NOT FOR PUBLICATION FILED

APR 28 2020

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DODY ADRIANTO WIDODO, AKA No. 18-70922 Chloe London, Agency No. A089-608-147 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 15, 2020** San Francisco, California

Before: BERZON and IKUTA, Circuit Judges, and LEMELLE,*** District Judge.

Dody Adrianto Widodo, aka Chloe London, a native and citizen of

Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** This appeal is ordered submitted on the briefs as of April 15, 2020, pursuant to Fed. R. App. P. 34(a)(2). *** The Honorable Ivan L.R. Lemelle, United States District Judge for the Eastern District of Louisiana, sitting by designation. order dismissing her appeal from an immigration judge’s (“IJ”) decision denying

her application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). We review for substantial evidence the

agency’s factual findings, applying the standards governing adverse credibility

determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,

1039–40 (9th Cir. 2010). In general, adverse credibility findings “are conclusive

unless any reasonable adjudicator would be compelled to conclude to the

contrary.” Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011) (quoting 8 U.S.C. §

1252(b)(4)(B)). We review de novo questions of law. Bhattarai v. Lynch, 835 F.3d

1037, 1042 (9th Cir. 2016). We deny in part and grant in part the petition for

review.

1. Substantial evidence supports the agency’s adverse credibility finding

based on inconsistent testimony between Widodo’s first and last merits hearings

regarding the harm she experienced in Indonesia. “[A]n adverse credibility

determination may be supported by omissions that are not details, but new

allegations that tell a much different—and more compelling—story of persecution

than [the] initial application.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th

Cir. 2016) (alteration in original) (internal quotation marks omitted); see also

2 Alvarez-Santos v. I.N.S., 332 F.3d 1245, 1254 (9th Cir. 2003). Here, Widodo

testified at her 2017 merits hearing to several dramatic incidents of harm that she

experienced in Indonesia. Widodo did not describe any of those incidents at her

2013 merits hearing, even though she was asked twice why she was afraid to return

to Indonesia. Instead, she answered that she would have trouble finding a job,

would have reduced educational opportunities, would not be permitted to undergo

genital surgery, and would generally have less freedom than in the United States.

Moreover, the two reasons that Widodo gave for failing to mention the

incidents during the first hearing do not compel us to reverse the BIA’s credibility

finding. See Rizk, 629 F.3d at 1088. First, she explained that she forgot about the

incidents of harm when asked at her 2013 hearing, but we have previously rejected

such an explanation where the petitioner has omitted dramatic incidents. See Silva-

Pereira, 827 F.3d at 1186 (“[I]t is simply not believable that [a petitioner] would

fail to remember such dramatic incidents so closely related to his asylum claim.”)

(cleaned up). Second, when the IJ asked Widodo why she didn’t bring up any of

the dramatic incidents of harm at her hearing four years prior, Widodo attempted to

resolve the inconsistencies by saying “I couldn’t even tell about my video to my

attorney, Jasmine, because she said it’s going to be [a] conflict of interest with

3 [Catholic Charities (the organization for which the representative worked)], so I

don’t know what I have to say.” This explanation is not “reasonable [or]

plausible,” Rizk, 629 F.3d at 1088, as it is not clear how discussing potential

incidents of persecution relevant to Widodo’s asylum application could have

caused a conflict of interest with Catholic Charities. Nor is it plausible to infer that

Widodo believed she could not mention experiences related to her sexuality to her

prior representative or the IJ; at her first hearing, Widodo discussed many

experiences related to her sexuality. She stated that she “can have sex with female

or male,” she related parts of her sexual history, and she explained that she had

obtained breast implants and was seeking sex reassignment surgery. We are

therefore not compelled to reverse the BIA’s adverse credibility finding.

We deny the petition with regard to the challenge to the agency’s adverse

credibility finding. Widodo’s asylum and withholding of removal claims based on

her past persecution in Indonesia therefore fail.

2. As to Widodo’s asylum and withholding claims based on her well-

founded fear of future persecution, we grant Respondent’s request to remand the

case to “permit the agency an opportunity to analyze whether Widodo

demonstrated a well-founded fear of future persecution in Indonesia based on her

4 membership in a disfavored group, transgender women; and whether Widodo

demonstrated a well-founded fear of future persecution on any other basis.”

3. Finally, we hold that Widodo exhausted her CAT claim because she both

explicitly appealed the IJ’s CAT determination and challenged the only basis for

which the IJ denied her relief under CAT—the adverse credibility determination.

See Rendon v. Mukasey, 520 F.3d 967, 973 n.3 (9th Cir. 2008) (holding that an

issue raised in connection with one form of relief, and addressed by the BIA, was

exhausted for all forms of relief because “the legal issue involved [was] identical

for all three forms of relief.”). The BIA should consider the merits of Widodo’s

CAT claim on remand.

The petition for review is GRANTED in part, DENIED in part, and the case

is REMANDED to the BIA for further proceedings.1

1 Each party will bear its own costs on appeal.

5

FILED

Widodo v. Barr, No. 18-70922

APR 28 2020

BERZON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in Paragraphs 2 and 3 of the memorandum disposition, but

respectfully dissent from Paragraph 1.

The immigration judge (“IJ”) and the Board of Immigration Appeals

(“BIA”) held that Widodo’s 2017 testimony was “inconsistent” with her 2013

testimony and her I-589 application because she recounted incidents of past harm

she had never described before. This determination is not supported by substantial

evidence.

First, the IJ erred by not giving Widodo a reasonable opportunity to explain

the apparent inconsistency between her written application and her 2017 testimony.

Soto-Olarte v. Holder, 555 F.3d 1089, 1091–92 (9th Cir. 2009); see also Perez-

Arceo v. Lynch, 821 F.3d 1178, 1184 (9th Cir. 2016). Widodo argues that if asked,

she would have explained that her I-589 application was incomplete for reasons

having to do with the representative who completed it. This Court has recognized

“that preparers, whether lawyers or non-lawyers, are not always scrupulous, and

that as a result, asylum applicants may be compelled to explain facts the preparer

included in the application.” Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.

2003). Widodo’s representative explained on the record that she was “in a big

hurry to prepare [Widodo’s application]” and “expecte[ed] to amend it in the

1 future.” Widodo’s representative also explained that “there wasn’t enough time to

realize what’s going on with respondent and then to prepare an application and

then . . . to argue the merits.” But Widodo’s representative never filed an amended

application. Because Widodo was not afforded an opportunity to explain the

perceived inconsistency between her I-589 application and her 2017 testimony, the

adverse credibility determination was not supported by substantial evidence insofar

as it was based on this asserted discrepancy.

Second, Widodo’s 2013 and 2017 testimony are not inconsistent. Widodo

was not asked in 2013 any specific questions about past persecution. One

explanation for Widodo’s representative’s failure to ask questions about past harm

is that she did not know about the incidents Widodo described in 2017. Widodo

has repeatedly explained that she did not feel comfortable telling her representative

about what she experienced because of her sexuality. If an applicant “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) (citation omitted). Although the BIA was “unpersuaded

by” Widodo’s explanation on appeal that Widodo was “embarrass[ed]” to share

“all of the incidents that reflect on her sexuality with her representative from

Catholic Charities,” the BIA did not consider Widodo’s explanations that she

“couldn’t even tell about my [pornography] video to my [representative] because

2 she said it’s going to be conflict of interest with [Catholic Charities], so I don’t

know what I have to say,” and that Widodo therefore “wasn’t prepared” for her

2013 hearing. The BIA erred in failing to consider that Widodo was not prepared

to testify fully in 2013 because she had not discussed incidents of past harm with

her representative due to a perceived conflict of interest, and so her representative

did not ask pertinent questions at the hearing.

Finally, the new testimony Widodo presented was in response to the BIA’s

remand order. The BIA remanded the case in 2015, requiring “further fact-finding

on the issue of how the Indonesian law criminalizing same-sex sexual activity may

affect [Widodo’s] claim for asylum, withholding of removal, and protection under

CAT.” Widodo’s testimony about past harm she experienced in Indonesia because

of her bisexuality should be considered responsive to this directive, rather than

inconsistent with her previous testimony.

For these reasons, I would hold the adverse credibility determination not

supported by substantial evidence. I therefore would direct the BIA on remand to

consider whether Widodo’s testimony regarding past harm in Indonesia qualifies

as past persecution, and if so to place the burden on the government with respect to

whether Widodo has a well-founded fear of future persecution. See 8 C.F.R. §

1208.13(b)(1). See also Avetova-Elisseva v. INS, 213 F.3d 1192, 1198 (9th Cir.

3 2000) (evidence of past harm that does not amount to persecution is also relevant

to the reasonableness of Widodo’s fear of future persecution).

4