NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 25 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DESHENG LIU, No. 16-72283

Petitioner, Agency No. A099-731-203

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted November 14, 2019 Pasadena, California

Before: GRABER and BERZON, Circuit Judges, and DONATO,** District Judge.

Desheng Liu, a native and citizen of China, petitions for review of a decision

by the Board of Immigration Appeals (BIA). The BIA dismissed Liu’s appeal from

an immigration judge’s (IJ’s) decision denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. (CAT). We grant the petition in part and remand to the BIA for further

proceedings.

1. The BIA relied on the IJ’s finding that Liu’s claim of persecution and

torture on account of his possession of written materials criticizing the Chinese

Communist Party was not credible. The adverse credibility determination was not

supported by substantial evidence.

First, it was improper for the BIA to rely on minor omissions of details from

Liu’s asylum statement because the basic facts of his story—that he was found

with forbidden materials, arrested, beaten by the police, and subsequently

dismissed from his job—were adequately laid out in the statement. See Lai v.

Holder, 773 F.3d 966, 971 (9th Cir. 2014). Additionally, the IJ’s determination that

Liu’s statement did not mention that his colleagues were also arrested was clear

error, as the statement did mention that colleagues were arrested, although it did

not name them. See Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010).

Second, substantial evidence does not support the BIA’s reliance on

supposed inconsistencies between Liu’s testimony and the documentary evidence

he provided. That the hospital diagnosis certificate omitted some of the details Liu

testified about does not make the certificate inconsistent with Liu’s testimony. See

Singh v. Ashcroft, 301 F.3d 1109, 1112 (9th Cir. 2002). Moreover, Liu was not

asked on cross-examination why the certificate did not mention the CT scan. An

2 inconsistency or omission cannot support an adverse credibility determination if

the petitioner is not asked to explain it. See Perez-Arceo v. Lynch, 821 F.3d 1178,

1184 (9th Cir. 2016). Additionally, the fact that Liu’s household register, dated

2007, still listed a hotel in China as his employer does not contradict Liu’s story

that he was fired from the hotel in 2005. Liu has been in the United States since

February 2006, so the register’s employment entry was obviously out of date, and

Liu provided an adequate explanation for why that was so.

Third, the BIA’s reliance on Liu’s ability to leave China, despite testifying

that the police had told him he could not leave the city of Yantai and should stay at

home, is insufficient to support the adverse credibility finding. As for the supposed

inconsistency in Liu’s story, Liu did not testify that he was under constant

surveillance, and he was not asked how he traveled from his home to the airport.

See Perez-Arceo, 821 F.3d at 1184. As for the country report, the “IJ may use a

country report as supplemental evidence to discredit a generalized statement made

by the petitioner but not to discredit specific testimony regarding his individual

experience.” Zheng v. Ashcroft, 397 F.3d 1139, 1143 (9th Cir. 2005) (internal

quotation marks omitted).

Finally, substantial evidence does not support the IJ’s concerns about the

authenticity of some of the documents that Liu provided because those concerns

were based on the IJ’s “bare personal view,” not on “evidence in the record.” Lin v.

3 Gonzales, 434 F.3d 1158, 1163 (9th Cir. 2006). Additionally, the IJ erred in

concluding it was implausible that Liu was afraid to ask his wife to send him

documentation of other hospital visits because Liu never testified to that effect.

Instead, he said he did not want to ask his wife to write him a letter confirming the

sentence received by his colleague because he was concerned that such a letter

could be intercepted and could implicate his wife in harboring a criminal.

In sum, the adverse credibility determination was not supported by

substantial evidence.1 We therefore remand Liu’s asylum and CAT claims to the

BIA for further proceedings consistent with this opinion.

2. We lack jurisdiction over Liu’s claim for withholding of removal

because he did not raise that claim in his appeal to the BIA. See Barron v. Ashcroft,

358 F.3d 674, 678 (9th Cir. 2004).

Petition GRANTED in part, DISMISSED in part, and REMANDED.

1 “[W]e do not review those parts of the IJ’s adverse credibility finding that the BIA did not identify as ‘most significant’ and did not otherwise mention.” Lai, 773 F.3d at 970.

4

FILED

NOV 25 2019

Liu v. Barr, No. 16-72283 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

GRABER, Circuit Judge, concurring in part and dissenting in part:

I concur in Part 2 of the disposition, concerning withholding of removal, but

respectfully dissent from Part 1, concerning the adverse credibility finding. I

would deny the petition insofar as it is not dismissed.

If even one of the identified grounds underlying the adverse credibility

finding is supported by substantial evidence, we must accept that finding. 8 U.S.C.

§ 1252(b)(4)(B); Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010). Here are

several inconsistencies that, in my view, support the adverse credibility finding.

Petitioner claimed that he was fired from his position as a chef at a hotel in

2005, which was inconsistent with the household register. Moreover, Petitioner

still possesses his hotel work badge. The agency was not required to believe

Petitioner’s explanation for the discrepancies. Finding that the household register

is "obviously out of date" is a conclusion that requires believing Petitioner’s

explanation, which the agency was not required to do.

Petitioner testified that he did not disclose that he was hit with an ashtray

because he "thought" that the diagnosis certificate would "show that." But he also

testified that the police forced him to lie to the doctor and say that he hurt himself

in a fall. If that were true, and he told the doctor that he was injured in a fall, Petitioner could not have thought that the certificate would show that he was hit

with an ashtray. Again, the agency did not have to believe Petitioner’s

explanation. And the omission in the certificate of a CAT scan is not, in my view,

a trivial omission.

Petitioner testified that he was not allowed to leave his home area and was

living under police restrictions. The IJ and BIA permissibly concluded that

Petitioner’s accounts of his travel within China, and from China, were inconsistent

with the stated restrictions. Petitioner gave an explanation (the local police did not

notify all the authorities), but the agency was not required to accept it. Petitioner’s

freedom to travel, inside and outside of China, conflicts with his testimony that he

was charged with a very serious political crime and charged a high bail because the

police thought that he was a flight risk.

Petitioner testified that he was afraid to have his wife send him a letter

confirming the sentence received by his colleague because he was concerned that

such a letter could be intercepted and could implicate his wife in harboring a

criminal. The agency was not required to accept that explanation, particularly in

light of the fact that Petitioner’s wife had previously sent several documents to

Petitioner in the United States. Presumably, interception of those documents could

have given rise to the implication that Petitioner’s wife was harboring a criminal.

2 For those reasons, I would deny the petition in part and dismiss it in part.

3