NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YAN JIN, No. 19-70527 Petitioner, Agency No. A208-064-305 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 8, 2023 Pasadena, California Before: MURGUIA, Chief Judge,** and HURWITZ and R. NELSON, Circuit Judges. Dissent by Judge R. Nelson. Yan Jin, a native and citizen of China, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal from an order of an immigration judge (“IJ”) denying asylum and withholding of removal. Although * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** Pursuant to Ninth Circuit General Order 3.2.h, Chief Judge Murguia was drawn by lot to replace Judge Kleinfeld. Chief Judge Murguia has reviewed the record and briefs in this case and listened to the oral argument before the prior panel. stating that nothing in Jin’s demeanor suggested a lack of credibility, the IJ found Jin not credible because of the purported implausibility of several aspects of her testimony and therefore denied relief. We have jurisdiction over Jin’s petition for review under 8 U.S.C. § 1252. We review the agency’s “factual findings, including adverse credibility determinations, for substantial evidence.” Lalayan v. Garland, 4 F.4th 822, 826 (9th Cir. 2021) (cleaned up). Applying that standard, we grant the petition and remand to the BIA for further proceedings. 1. Substantial evidence does not support the agency’s finding that Jin’s credibility was undermined because she withdrew an asylum application to the U.S. Citizenship and Immigration Services (“USCIS”), instead opting to proceed directly to Immigration Court. Neither the BIA nor the IJ explained how this bore on Jin’s credibility, and we discern no reason. Although the BIA stated it was “not clear” why Jin believed withdrawal would expedite her application, Jin expressly explained that she did so under her lawyer’s guidance and because she did not want to continue an already lengthy wait for a USCIS hearing. Notably, the IJ acknowledged that she had seen many other petitioners do the same and failed to articulate any “specific and cogent” reason for disbelieving Jin’s explanation. Id. at 836. 2. Substantial evidence also does not support the agency’s finding that Jin’s account of travelling with a pastor to help North Korean defectors was implausible. 2 Id. at 836–37, 838 (implausibility findings must be “supported by evidence in the record” and “based on reasonable assumptions”). a. The IJ found it “difficult to believe that a pastor would allow a minor to accompany him” on an “indisputably dangerous journey.” But Jin, although perhaps technically a minor, was merely days from turning eighteen at the time of the trip, which entirely consisted of a drive to a town thirty to forty minutes away, waiting in the car for five minutes while the pastor …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals