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Wenli Wang v. Garland

United States Court of Appeals, Ninth Circuit
Oct 20, 2022
No. 17-71129 (9th Cir. Oct. 20, 2022)

Opinion

17-71129

10-20-2022

WENLI WANG, 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NOT FOR PUBLICATION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. A201-187-343

Before: SILVERMAN, GRABER, BENNETT, Circuit Judges.

MEMORANDUM [*]

Wenli Wang, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's ("IJ") decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("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 six factual findings the IJ relied on in support of an adverse credibility determination. Substantial evidence does not support five of these findings. Substantial evidence does not support the agency's determinations that Wang testified inconsistently about his harm during his police check-ins, the injuries he sustained during detention, and the electric baton used during his detention. See Barseghyan v. Garland, 39 F.4th 1138, 1143 (9th Cir. 2022) (alleged inconsistency did not support adverse credibility determination because it was not, in fact, inconsistent). Substantial evidence does not support the agency's determination that Wang testified inconsistently regarding whether he was interrogated because he was not provided an opportunity to explain. See Perez-Arceo v. Lynch, 821 F.3d 1178, 1184 (9th Cir. 2016) (petitioner must have an opportunity to explain inconsistencies). Substantial evidence also does not support the agency's determination that Wang's testimony was nonresponsive regarding who attended the village protests. See Shrestha, 590 F.3d at 1045 (the agency "must identify specific instances, supported by the record, where the petitioner did not respond").

Substantial evidence appears to support the one remaining credibility finding that Wang's testimony was nonresponsive regarding whether he was informed he would be compensated for his land, although it is unclear whether this deficiency may have been due to unreliable or faulty translation. See id. at 1040, 1045 (responsiveness may be considered in assessing credibility under the totality of the circumstances); but see He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003) ("[F]aulty or unreliable translations can undermine the evidence on which an adverse credibility determination is based.").

Because we cannot be confident that the BIA would have upheld the adverse credibility determination based on the one remaining finding, we grant the petition and remand for the BIA to reconsider Wang'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).

We do not consider the materials Wang references in his 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.

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW GRANTED; REMANDED.

[*] 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).


Summaries of

Wenli Wang v. Garland

United States Court of Appeals, Ninth Circuit
Oct 20, 2022
No. 17-71129 (9th Cir. Oct. 20, 2022)
Case details for

Wenli Wang v. Garland

Case Details

Full title:WENLI WANG, Petitioner, v. MERRICK B. GARLAND, Attorney General…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 20, 2022

Citations

No. 17-71129 (9th Cir. Oct. 20, 2022)