FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LIZHI QIU; XIAOJIE WU, No. 17-71338 Petitioners, Agency Nos. v. A087-876-023 A087-876-024 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 14, 2019 Pasadena, California Filed December 11, 2019 Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and James Donato,* District Judge. Opinion by Judge Graber * The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. 2 QIU V. BARR SUMMARY** Immigration The panel granted a petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum and related relief, and remanded, holding that substantial evidence did not support the IJ’s adverse credibility determination. The panel held that in making the adverse credibility determination, the IJ erred by relying, in part, on an asylum officer’s assessment of petitioner’s credibility. Noting that an asylum officer’s Assessment to Refer merely sets in motion a merits hearing at which an IJ takes evidence and makes independent findings concerning that evidence, the panel held that an IJ may not rely on an asylum officer’s subjective conclusions about a petitioner’s demeanor or veracity at an earlier interview. The panel also noted that the asylum officer’s suspicion that petitioner was feigning illness at her asylum interview was pure speculation, which cannot support an adverse credibility finding in any event. The panel held that the IJ erred by relying on omissions in detail from petitioner’s asylum statement to conclude that she was not credible. The panel explained that where, as here, a petitioner’s testimony was consistent with, but more detailed than, her asylum application, the petitioner’s testimony is not “per se” lacking in credibility. The panel concluded that it was not reasonable for the IJ to find ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. QIU V. BARR 3 petitioner less credible merely because her statement did not identify the specific date of her forced abortion or the names of the family planning director and hospital staff who were involved. The panel held that the record did not support the IJ’s finding that petitioner testified inconsistently about why she did not participate more fully in her asylum interview, and whether she requested that her case be forwarded to immigration court, and that even if there were any discrepancies, petitioner provided a reasonable and plausible explanation for such discrepancies, which in any event were too trivial to support an adverse credibility determination. The panel held that the IJ erred by relying on impermissible speculation in concluding that petitioner lied about her residence being in California so that she could apply through the “backlogged” immigration court in Los Angeles and delay her application. The panel also held that the IJ should have given petitioner notice and an opportunity to explain ...
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