Ri Jin v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 24 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RI JIN, No. 10-71957

Petitioner, Agency No. A099-062-695

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted March 19, 2013**

Before: HUG, FARRIS, and LEAVY, Circuit Judges.

Ri Jin, a native and citizen of China, petitions pro se for review of a decision

from the Board of Immigration Appeals (“BIA”) in which the BIA dismissed his

appeal from the immigration judge’s (“IJ”) adverse credibility finding and denial

of relief in the form of 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.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. §

1252(a), and we deny in part and grant in part Jin’s petition for review.1

Where the BIA’s phrasing suggests that it conducted an independent review

of the record, but its analysis of relevant issues consists of a simple statement of a

conclusion, this court looks to both the BIA’s and the IJ’s decisions. Shrestha v.

Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). This court reviews legal questions

de novo and reviews factual findings, including adverse credibility determinations,

for substantial evidence. Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.

2011). A denial of asylum, withholding of removal, or CAT relief is reviewed for

substantial evidence. Sinha v. Holder, 564 F.3d 1015, 1020, 1025 (9th Cir. 2009).

A. Credibility Determination

The agency found that Jin failed to credibly establish his identity. However,

substantial evidence does not support the agency’s bases for its finding, discussed

in turn below. See Ren v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011).

First, the IJ found that she could not determine Jin’s nationality because

while he had a Chinese passport, he testified that his parents and sister live in

South Korea. However, the IJ did not explain why the authenticity of Jin’s

1
Because the parties are familiar with the facts underlying this appeal, we
do not recount the facts here.

2
passport was undermined by the fact that his family lived in South Korea, and there

is nothing in the record to suggest that Jin’s passport was not genuine. Therefore,

the IJ’s first reason is based on speculation and is an improper basis for an adverse

credibility finding. See Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009) (holding

that substantial evidence does not support an adverse credibility determination

based on speculation, conjecture, and assumptions).

Second, the IJ found that Jin’s household registries from 2001 and 2007

were inconsistent with each other because the 2007 registry indicated that Jin had

two National ID numbers. However, the record compels the conclusion that this

discrepancy is the result of typographical and translation errors, and it therefore

cannot be the basis of an adverse credibility finding. See Shrestha, 590 F.3d at

1043; Wang v. INS, 352 F.3d 1250, 1254 (9th Cir. 2003).

Third, the IJ found it significant that the 2007 household registry listed Jin as

a member of the household despite the fact that he arrived in the United States in

2005. However, the IJ failed to address Jin’s plausible explanation that his family

included him in the 2007 household registry because his escape to the United

States was a secret. Because the IJ failed to address Jin’s plausible explanation,

this perceived inconsistency is not sufficient to support an adverse credibility

determination. See Soto-Olarte v. Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009)

3
(holding in a pre-REAL ID case that inconsistencies could not support an adverse

credibility finding where the agency did not address the petitioner’s explanation for

them); see also Shrestha, 590 F.3d at 1044 (citing Soto-Olarte, 555 F.3d at 1091)

(concluding that under the REAL ID Act, the agency should consider a petitioner’s

explanation for an inconsistency).

Finally, the IJ found that Jin’s notarial birth certificate and National ID card

were not sufficient to establish his identity in light of the other perceived

inconsistencies in his identity documents. However, none of the perceived

inconsistencies are supported by substantial evidence, and Jin’s notarial certificate

and National ID card are consistent with his testimony and documentary evidence.

Therefore, substantial evidence does not support the agency’s finding that

Jin failed to establish his credibility.

Moreover, substantial evidence does not support the IJ’s alternate finding

that even if Jin had established his identity, his claims were not credible.

Regarding Jin’s labor-protest claim, the IJ found that he failed to credibly

establish that he was employed. The IJ relied on her finding that the household

registries from 2001 and 2007 were inconsistent with each other. However, she

failed to address Jin’s plausible explanations for perceived inconsistencies in the

documents; therefore, these inconsistencies are not proper bases for an adverse

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credibility determination. See Soto-Olarte, 555 F.3d at 1091-92. Moreover,

because the IJ did not give Jin the opportunity to explain other perceived

inconsistencies, they cannot support an adverse credibility determination. See id.

at 1092. In addition, the IJ failed to address the evidence tending to prove that Jin

was employed, and its adverse credibility determination is therefore erroneous

because it is not based on the totality of the circumstances. See Shrestha, 590 F.3d

at 1044 (concluding that under the REAL ID Act, the IJ “should consider and

address . . . relevant evidence that tends to contravene a conclusion that a given

factor undermines credibility”).

Finally, the IJ found that Jin’s testimony that he was arrested, detained,

beaten, and then released on bail was not credible. However, the IJ provided no

reason to justify this finding, and it therefore is not supported by substantial

evidence. See id. at 1042-43 (the IJ must provide specific and cogent reasons to

support an adverse credibility finding).

The BIA affirmed the IJ’s adverse credibility determination. It also found

that the IJ properly expected Jin to provide reasonably available corroboration.

However, substantial evidence does not support the BIA’s finding because the IJ

did not find or indicate that additional corroboration was necessary.

5
We therefore grant Jin’s petition and remand on an open record for a

reevaluation of his credibility. See Soto-Olarte, 555 F.3d at 1093-96.

B. Asylum and Withholding of Removal

The agency also found that even if Jin had testified credibly, he was not

eligible for relief on the basis of his fiancee’s forced abortion because he failed to

show that he participated in “other resistance” to China’s population control

policy. Substantial evidence supports the agency’s denial of this claim. See Jiang

v. Holder, 611 F.3d 1086, 1091-94 (9th Cir. 2010).

Jin argues for the first time before this court that he is eligible for asylum

based on his harboring a North Korean refugee. However, we do not consider this

claim because Jin failed to properly raise this issue before the agency. See Barron

v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Regarding Jin’s claim that he was persecuted for his participation in a labor

protest, the BIA did not address the merits of Jin’s claim but rather relied on its

adverse credibility finding to deny relief. Moreover, in finding that Jin had not

engaged in protected activity, the IJ did not have the benefit of our decision in Hu

v. Holder, 652 F.3d 1011 (9th Cir. 2011). We therefore remand for a consideration

of the merits of this claim. See INS v. Ventura, 537 U.S. 12, 16-18 (2002).

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Because the foregoing issues are dispositive, we decline to address Jin’s

remaining arguments. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a

general rule courts and agencies are not required to make findings on issues the

decision of which is unnecessary to the results they reach.”).

C. Remand to the BIA

We thus deny Jin’s petition for review with respect to his claim based on his

fiancee’s forced abortion. We grant Jin’s petition for review with regard to his

labor-protest claim and remand on an open record for a reassessment of Jin’s

credibility and for a determination of whether Jin suffered past persecution or has a

well-founded fear of future persecution on account of a protected ground.

We also remand Jin’s CAT claim “because we cannot conduct a meaningful

review of the BIA’s decision on the issue, where the BIA failed to provide a

reasoned explanation of its decision.” Hu, 652 F.3d at 1020 (citing Movsisian v.

Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)).

Petition DENIED in part; GRANTED in part; and REMANDED with

instructions.

Each party to bear their own costs.