9th Cir. 2004). Here, the FDL itself was unable to
determine whether the documents at issue were fraudulent, and neither the IJ nor
the DHS attempted to determine whether Jiang knew or had reason to know that
the documents possibly lacked authenticity. See Soto-Olarte v. Holder, 555 F.3d
1089, 1092 (9th Cir. 2009) (holding that an IJ may not make an adverse credibility
finding on the basis of inconsistencies between the petitioner’s testimony and
documentary evidence, where the IJ “did not ask [the petitioner] about these
discrepancies or give him an opportunity to reconcile them”). As in Yeimane-
Berhe, the record here does not otherwise indicate that Jiang lacked credibility.
Jiang’s testimony was responsive, “specific[,] and detailed,” and “was not only
internally consistent, but comported with [his] asylum application.” Yeimane-
Berhe, 393 F.3d at 912 (internal quotation marks omitted).
3
We therefore grant Jiang’s petition for review and remand his case for a new
credibility determination that takes into account whether the documents at issue
lacked authenticity and, if so, whether Jiang knew or should have known that the
documents were not authentic. See Soto-Olarte, 555 F.3d at 1095-96.
PETITION FOR REVIEW GRANTED; VACATED AND
REMANDED.
4