Ming Shu Piao v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MING SHU PIAO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-71540
Agency No. A088-483-669
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2016**
Pasadena, California
Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.
Ming Shu Piao (“Piao”), native and citizen of China, petitions for review of
the Board of Immigration Appeals (“BIA”) decision. The decision affirmed an
Immigration Judge’s (“IJ”) denial of her applications for asylum, withholding of
removal, and withholding of removal under the Convention Against Torture. The
FILED
APR 04 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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BIA affirmed the IJ’s denial of relief on grounds of adverse credibility and lack of
corroborating evidence. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1),
grant the petition for review, and remand the case to the BIA.
1. We review adverse credibility findings for substantial evidence and will
uphold such findings unless a reasonable fact-finder would be compelled to conclude
otherwise. Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir. 2006). In a post-REAL
ID Act case such as this one, an adverse credibility determination is based on the
totality of the circumstances. See Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th
Cir. 2010). “Where, as here, the BIA has reviewed the IJ’s decision and incorporated
portions of it as its own, we treat the incorporated parts of the IJ’s decision as the
BIA’s.” Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).
2. Substantial evidence does not support the BIA’s adverse credibility
determination regarding Piao’s claim of forced abortions. First, Piao’s lack of
memory or inability to testify to every detail of her twenty-year-old divorce
certificate does not diminish the authenticity of the divorce certificate. Zahedi v.
INS, 222 F.3d 1157, 1165 (9th Cir. 2000) (“Testimonial vagueness and
inconsistency are not reasons that bear a legitimate nexus to the rejection of
documents . . . .”). The certificate is internally consistent with all of her other
supporting documentation, was sent for a forensics check, and was provided to the
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judge without objection by the government attorney. See Wang v. Ashcroft, 341
F.3d 1015, 1021 (9th Cir. 2003) (finding documentary support credible where
“there was no opposition to the introduction or challenge to the authenticity of
these documents by the INS,” even where the IJ found the documents
unbelievable). Given Piao’s consistent testimony, and the uncontested validity of
her evidence, her forgetfulness is the type of “trivial inconsistenc[y] that under the
total circumstances ha[s] no bearing on petitioner's veracity [and] should not form
the basis of an adverse credibility determination.” Shrestha, 590 F.3d at 1044.
Second, substantial evidence does not support the BIA’s affirmance of the
IJ’s finding that Piao failed to provide “easily obtainable” documents from China.
Prior to the merits hearing, Piao was not given any notice as to specific
corroborating documents the IJ wished to see and was never subsequently given
the opportunity to explain why they might not be readily available. Ren v. Holder,
648 F.3d 1079, 1090–92 (9th Cir. 2011). Moreover, there is no evidence, other
than the IJ’s and BIA’s assertions, that these documents were readily available
from family members. See Sidhu v. INS, 220 F.3d 1085, 1091–92 (9th Cir. 2000)
(“[I]t is inappropriate to base an adverse credibility determination on an applicant’s
inability to obtain corroborating affidavits from relatives or acquaintances living
outside of the United States—such corroboration is almost never easily
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available.”), as amended on denial of reh’g (Sept. 27, 2000).
3. Substantial evidence does not support the BIA’s adverse credibility
determination regarding Piao’s claim of religious persecution. Absent the finding
of adverse credibility, the IJ would have found Piao suffered from past persecution
related to her religious beliefs. The IJ held, however, that Piao’s claim of religious
persecution was largely uncorroborated and suffered from inconsistencies in
details, a holding with which the BIA agreed. In all instances, the IJ and BIA either
mischaracterized Piao’s testimony or failed to address her reasonable explanations.
First, the IJ and BIA were incredulous as to Piao’s willingness and ability to
get a Chinese passport—presumably to flee the country—when she was under the
thumb of government surveillance after arrest for her Christian practice. The IJ and
BIA mischaracterized, however, the level of surveillance Piao suffered. Only a
single line in Piao’s asylum declaration could ostensibly support finding that Piao
was “forbidden” from leaving her home. The line was taken out of context. Piao
consistently testified that she was not allowed to leave her local area, not that she
was under house arrest. See Shrestha, 590 F.3d at 1040 (“[A]n IJ [can] not cherry
pick solely facts favoring an adverse credibility determination while ignoring facts
that undermine that result.”). Moreover, Piao obtained her passport from another
office in the same building where she had to regularly check in with the police, a
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fact the IJ and BIA could not believe. But they ignored Piao’s explanation that
passports are issued by a separate administrative body, distinct from the police
office where she was required to check in. The IJ and BIA rejected Piao’s
reasonable explanation, instead relying on speculation as to how various aspects of
Chinese administrative bodies interact. See Shah v. INS, 220 F.3d 1062, 1071 (9th
Cir. 2000) (“Speculation and conjecture cannot form the basis of an adverse
credibility finding . . . .”). Finally, neither the IJ nor BIA inquired as to why Piao
might obtain a passport for reasons other than to leave the country (e.g., as a proper
form of identification); and both the IJ and BIA ignored the fact that Piao sought a
passport for a different reason than to leave the country, as evidenced by her use of
a fake passport to flee to the United States.
Second, both the IJ and the BIA raised issues with Piao’s familiarity with
Christian doctrine, but the issues raised are based on mischaracterizations of Piao’s
testimony. The IJ chided Piao for testifying that Christmas celebrates the arrival of
Santa Claus and for not knowing who Jesus Christ was. Piao clearly testified that
Christmas also celebrates the birth of Jesus Christ, who she said was the Son of
God—two statements completely overlooked by the IJ. See Ren, 648 F.3d at 1088
(“In general, questioning an applicant on his knowledge of religious doctrine to
determine if he is a true believer is not an appropriate method of determining
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eligibility for asylum.”). The BIA also emphasized Piao’s “admitted unfamiliarity
with her own faith” and “church doctrine.” In doing so, the BIA misread Piao’s
testimony: Piao admitted a lack of familiarity only with the Korean-American
Christian church she attended in the United States.
Third, the BIA dismissed a letter provided by a Korean-American pastor on
Piao’s behalf, because Piao purportedly could not identify the pastor’s Korean
name when she used the Mandarin translation. Piao is a native of China, but
ethnically Korean, and Piao had consistently translated Korean names into
Mandarin throughout the merits hearing. Yet the IJ never gave Piao the opportunity
during trial to offer an explanation as to any perceived discrepancy in the pastor’s
name.
4. We hold that the IJ and BIA erred in their credibility assessments and
find that any adverse credibility determination must be revisited in light of the
issues identified in this memorandum disposition. Accordingly, we grant the
petition for review regarding Piao’s claims for asylum, withholding of removal,
and relief under the Convention Against Torture. If additional corroborative
evidence is deemed necessary for Piao to carry her burden of proof, then the Ren
notice requirements must be followed. See Ai Jun Zhi v. Holder, 751 F.3d 1088,
1095 (9th Cir. 2014).
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Petition for review GRANTED. REMANDED for further proceedings
consistent with this disposition.
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