NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DESHENG LIU, No. 16-72283 Petitioner, Agency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 ...
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