Opinion
16-73090
10-04-2022
XIANHE LI, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted May 16, 2022 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A099-458-444
Before: KLEINFELD, MILLER, and COLLINS, Circuit Judges.
MEMORANDUM [*]
Petitioner Xianhe Li claims that the Board of Immigration Appeals (BIA) erroneously upheld the Immigration Judge's (IJ) adverse credibility determination that doomed his claims for asylum and withholding of removal. We review such factual determinations under the "substantial evidence" standard, according to which "[f]actual findings 'are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Lalayan v. Garland, 4 F.4th 822, 826 (9th Cir. 2021) (quoting 8 U.S.C. § 1252(b)(4)(B)). When reviewing adverse credibility determinations, we consider the totality of the circumstances. See Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc). If we reject some but not all of the BIA's reasons for an adverse credibility determination, we may remand for the BIA to consider "in the first instance whether the remaining factors-considered on their own-suffice to support an adverse credibility determination." Kumar v. Garland, 18 F.4th 1148, 1156 (9th Cir. 2021). We have jurisdiction under 8 U.S.C. § 1252 and grant the petition.
Li does not challenge the BIA's adverse Convention Against Torture determination.
We review the IJ's decision because the BIA expressly adopted it. See Lalayan, 4 F.4th at 826. A reasonable fact-finder would be compelled to disagree with all but one of the reasons discussed by the IJ.
First, the IJ relied heavily upon the failure of Li's son to testify. The IJ concluded that the only explanation for the son's non-appearance was that he feared he would perjure himself if asked to corroborate Li's testimony. But Li provided the IJ with an alternative explanation: that his son refused to testify based on his lawyer's advice and his belief that Li had mistreated Li's wife, the son's mother. The IJ disregarded Li's explanation, stating that it was "simply unacceptable." That analysis was insufficient. Li offered a "reasonable and plausible explanation," so the IJ was required to "provide a specific and cogent reason for rejecting it." Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). The IJ did not provide such a reason, so this factor is not supported by substantial evidence. Id.
Second, the IJ found Li's story of exposing corruption at his workplace implausible. But there is nothing implausible about a scheme, as Li described it, where Mr. Hong, the refinery's manager, might buy, say, 1,000 gallons of petroleum with 5% water, put it on the books as 25% water, and then sell the difference for his own benefit instead of the company's. The books would show a net of 750 gallons, in truth there would be 950 gallons, and Mr. Hong would steal the difference of 200 gallons. Li also adequately explained that he came to believe that Mr. Hong was corrupt because of unexplained drops in the company's revenue and his own discussions with Mr. Hong. The details were plausible and established, if true, a straightforward means by which Mr. Hong embezzled from the company.
The IJ identified other grounds for finding Li not to be credible, and Li challenges those grounds as well. We do not consider those issues because the agency's obvious failure to comprehend the nature of the alleged embezzlement scheme may have affected nearly every related point that the agency made as to why Li was not credible. We therefore remand for the agency to reassess Li's credibility. See Kumar, 18 F.4th at 1156.
PETITION GRANTED; REMANDED.
COLLINS, Circuit Judge, concurring in part and concurring in the judgment:
I concur in the court's conclusions that (1) the agency clearly misunderstood Petitioner Xianhe Li's testimony concerning the embezzlement scheme that allegedly occurred in Li's company; and (2) this misapprehension may well have affected the agency's overall assessment of Li's credibility in claiming that he was persecuted for protesting against the embezzlement scheme. Accordingly, I agree that the petition for review should be granted and the matter remanded to the agency under Kumar v. Garland, 18 F.4th 1148, 1156 (9th Cir. 2021).
I am not sure that I agree with the majority's further conclusions that (1) the IJ failed to adequately explain why he rejected Li's explanation for his son's failure to testify; and (2) that the IJ erred in expressing skepticism as to Li's factual basis for making such a serious allegation of an elaborate fraud. See Mem. Dispo. at 3-4. But any such disagreements ultimately make no practical difference. We all agree that the matter should be remanded on other grounds, and the court's disposition does not preclude the agency on remand from again re-examining those issues.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.