NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 4 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YONG WU; et al., No. 20-71614 Petitioners, Agency Nos. A201-017-266 A201-017-267 v. A201-017-268 MERRICK B. GARLAND, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 21, 2021 San Francisco, California Before: WATFORD and HURWITZ, Circuit Judges, and BAKER, ** International Trade Judge. Yong Wu, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (BIA) denying his applications 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 M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Page 2 of 5 The BIA’s order upheld the determination of an immigration judge (IJ) that Wu’s testimony was not credible and that he therefore failed to establish eligibility for relief. We grant the petition and remand for further proceedings. 1. The BIA upheld the IJ’s adverse credibility determination based on one inconsistency and four omissions. We conclude that the inconsistency finding is supported by substantial evidence but that the omission findings are not. The IJ and BIA found Wu’s testimony inconsistent with his wife’s testimony as to whether witnesses appeared at Wu’s criminal trial. The record supports that finding. Wu testified at the hearing that none of the witnesses listed in the criminal judgment spoke at the trial or were present in court. His testimony on that point was consistent with the criminal judgment, which stated that the prosecutor “showed” witness “testimonies” to prove the allegations against Wu, and with the country conditions report, which documented that only a small percentage of criminal trials in China involve live witness testimony. Nevertheless, when Wu’s wife testified at the hearing, she stated that there were “quite a lot” of witnesses who were present and spoke at the trial. The IJ gave Wu an opportunity to explain this inconsistency, but Wu stated only that his wife was nervous, that she had not slept well the night before, and that there were many people at the trial but none were witnesses. The IJ and BIA were not required to credit that explanation. Page 3 of 5 By contrast, none of the four omissions that the BIA relied on is supported by substantial evidence. The first three involve details Wu mentioned in his testimony at the hearing that the BIA concluded were omitted from his written submissions. In our view, each of these supposed omissions is either trivial or nonexistent. See Shrestha v. Holder, 590 F.3d 1034, 1043–44 (9th Cir. 2010). First, although Wu’s declarations did not specify that he had been interrogated for seven hours, they did state that he had been interrogated “for long hours” and “for a long time.” …
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