Hua He v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HUA HE, No. 21-70223 Petitioner, Agency No. A209-201-644 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 17, 2022 Honolulu, Hawaii Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges. Dissent by Judge R. NELSON. Petitioner Hua He, a native and citizen of China, seeks review of the Board of Immigration Appeals’s (BIA) denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).1 The Immigration * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Petitioner did not address withholding of removal or CAT relief in his opening brief. Therefore, those issues are waived. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013). Judge (IJ) found Petitioner not credible and denied all relief, and the BIA affirmed based on inconsistencies regarding Petitioner’s address and his wife’s medical appointments and intrauterine device (IUD). We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review and remand to the BIA for further proceedings. We review factual findings, including credibility determinations, for substantial evidence. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020). In evaluating credibility, if a petitioner “offers a ‘reasonable and plausible explanation’ for [an] apparent discrepancy, the IJ must provide a specific and cogent reason for rejecting it.” Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (quoting Soto–Olarte v. Holder, 555 F.3d 1089, 1091–92 (9th Cir. 2009)), abrogated on other grounds by Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021). The IJ may only rely on an explained inconsistency in finding the petitioner not credible if it “reasonably rejects” the explanation or if the explanation is not “plausible.” Id. 1. Petitioner’s Addresses. The BIA failed to provide a “specific and cogent reason” for rejecting Petitioner’s explanation for his inconsistencies regarding his address. When the IJ asked Petitioner why he listed only the Hezhang address on his application, Petitioner explained that this was his address in the Chinese “household registration system” and that in China this is the address that one uses when filling out forms. The record also establishes that Petitioner or his family owned the 2 Hezhang residence throughout the relevant period. Both the IJ and BIA acknowledged Petitioner’s explanation, but they rejected it because the asylum application questions were read to Petitioner when he filled out his form. This was error. Petitioner’s explanation for listing his Chinese household registry address was “reasonable and plausible” even if the asylum application questions were read to him. Thus, the IJ and BIA failed to provide a “specific and cogent reason” for rejecting his explanation. Rizk, 629 F.3d at 1088; see Soto-Olarte, 555 F.3d at 1091 (“[I]n order to ensure a fair hearing, …

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