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NOT FOR PUBLICATION APR 15 2014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
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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,
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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
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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
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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
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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,
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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).
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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.
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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.