NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ZHENKUN ZHANG, No. 18-73053 Petitioner, Agency No. A206-533-568 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 28, 2023** San Francisco, California Before: FRIEDLAND, BADE, and KOH, Circuit Judges. Zhenkun Zhang (“Petitioner”), a native and citizen of the People’s Republic of China, seeks review of a decision of the Board of Immigration Appeals (“BIA”) affirming the denial by an immigration judge (“IJ”) of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). * 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). We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition. 1 “We review only the BIA’s opinion, except to the extent that it expressly adopted portions of the IJ’s decision.” Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020) (quoting Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019)). The agency’s factual findings, including adverse credibility determinations, “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013) (“Credibility determinations are reviewed for substantial evidence.”). The BIA upheld the IJ’s adverse credibility determination on three grounds. The second and third grounds were based on omissions and apparent inconsistencies that cannot serve as the basis for the adverse credibility determination because Petitioner was never offered the opportunity to explain them. 2 See Barseghyan v. Garland, 39 F.4th 1138, 1145 (9th Cir. 2022) (“Before 1 Petitioner does not present any arguments challenging the denial of CAT protection and has thus forfeited that claim. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018). 2 The second ground that the BIA held supported finding Petitioner’s testimony not credible was a letter from his ex-wife that corroborated some aspects of his 1993 detention but did not mention injuries he allegedly sustained or that she was forced to abort their child while he was under arrest. The third ground that the BIA held supported finding Petitioner’s testimony not credible was that he testified that he could not move from where he was persecuted, but on cross examination he testified that he lived in Spain from November 2004 until 2007 and traveled to 2 relying upon a purported inconsistency to make an adverse credibility determination, the fact finder must provide the applicant with an opportunity to explain each inconsistency.”); Lai v. Holder, 773 F.3d 966, 974 (9th Cir. 2014). Therefore, only one basis for the adverse credibility determination—the first ground—remains for our review. The first ground that the BIA held supported finding Petitioner’s testimony not …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals