Xianyang Shao v. William Barr

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT XIANYANG SHAO, No. 15-70833 Petitioner, Agency No. A201-037-809 v. MEMORANDUM * 0F0F0F0F WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 22, 2019 San Francisco, California Before: WALLACE and MURGUIA, Circuit Judges, and LASNIK, ** District F2F Judge. Xianyang Shao, a native and citizen of the People’s Republic of China, petitions for review of the decision of the Board of Immigration Appeals (Board) affirming the Immigration Judge’s (IJ) denial of his application for asylum, withholding from removal, and protection under Article III of the Convention * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Against Torture (CAT). We have jurisdiction under 8 U.S.C. section 1252(a)(1). Because the Board “conducted its own review of the evidence and law” and did not “expressly adopt” the IJ’s decision, we independently review the Board’s decision. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (citation omitted). We deny in part and grant in part the petition for review, and we remand to the Board. Substantial evidence supports the IJ’s adverse credibility finding, which the Board affirmed. In finding Shao not credible, the IJ offered “specific cogent” reasons and based her finding on the “totality of circumstances.” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014) (citation omitted). That Shao’s passport was issued four days before the date on which he testified he was arrested was not a trivial detail. Shao testified that he left China and sought asylum in the United States when he did because he was “detained” and “arrested” by the Chinese government. Whether Shao was arrested before or after his passport was issued was material to his claim for asylum. See Shrestha v. Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010) (“Although inconsistencies no longer need to go to the heart of the petitioner’s claim, when an inconsistency is at the heart of the claim it doubtless is of great weight”). This case is unlike those in which we have reversed an IJ’s adverse credibility finding based on an applicant’s “failure to remember non-material, trivial details that were only incidentally related to [his] claim[s] of persecution.” Kaur v. Gonzales, 2 418 F.3d 1061, 1064 (9th Cir. 2005). For example, in Bandaris v. I.N.S., the applicant had inconsistently testified about whether he was sentenced to 75 lashes or whipped 75 times on the date of his arrest. See 227 F.3d 1160 (9th Cir. 2000). There, we reversed the IJ’s adverse credibility finding because the specific date the applicant had received a type of beating, among many attacks over several days, was a trivial matter about which the applicant had no reason to ...

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