Opinion
15-72901
10-20-2022
ZEHUI HE, 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NOT FOR PUBLICATION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. A088-292-108
Before: SILVERMAN, GRABER, and BENNETT, Circuit Judges.
MEMORANDUM [*]
Zehui He, 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's") decision denying her 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 four 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 He's forced sterilization requirement and the finding that He provided evasive testimony about her addresses in the U.S. See id. at 1044 (under the substantial evidence standard, findings must be supported by the record evidence); see also Lalayan v. Garland, 4 F.4th 822, 839 (9th Cir. 2021) (adverse credibility determinations based on unresponsiveness must identify particular instances in the record where the petitioner refused to answer questions). Substantial evidence supports the remaining credibility findings as to omissions from He's declaration concerning her IUD insertions and removals and her urine exam requirements. See Iman v. Barr, 972 F.3d 1058, 1067-69 (9th Cir. 2020) (discussion of the analysis required to determine whether an omission can support an adverse credibility determination).
Because we cannot be confident that the BIA would have upheld the adverse credibility determination based on these two omissions alone, we grant the petition and remand for the BIA to reconsider He'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 factors support determination).
In light of this disposition, we need not reach He's remaining contentions regarding the merits of her applications. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they reach).
We do not consider the materials He 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 temporary stay of removal remains in place until the mandate issues. The parties must bear their own costs on appeal.
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).