Shaohui Chen v. MATTHEW G. WHITAKER, Acting Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAOHUI CHEN,
Petitioner,
v.
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
No. 15-73364
Agency No. A074-595-840
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 3, 2018
Pasadena, California
Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,** District
Judge.
Shaohui Chen, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s
(IJ) denial of his claims for relief from removal. We have jurisdiction pursuant to
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
FILED
JAN 10 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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8 U.S.C. § 1252. We grant the petition for review.
The BIA found that the IJ’s adverse credibility determination that formed the
basis for the IJ’s denial of Chen’s application for asylum and withholding of
removal was not clearly erroneous.1 We disagree. First, the IJ and BIA committed
legal error by evaluating Chen’s testimony without regard to the nature of the
claim he asserted and without mentioning, much less applying, our precedent
governing asylum claims premised on opposition to coercive family planning
practices. See, e.g., Ming Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018); Nai Yuan
Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010). Second, the IJ’s adverse
credibility decision was contradicted by the record and not supported by substantial
evidence. See Shire v. Ashcroft, 388 F.3d 1288, 1294 (9th Cir. 2004) (“Where, as
here, the BIA adopts the IJ’s credibility determination, we look through the BIA’s
decision to examine the IJ’s reasons for deeming the person not credible.”).
The IJ found that Chen’s “testimony regarding the gynecological problems
his wife had, which he claimed caused him to be targeted for sterilization in her
stead, was vague, vacillating, speculative, and uncorroborated.” However, Chen
actually testified that neither he nor his wife wanted her to be sterilized once the
doctor prohibited his wife’s sterilization based on medical concerns. In addition,
1 Chen did not appeal the denial of his claim for relief under the Convention
Against Torture to the BIA. Consequently, he has waived that ground for relief
before us. See 8 U.S.C. § 1252(d)(1).

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the IJ failed to consider the entire record, assessing only part of Chen’s explanation
for how he knew that sterilization would be harmful to his wife. And the IJ also
erred by placing great weight on “trivial inconsistencies” in Chen’s testimony. See
Bingxu Jin v. Holder, 748 F.3d 959, 965 (9th Cir. 2014) (explaining that “trivial
inconsistencies” that “have no bearing on the petitioner’s veracity” cannot form the
basis for an adverse credibility determination (internal quotations and citations
omitted)).
The IJ’s finding that Chen testified inconsistently about his actions after the
birth of his son was unsupported by the record. Chen provided a clear timeline in
his testimony. He testified that his second child was born in November 2006, then
the family planning officials visited his house, then he paid the fine required by
those officials in December 2006, then he registered his son in February 2007, and
then they went into hiding that same month. The BIA also engaged in
“impermissible speculation” when it determined that Chen’s wife would not have
gone to the hospital if they had really been in hiding. Ge v. Ashcroft, 367 F.3d
1121, 1126 (9th Cir. 2004).
Finally, the IJ’s determination that Chen’s explanation of his arrival into the
United States at the Houston airport was “vague and ‘highly questionable’
testimony” was speculative and disregarded the totality of the evidence. The
record included evidence that it was highly improbable that the smugglers who

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detained Chen for seven months immediately leading up to his arrival in Houston,
a fact the IJ did not question, would have explained to Chen their means for
smuggling him into the United States. See Shire, 388 F.3d at 1295–96. Moreover,
the government’s own allegation that Chen entered without inspection supports
Chen’s testimony that he did not encounter immigration officials until hours after
leaving the airport.
Because the BIA’s adverse credibility determination was not supported by
substantial evidence, we grant the petition and remand to the BIA to evaluate
Chen’s claims for asylum and withholding of removal, taking his testimony as true,
in compliance with 8 U.S.C. § 1101(a)(42) and applying legal precedent as to
China’s coercive population control policies.
PETITION GRANTED; REMANDED.

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