FILED
NOT FOR PUBLICATION AUG 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEI LIU, No. 11-71182
Petitioner, Agency No. A088-131-645
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 May 12, 2014
Pasadena, California
Before: NOONAN, WARDLAW and FISHER, Circuit Judges.
Mei Liu, a native and citizen of China, seeks review of the Board of
Immigration Appeals’ order affirming an immigration judge’s denial of her claims
for asylum, withholding of removal and protection under the Convention Against
Torture. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition and
remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Where, as here, the BIA reviewed the IJ’s adverse credibility determination
for clear error, we “look to the IJ’s oral decision as a guide to what lay behind the
BIA’s conclusion” but review only those portions of the IJ’s credibility finding that
the BIA identified as most significant. Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th
Cir. 2008) (internal quotation marks omitted). “We review factual findings,
including adverse credibility determinations, for substantial evidence.” Garcia v.
Holder, 749 F.3d 785, 789 (9th Cir. 2014).
The BIA cited four bases for affirming the IJ’s adverse credibility finding:
(1) Liu’s failure to raise her mother’s arrest and detention until her testimony
before the IJ; (2) Liu’s failure to mention home visits from the police until her
testimony; (3) Liu’s failure to describe physical harm she suffered until her second
declaration; and (4) an inconsistency between Liu’s written application and oral
testimony as to the dates she attended school in China. Substantial evidence does
not support the adverse credibility determination on these grounds. See Lai v.
Holder, --- F.3d ---- (9th Cir. 2014) (holding that substantial evidence did not
support an adverse credibility finding where initially omitted information surfaced
during government cross-examination and the applicant’s explanation for an
omission was plausible and consistent with other application materials).
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First, Liu revealed for the first time during her April 2009 testimony that her
mother had been detained since the middle of August 2007. But this information
came to light as a result of specific questions from the IJ about Liu’s mother; Liu
“did not volunteer this information as part of [her] direct testimony,” or as “a
scripted, last-minute attempt to enhance [her] persecution claim.” Lai, --- F.3d at -
---. In addition, Liu adequately explained that she omitted this information from
her declarations because, in her words, “I believe I just write down about myself.”
Second, Liu mentioned for the first time during her testimony that the police
came to her home a dozen times to harass her. Again, Liu revealed this
information in response to specific questions from the IJ, not as part of a scripted
addition to her claim. Liu logically explained that she did not include this
information in her declarations because she did not know she needed to do so,
given that she was not home at the time of the visits and she heard about them from
her mother.
Third, Liu described the physical harm she suffered only in her second
declaration and in her testimony, not in her original written statement. However,
“‘the mere omission of details is insufficient to uphold an adverse credibility
finding.’” Singh v. Gonzales, 403 F.3d 1081, 1085 (9th Cir. 2005) (alteration
omitted) (quoting Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000)). Liu
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explained consistently, if not eloquently, throughout her testimony that her second
declaration served as a supplement to her first, so she could add details that were
left out of the first.
Fourth, Liu indicated in her application that she attended school in China
only until July 2006, but also wrote in her statements that she was forced to
undergo “ideological education” at school beginning in September 2006. Liu,
however, adequately explained the reason for this apparent inconsistency, telling
the IJ that her school had a three-year program and a five-year program, and that
she noted her attendance dates through her completion of the three-year program,
but not for the five-year program that she did not complete. See Shrestha v.
Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (“[I]n evaluating inconsistencies, the
relevant circumstances that an IJ should consider include the petitioner’s
explanation for a perceived inconsistency, and other record evidence that sheds
light on whether there is in fact an inconsistency at all.” (citation omitted)).
Because the grounds cited by the BIA for the adverse credibility
determination fail, Liu’s testimony must be taken as true for the purposes of
reevaluation of her claims on remand. See Tekle, 533 F.3d at 1055.
PETITION FOR REVIEW GRANTED; REMANDED.
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