NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RUILI YAO, No. 15-70923
Petitioner, Agency No. A205-748-542
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2018**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Ruili Yao, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’s order affirming without opinion an immigration
judge’s (“IJ’s”) decision denying her application for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review the agency’s factual findings for
substantial evidence, applying the standards created by the REAL ID Act. Ren v.
Holder, 648 F.3d 1079, 1084–85 (9th Cir. 2011). We grant the petition for review
and remand.
Substantial evidence does not support the IJ’s adverse credibility
determination. Yao provided a reasonable explanation for her selection of a larger
travel agency instead of her friend’s smaller agency: she plausibly believed that a
bigger agency could provide greater security and a higher chance of success. The
IJ’s belief that her friend’s agency would have been a better option is “pure
speculation.” Ren, 648 F.3d at 1087 n.5.
Yao was not inconsistent when she described the extent of her father’s
involvement in her decision. First her father helped her look through newspaper
advertisements; then Yao selected the agency, placed a phone call, and attended
her first appointment alone; later she and her father went to the agency together to
pay the fee. Yao was also not inconsistent when she testified that she told the
agency she wished to come to the United States as a student, but that the agency
presumed that she might seek asylum because Yao also informed the agency of her
arrest.
2
It was not implausible for Yao to fail to include the details of her medical
treatment in her application for asylum. Yao included a declaration describing the
police officer beating and kicking her to the point of unconsciousness and
corroborated her testimony regarding her treatment with hospital records, which
the IJ did not discuss. Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010)
(noting “the requirement that an IJ not cherry pick solely facts favoring an adverse
credibility determination while ignoring facts that undermine that result”).
Substantial evidence does support the IJ’s determination that Yao’s answers
to questions regarding her mother’s visits to the United States were not credible.
Credibility determinations based on demeanor merit special deference. Singh-Kaur
v. I.N.S., 183 F.3d 1147, 1151 (9th Cir. 1999). The IJ “specifically and cogently”
described the aspects of Yao’s demeanor that undermined her credibility when
answering questions about her mother’s visits. Arulampalam v. Ashcroft, 353 F.3d
679, 686 (9th Cir. 2003). However, whether Yao’s mother visited Yao one time
or two times “is too trivial, under the total circumstances, alone to form the basis of
the adverse credibility determination.” Shrestha, 590 F.3d at 1046.
Overall, substantial evidence does not support the IJ’s highly speculative
conclusion that “once [Yao arrived] in the United States, she somehow saw some
sort of advertisement or something about how easy it is to get asylum in the United
3
States by claiming [that] something happen[ed] to someone on [account] of their
religion, and decided to leave school and pursue that route of staying in the United
States instead.”
We remand Yao’s asylum, withholding of removal, and CAT claims to the
agency, on an open record, for further proceedings consistent with this disposition.
PETITION FOR REVIEW GRANTED; REMANDED.1
1
The Motion To Withdraw Motion To Hold Proceedings in Abeyance is
granted. The Request To Have The Office of Immigration Litigation Review This
Case for Prosecutorial Discretion is denied as moot.
4
Ruili Yao v. Jefferson Sessions, III
Combined Opinion