NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
XUE YUN SUN, No. 12-73010
Petitioner, Agency No. A093-408-574
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2016**
San Francisco, California
Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.
Xue Yun Sun, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s (“IJ”) decision denying her application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s factual
findings for substantial evidence, applying the standards governing adverse
credibility determinations created by the REAL ID Act. Shrestha v. Holder, 590
F.3d 1034, 1039-40 (9th Cir. 2010). We review legal questions de novo. Id. at
1048. We deny in part and grant in part the petition for review, and we remand.
Sun sought relief on two distinct grounds, one based on an alleged forced
abortion in China, and the other based on a whistleblower theory related to
mistreatment she incurred for attempting to prosecute a government official who
raped her niece. The BIA affirmed the IJ’s denial of the forced abortion claim on
adverse credibility grounds. Substantial evidence supports that determination
based on Sun’s omission of the forced abortion from her initial application and
asylum interview. See Zamanov v. Holder, 649 F.3d 969, 973-74 (9th Cir. 2011)
(holding that the petitioner’s material omission of politically-motivated
mistreatment from his asylum interview supported the agency’s adverse credibility
determination). The record does not support Sun’s contentions that the agency
failed to articulate an adequate basis for this credibility determination, or that the
agency ignored her explanation for the omission. Thus, we deny Sun’s petition as
to both asylum and withholding of removal based on her alleged forced abortion.
See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
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Although the IJ denied Sun’s whistleblowing claim on adverse credibility
grounds as well, the BIA assumed Sun was credible as to her whistleblowing
claim, and concluded in the first instance that Sun did not demonstrate past
persecution on account of a protected ground because she failed to present
sufficient corroborative evidence. The BIA specifically noted a lack of evidence
corroborating the niece’s rape and opined that such evidence was reasonably
available. In doing so, the BIA denied a credible applicant’s asylum claim solely
based on insufficient corroborating evidence, without undertaking the sequential
analysis required for such determinations. See Ren v. Holder, 648 F.3d 1079,
1090-93 (9th Cir. 2011).
On remand, the BIA has the opportunity to analyze dispositive issues
unrelated to its initial corroboration determination and revisit its assumption that
Sun was credible. However, if the agency ultimately determines Sun has not met
her burden of proof for asylum or withholding of removal solely due to a lack of
corroborating evidence, the agency must (i) expressly determine Sun’s credible
testimony alone does not meet her burden of proof, (ii) give Sun notice that further
corroborative evidence is required, and (iii) provide Sun an opportunity to either
produce that evidence or explain why it is not reasonably available. See id. at
1093. Accordingly, we grant the petition as to Sun's claim for asylum and
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withholding of removal based on her whistleblower status, and we remand to the
BIA for further proceedings consistent with this disposition.
Finally, the IJ found Sun did not meet her burden for CAT relief after
determining that Sun’s entire testimony lacked credibility. Because the BIA
assumed in the first instance that Sun was credible as to her whistleblower claim, it
was required to consider the credible portions of Sun’s testimony in determining
her eligibility for CAT relief. See 8 C.F.R. § 1208.16(c)(3). It is unclear from the
decision, however, whether the BIA considered that testimony. We therefore grant
the petition as to Sun's CAT claim and remand to the BIA for further proceedings
consistent with this disposition.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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