NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 5 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TIEYUAN CHEN, No. 15-72130 Petitioner, Agency No. A205-181-023 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 3, 2023** Before: OWENS, LEE, and BUMATAY, Circuit Judges. Tieyuan Chen, a native and citizen of China, petitions for review of a Board of Immigration Appeals (“BIA”) decision denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We remand for a totality of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). circumstances review of the BIA’s adverse credibility finding because the BIA’s second and third reasons for finding Chen not credible are improper. To determine whether an adverse credibility determination is supported by substantial evidence, we must review the inconsistencies and omissions that formed the basis of the BIA’s decision. Li v. Garland, 13 F.4th 954, 960-61 (9th Cir. 2021). “When the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, our review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (internal quotation omitted). Here, the BIA adopted only some of the findings underlying the IJ’s adverse credibility determination. In particular, the BIA expressly relied on two omissions and one inconsistency: (1) Chen’s omissions concerning the family planning office’s (“FPO”) treatment of her husband, (2) Chen’s omissions concerning the FPO’s surveillance of her family, and (3) inconsistencies in Chen’s documentary evidence—specifically, the name of the hospital in her medical records. The BIA also held that because her corroborating evidence was inconsistent, it was “insufficient to overcome her incredible testimony and satisfy her burden of proof.”1 1. Although Chen’s omissions about the FPO’s treatment of her husband 1 The court does not address this issue because it is remanding the adverse credibility finding back to the BIA for a totality of circumstances review. 2 support the BIA’s adverse credibility determination, the other omissions and inconsistences do not. See Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (holding that “under the REAL ID Act, credibility determinations are made—and must be reviewed—based on the totality of the circumstances and all relevant factors, not a single factor” (cleaned up)). First, the BIA improperly weighed Chen’s omissions concerning the FPO’s surveillance of her family by inappropriately discounting her explanation for these omissions. The BIA held that Chen’s omission of the FPO’s surveillance of her family is entitled to “great weight in assessing her credibility” because those facts are “predicated on the persecution she allegedly suffered …
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