FILED
NOT FOR PUBLICATION NOV 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAO TIAN ZHOU, No. 10-72970
Petitioner, Agency No. A098-463-397
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 October 10, 2013
Honolulu, Hawaii
Before: KOZINSKI, Chief Judge, FISHER and WATFORD, Circuit Judges.
1. Three of the alleged discrepancies the IJ pointed to weren’t discrepancies
at all. The IJ found that Zhou’s failure to testify about the ambushed meeting in
the woods and his abuse by police in the lead-up to his arrest showed that he
wasn’t credible. But these two events were detailed in his written application, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
he wasn’t asked about them on the stand. Omissions of details from oral testimony
that a petitioner discussed in his written application can’t serve as the basis for an
adverse credibility determination. See Osorio v. INS, 99 F.3d 928, 931 (9th Cir.
1996).
It is also “well settled that an applicant’s testimony is not per se lacking in
credibility simply because it includes details that are not set forth in the asylum
application.” Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996) (citation
omitted). The IJ therefore erred in concluding that Zhou’s testimony about the
harassment he faced after his arrest wasn’t credible simply because it contained
details not included in his written application.
2. The other inconsistencies the IJ identified don’t go to the heart of Zhou’s
claims for relief. Because the pre-Real ID Act standard applies in this case, such
minor inconsistencies can’t form the basis of an adverse credibility determination.
See Smolniakova v. Gonzales, 422 F.3d 1037, 1044 (9th Cir. 2005); Kaur v.
Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005). The ambiguity regarding
whether Zhou was “poked” with sticks or with a knife doesn’t go to the heart of his
claim—that he was tied up, abused and wounded.
page 3
Similarly, while he gave arguably inconsistent descriptions of his wife’s
religious affiliation, Zhou’s claim for asylum was based on his persecution, not his
family’s. His statements about his wife’s religion don’t enhance his application or
go to the heart of his claim. See Don v. Gonzales, 476 F.3d 738, 742 (9th Cir.
2007). Furthermore, when asked about this inconsistency on cross-examination, he
explained that he thought the application just concerned himself. The IJ’s failure
to address this reasonable explanation was error. See Singh v. Gonzales, 439 F.3d
1100, 1106 (9th Cir. 2006); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.
1999).
* * *
We GRANT Zhou’s petition for review of the BIA’s dismissal of his claims
for asylum, withholding of removal and protection under the Convention Against
Torture, and we REMAND for further proceedings to determine whether,
accepting his testimony as credible, he is eligible for relief.