Feng

MEMORANDUM **

Shao Qun Feng (“Feng”) appeals from the BIA’s decision denying her application for asylum. We have jurisdiction under 8 U.S.C. § 1252 , and we reverse.

The Board of Immigration Appeals (“BIA”) conducted its own review of the evidence and law in this case. Accordingly, our review “‘is limited to the BIA’s decision, except to the extent the Immigration Judge’s (“IJ’s”) opinion is expressly adopted.’ ” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000)). We review an IJ’s credibility determination for substantial evidence. Malkandi v. Holder, 576 F.3d 906, 908 (9th Cir.2009).

A trier of fact must consider “the totality of the circumstances, and all relevant factors,” in making a credibility determination. 8 U.S.C. § 1158 (b)(l)(B)(iii). Here, the IJ’s adverse credibility determination was based entirely on inconsistencies between the English-language declaration attached to the first asylum application and Feng’s in-court testimony. That first asylum application should not have been accepted into evidence by the IJ at Feng’s merits hearing because the statements it contained cannot be reliably…

dissenting.

I respectfully dissent. The IJ did not err when he admitted Feng’s first asylum application into evidence because it contained sufficient indicia of reliability to allow a trier of fact to conclude the information in that asylum application came from Feng: accurate biological, family, education, and work history information. 1 Because Feng’s answers in her first application were inconsistent with answers in her second application and with her asylum hearing testimony, there is substantial evidence in the record from which the IJ could have concluded Feng was not credible. Therefore, I would deny Feng’s petition for review.

United States immigration authorities apprehended Feng, a native and citizen of China, when she attempted to enter Puer-to Rico. Feng’s family hired an attorney they knew had a Mandarin-speaking assistant to prepare Feng’s asylum application, and told Feng that her attorney had a Mandarin-speaking assistant. Feng spoke with the assistant twice by telephone for fifteen minutes each time, and Feng asked the assistant to prepare an asylum application for her. The attorney prepared Feng’s asylum application and sent it to her. The application was…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT NOV 12 2009

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SHAO QUN FENG, No. 07-71673

Petitioner, Agency No. A098-002-222

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 August 6, 2009 Seattle, Washington

Before: PREGERSON and BEA, Circuit Judges, and MAHAN,** District Judge.

Shao Qun Feng (“Feng”) appeals from the BIA’s decision denying her

application for asylum. We have jurisdiction under 8 U.S.C. § 1252, and we

reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable James C. Mahan, United States District Judge for the District of Nevada, sitting by designation. The Board of Immigration Appeals (“BIA”) conducted its own review of the

evidence and law in this case. Accordingly, our review “‘is limited to the BIA’s

decision, except to the extent the Immigration Judge’s (“IJ’s”) opinion is…