Opinion
16-73042
10-19-2022
CHUNZI JIANG, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 12, 2022 [**]
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A087-862-560
Before SILVERMAN, GRABER, and BENNETT, Circuit Judges.
MEMORANDUM [*]
Chunzi Jiang, 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 applications for asylum, withholding of removal, and protection under the Convention Against Torture 1 ("CAT"). We have jurisdiction under 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 the petition for review and 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 these findings. Substantial evidence does not support the BIA's finding that Jiang testified inconsistently regarding the purpose for her travel to the United States, where the finding was based on a misstatement of Jiang's testimony. See Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir. 2011) (IJ inaccurately characterized testimony). Substantial evidence also does not support the BIA's determination that Jiang testified inconsistently regarding whether she had receipts of her father's medical expenses. See id.; see also Barseghyan v. Garland, 39 F.4th 1138, 1143 (9th Cir. 2022) (alleged inconsistency did not support an adverse credibility determination because it was not, in fact, inconsistent); see also Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (petitioner must have an opportunity to explain inconsistencies), overruled in part on other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021) (en banc). Substantial evidence supports the single remaining credibility finding that Jiang provided nonresponsive testimony regarding the language she spoke in China. See Iman v. Barr, 972 F.3d 1058, 1065 (9th Cir. 2020) 2 ("[T]he agency may base an adverse credibility determination on an applicant's unresponsiveness.").
Because we cannot be confident that the BIA would have upheld the adverse credibility determination based on the nonresponsive testimony alone, we grant the petition and remand for the BIA to reconsider Jiang's credibility and for any necessary further proceedings consistent with this decision. See Kumar v. Garland, 18 F.4th 1148, 1156 (9th Cir. 2021) (remand appropriate for BIA to determine whether remaining credibility factors support determination); see also Alam, 11 F.4th at 1137 (single-factor rule for adverse credibility determinations overruled).
We do not consider the materials Jiang 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).
The parties must bear their own costs on appeal.
PETITION FOR REVIEW GRANTED; REMANDED. 3
[*] 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).