Gang Wang v. Eric Holder, Jr.

MEMORANDUM **

Gang Wang, a native and citizen of the People’s Republic of China, appeals the decision of the Board of Immigration Appeals (“BIA”) denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) based on the immigration judge’s (“IJ”) adverse credibility determination. We have jurisdiction under 8 U.S.C. § 1252 . We grant Wang’s petition and remand it to the BIA for further review.

Because Wang filed his application after May 11, 2005, Wang’s petition is governed by the credibility and corroboration standards set forth in the REAL ID Act of 2005. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir.2010). The BIA’s factual findings are reviewed for substantial evidence, while questions of law are reviewed de novo. Zhang v. Gonzales, 408 F.3d 1239, 1244 (9th Cir.2005).

Our review “is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (internal quotation marks omitted). The BIA reviewed the IJ’s adverse credibility determination for clear error and expressly adopted two of the findings the IJ articulated in support of…

concurring in part and dissenting in part:

I agree that the two findings adopted and relied upon by the BIA to support the IJ’s adverse credibility determination are not supported by substantial evidence, and thus, the case should be remanded. I respectfully disagree, however, that Wang’s testimony should be “deemed credible” on remand, a restrictive measure that should be employed sparingly and not under the circumstances here. See INS v. Ventura, 537 U.S. 12, 16 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002) (when reversing the BIA, “the proper course, except in rare circumstances, is to remand to the agency *544 for additional investigation or explanation”).

Indeed, “no other circuit has adopted this ‘deemed credible’ rule.” Soto-Olarte v. Holder, 555 F.3d 1089, 1093 (9th Cir.2009). See, e.g., Castaneda-Castillo v. Gonzales, 488 F.3d 17, 24-25 (1st Cir.2007) (en banc) (“The suggestion may be made ... that remand gives the agency a second bite at the apple. The short answer is that, outside criminal prosecutions governed by double jeopardy principles, second bites are routine in litigation. If the agency decision is flawed by mistaken legal premises, unsustainable subsidiary…

FILED

NOT FOR PUBLICATION AUG 18 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GANG WANG, No. 11-70309

Petitioner, Agency No. A099-370-020

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted July 7, 2014 Pasadena, California

Before: NOONAN and BERZON, Circuit Judges, and SABRAW, District Judge.**

Gang Wang, a native and citizen of the People’s Republic of China, appeals

the decision of the Board of Immigration Appeals (“BIA”) denying his applications

for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”) based on the immigration judge’s (“IJ”) adverse credibility

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Dana M. Sabraw, District Judge for the U.S. District Court for the Southern District of California, sitting by designation. determination. We have jurisdiction under 8…