NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 08 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LIBIN GUO, No. 13-72339
Petitioner, Agency No. A201-211-623
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 November 19, 2014
Pasadena, California
Before: SCHROEDER and NGUYEN, Circuit Judges, and ZOUHARY, District
Judge.**
Petitioner Libin Guo, a native and citizen of China, petitions for review of a Board
of Immigration Appeals’s (“BIA”) decision affirming an Immigration Judge’s (“IJ”)
denial of his applications for asylum, withholding of removal, and relief under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Convention Against Torture (“CAT”). We grant in part and deny in part the petition for
review.
Substantial evidence does not support the BIA’s adverse credibility finding, nor its
alternative finding that Petitioner did not suffer past persecution. The BIA upheld the
adverse credibility finding largely on the basis of inconsistencies in Petitioner’s testimony
as noted by the IJ. Such inconsistencies are not supported by the record.
One such inconsistency related to medical evidence. Petitioner testified he
suffered soft tissue injuries after Chinese police beat and kicked him for about twenty
minutes, and demonstrated by raising his left arm as if blocking blows. His corroborating
medical evidence shows soft tissue injury on the right side. But, Petitioner never testified
that he was beaten on his left side and, even assuming there is a perceivable inconsistency
between his demonstration in court and the medical evidence, he was never asked to
explain it. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (noting an IJ must
give a petitioner a chance to explain any perceived inconsistencies).
The other alleged inconsistencies related to Petitioner’s employment, including the
name of the company for whom he worked. However, he explained the relationship of
the entities that employed him and the difference between the company he said fired him
and the paper for whom he worked. Differences in the company names in the
documentary evidence were due to translation errors. Similarly, much of the lack of
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clarity in Petitioner’s responses about the specific disease and treatment was due to
translation errors and the professed difficulty the translator encountered with certain
medical terms. See Akinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999) (stating
inconsistencies that possibly resulted from mistranslation or miscommunication do not
support an adverse credibility finding).
As to the article that Petitioner testified led to his mistreatment, Petitioner was
asked whether he had a copy, and responded he did not. He was never asked why, and
was never asked whether he could produce one. See Ai Jun Zhi v. Holder, 751 F.3d 1088,
1094–95 (9th Cir. 2014) (requiring a petitioner to be given notice and a chance to explain
failure to produce corroborating evidence). Petitioner was consistent in his testimony that
he wrote the article, so the BIA’s reference to an inconsistency in that regard is not
supported by the record.
The BIA’s findings and conclusions as to credibility are further undermined by the
translation deficiencies. We have recognized the critical role of the translator, see Perez-
Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000), and have held translation difficulties can
require granting relief even when they do not rise to the level of a denial of due process,
see He v. Ashcroft, 328 F.3d 593, 597–98 (9th Cir. 2003).
We have also recognized that impatience and hostility can impact the accuracy of a
proceeding. See He, 328 F.3d at 603; see also Shrestha v. Holder, 590 F.3d 1034, 1040
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(9th Cir. 2010) (“Although we don’t expect an [IJ] to search for ways to sustain an alien’s
testimony, neither do we expect the judge to search for ways to undermine and belittle
it.”). The IJ’s impatience may have hampered Petitioner’s ability to present his case,
including his ability to develop the extent of his injuries. See Mendoza-Manimbao v.
Ashcroft, 329 F.3d 655, 661 (9th Cir. 2002) (stating that the IJ is under a duty to assist in
developing the record). For the same reasons, we cannot conclude that substantial
evidence supports the BIA’s affirmance of the IJ’s alternative finding that Petitioner’s
treatment by the police did not rise to the level of persecution.
Because substantial evidence does not support the denial of Petitioner’s asylum
application, we grant the petition for review on that claim, and remand it for further
consideration. Petitioner failed to exhaust his withholding of removal, CAT, or due
process claims by raising them on appeal to the BIA. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004). We deny the petition for review on those claims.
GRANTED in part, DENIED in part and REMANDED. Costs are awarded to
the Petitioner.
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