NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YANAN SUN, No. 20-70003
Petitioner, Agency No. A205-554-644
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2022**
Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.
Yanan Sun, a native and citizen of China, petitions pro se 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 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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings, applying the standards governing adverse
credibility determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d
1034, 1039-40 (9th Cir. 2010). We grant in part and dismiss in part the petition for
review, and we remand.
The BIA found no clear error in three factual findings the IJ relied on in
support of an adverse credibility determination. Substantial evidence does not
support two of those findings, specifically, the finding of an omission as to Sun’s
exposure to Christianity and the finding that Sun failed to provide sufficient details
as to her practice of Christianity. See Ren v. Holder, 648 F.3d 1079, 1087 (9th Cir.
2011) (substantial evidence did not support the agency’s adverse credibility
findings where they were based on mischaracterizations of the record); see also
Iman v. Barr, 972 F.3d 1058, 1065-66 (9th Cir. 2020) (petitioner's account
determined sufficiently descriptive of pertinent events and where the agency did
not identify which portions of testimony were lacking in detail). Thus, substantial
evidence only supports the single remaining ground of the agency’s adverse
credibility determination, specifically, the finding of inconsistencies between Sun’s
testimony and supporting documents as to an encounter with police. See Shrestha,
590 F.3d at 1043-45 (overview of the analysis required to determine whether an
inconsistency can support an adverse credibility determination).
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An adverse credibility determination must be made and reviewed “based on
the ‘totality of the circumstances and all relevant factors,’ not a single factor.” See
Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)). Thus, we grant the petition for review and we remand Sun’s
asylum and withholding of removal claims on an open record to the BIA for
reconsideration of the adverse credibility determination in light of the “totality of
the circumstances [ ] and all relevant factors.” Id. at 1135 (emphasis omitted)
(citation omitted); see also INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam);
Soto-Olarte v. Holder, 555 F.3d 1089, 1095-96 (9th Cir. 2009).
In light of this disposition, we need not reach Sun’s contentions regarding
past persecution. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (the
court’s review is limited to the actual grounds relied upon by the BIA).
As to CAT relief, neither the IJ nor the BIA addressed Sun’s country
conditions evidence in the assessment of whether she had identified any record
evidence apart from her testimony found not credible that compelled the
conclusion that it is more likely than not she would be tortured by or with the
consent or acquiescence of the government if returned to China. This was
error. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“Because
the BIA failed to consider the Country Report at all, the proper course of action is
to remand with instructions that the BIA reconsider [petitioner’s] CAT claim in
3 20-70003
light of the Country Report.”). Thus, we grant the petition for review as to Sun’s
CAT claim and we remand to the BIA for further proceedings consistent with this
disposition. See id.; see also Ventura, 537 U.S. at 16-18.
We do not consider the materials Sun references in her opening brief that are
not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th
Cir. 1996) (en banc).
To the extent Sun raises a political opinion claim, a disfavored group claim,
and contends she was not allowed to fully testify as to how she was introduced to
Christianity, we lack jurisdiction to consider these contentions. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review
issues or claims not presented below).
Sun’s removal is stayed pending a decision by the BIA.
The parties must bear their own costs on appeal.
PETITION FOR REVIEW GRANTED in part; DISMISSED in part;
REMANDED.
4 20-70003
Yanan Sun v. Merrick Garland
Combined Opinion