                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 12 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

YOUGUANG CHENG,                                  No. 10-71507

              Petitioner,                        Agency No. A097-881-410

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted February 6, 2014**
                               Pasadena, California

Before: PREGERSON, MURPHY***, and BERZON, Circuit Judges.

       Youguang Cheng, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s



        *
             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).
        ***
            The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
(“IJ”) decision denying his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). We have jurisdiction

pursuant to 8 U.S.C. § 1252. We review factual findings for substantial evidence,

Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008), and we grant the petition

for review.

      1.      The BIA’s adverse credibility determination is not supported by
              substantial evidence.

      Substantial evidence does not support the BIA’s adverse credibility

determination, which was based on perceived inconsistencies in Cheng’s testimony

and asylum application regarding his first alleged incident with the police. Any

inconsistency concerning precisely where on his upper body—whether on his

shoulder or neck—Cheng was beaten by the police with a baton is minor. See

Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003) (minor

inconsistencies that do not go to the heart of the claim are insufficient to support an

adverse credibility finding). Likewise, Cheng’s testimony that the baton was

electrified, which was not set forth in his asylum application, does not support an

adverse credibility finding. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.

1996) (“[A]n applicant’s testimony is not per se lacking in credibility simply

because it includes details that are not set forth in the asylum application.”).



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Moreover, in his asylum application, Cheng used the words “slapped” and “beat”

interchangeably; there is no inconsistency with his hearing testimony in which he

stated that he was beaten, but did not specifically testify that he was slapped.

      Similarly, substantial evidence does not support the BIA’s adverse

credibility finding based on perceived inconsistencies in Cheng’s testimony and

asylum application regarding his second alleged incident with the police. In his

direct and cross examination, Cheng clarified that during his second alleged

incident with police, he was beaten with an electric baton once—not more than

once, as he stated in his asylum application. He was not asked why he stated in his

asylum application that he was shocked with the electrified baton more than once.

Because he was not asked to explain why his testimony was different from his

asylum application, this perceived inconsistency cannot support an adverse

credibility finding. See Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir.

2009). Moreover, where an asylum applicant “gives one account of persecution

but then revises his story so as to lessen the degree of persecution he experienced

rather than to increase it, the discrepancy generally does not support an adverse

credibility finding.” Stoyanov v. INS, 172 F.3d 731, 736 (9th Cir. 1999) (internal

quotation marks omitted).




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      We also note that there were major problems with the translator at Cheng’s

hearing, despite the IJ’s finding to the contrary. Even if Cheng understood the

translator, the translator apparently did not understand Cheng at times and he failed

to translate Cheng’s entire testimony.1 We find the translation errors troubling, and

note that they may well account for some of the confusion in Cheng’s testimony.

See Mendoza Manimbao, 329 F.3d at 662 (“[W]e have long recognized that

difficulties in interpretation may result in seeming inconsistencies, especially in

cases, such as this, where there is a language barrier.”); He v. Ashcroft, 328 F.3d



      1
         For example, when Cheng was asked by government counsel how he
arrived in the United States, he was translated as saying all the following: (1) he
flew from Hong Kong to Russia to Cuba; (2) there was a transit “layoff” in Cuba
on the way from Hong Kong to Russia; (3) he flew from Hong Kong to Cuba to
Moscow; (4) and, again, he flew from Hong Kong to Russia to Cuba. When asked
if he went “from Hong Kong to Russia to Cuba, and back to Russia,” he replied in
the affirmative. When asked where he flew after the second time he was in Russia,
Cheng replied that he did not go back to Russia, but went “to Moscow and then
crossed the border to San Diego.” Immediately after stating that he understood the
translator, Cheng again affirmed that he flew from Russia to Cuba and back to
Russia. It was not until Cheng’s attorney stepped in, that it was extrapolated that
Cheng was saying “Mexico,” not “Moscow.” The interpreter acknowledged that
he thought Cheng had said “Moscow,” not “Mexico.”
       More disturbingly, at one point in the hearing, the translator failed to
translate Cheng’s entire testimony. Evidently believing that Cheng had responded
at greater length than the translator related, the IJ asked the translator if Cheng said
anything else. The translator answered that he recited “basically what Cheng
said.” Even after the IJ admonished the translator for failing to relate Cheng’s
entire testimony, the IJ again caught the translator omitting part of Cheng’s
statement.

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593, 598 (9th Cir. 2003) (“[F]aulty or unreliable translations can undermine the

evidence on which an adverse credibility determination is based.”).

      The BIA affirmed on the basis of the IJ’s adverse credibility finding alone,

and did not make a determination on the merits of Cheng’s asylum and

withholding of removal claims. Because we find that substantial evidence does not

support the BIA’s adverse credibility determination, we remand to the BIA to

address the merits of Cheng’s asylum and withholding of removal claims. See

Tekle, 533 F.3d at 1056.

      2.    The BIA and IJ failed to consider country conditions when finding
            Cheng ineligible for CAT relief.

      Finally, there is no indication that either the IJ or the BIA considered

evidence of country conditions when they determined that Cheng was ineligible for

CAT relief. Failure “to consider evidence of country conditions constitutes

reversible error.” Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010).

We note that the 2007 Country Report on China describes the Chinese

government’s crackdown on Falun Gong activity, including torturing, imprisoning,

and killing thousands of current and former Falun Gong adherents. Falun Gong

members and their families were among those specifically targeted for arbitrary




                                          5
arrest and detention. We therefore remand with instructions to the BIA to

reconsider Cheng’s CAT claim in light of the country conditions in China. Id.

PETITION FOR REVIEW GRANTED and REMANDED.




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