                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 16 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

XINGLI WANG,                                    No.    15-70508

                Petitioner,                     Agency No. A095-022-735

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

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

                               Submitted June 14, 2019**
                                 Pasadena, California

Before: WARDLAW, BYBEE, and MILLER, Circuit Judges.

      Xingli Wang, 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 Wang’s application for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). We have jurisdiction pursuant to 8



      *
             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).
U.S.C. § 1252. We grant the petition for review and remand the case to the BIA.

      1.     The BIA’s adverse credibility determination cannot be meaningfully

reviewed because the administrative record is missing a large portion of the

hearing transcript, including testimony critical to the adverse credibility

determination. The BIA erred in concluding, “[T]he Immigration Judge provided a

detailed summary of the testimony in her decision, the respondent does not contest

the summary provided by the Immigration Judge, and we find the record sufficient

for our review.” To the contrary: Wang did contest the characterization of his

testimony in front of the BIA. He argued in his appeal brief to the BIA, “While the

Court was of the belief that he was attempting to buy time in delaying his

responses, there is nothing to suggest such was the case in respondent’s situation.”

Wang further argued that he “was somewhat confused with the numbers and

dates,” and the BIA instead found Wang “non-responsive” and “evasive.” Because

the BIA relied on the testimony that was not recorded in reaching that conclusion,

our inability to review the transcript prevents us from determining whether

substantial evidence supports the BIA’s conclusion. “While the substantial

evidence standard demands deference to the IJ, we do not accept blindly an IJ’s

conclusion that a petitioner is not credible. Rather, we examine the record to see

whether substantial evidence supports that conclusion and determine whether the

reasoning employed by the IJ is fatally flawed.” Gui v. I.N.S., 280 F.3d 1217, 1225


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(9th Cir. 2002) (internal quotation and alteration marks omitted). If Wang is

deemed credible, his claims may merit relief under Guo v. Sessions, 897 F.3d 1208

(9th Cir. 2018).

      2.     Even if we were to assume that the BIA’s credibility determination

was correct, the BIA committed legal error by basing the denial of CAT relief on

the adverse credibility finding alone and failing to consider other evidence like

country conditions reports. Kamalthas v. I.N.S., 251 F.3d 1279, 1283 (9th Cir.

2001).

      PETITION GRANTED; REMANDED.




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                                                                        FILED
Wang v. Barr, No. 15-70508                                               JUL 16 2019
                                                                     MOLLY C. DWYER, CLERK
MILLER, Circuit Judge, dissenting:                                    U.S. COURT OF APPEALS



       The court has identified arguments that might have allowed Wang to prevail

if he had raised them before the Board of Immigration Appeals. But because Wang

failed to exhaust those claims by presenting them to the Board, we lack jurisdiction

to grant relief.

       Congress has directed that “administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B). Here, the Immigration Judge found Wang to

be not credible, and the Board upheld that finding. The portion of the hearing

transcript available to us demonstrates that Wang gave evasive and contradictory

answers about the date of his wife’s retirement, and his testimony about when he

was fired from his job was inconsistent with the documentary evidence that he

submitted. The record supports the IJ’s assessment. It does not compel a finding

that Wang was credible.

       Like my colleagues, I am troubled that only part of the hearing transcript is

available for our review, and I believe that the agency likely committed legal error

by failing to produce a complete transcript. Congress has required the agency to

maintain “a complete record . . . of all testimony and evidence produced at the

proceeding.” 8 U.S.C. § 1229a(b)(4)(C). And courts have noted that the failure to


                                          1
produce a complete transcript may amount to a violation of due process if it causes

prejudice to the petitioner. See, e.g., Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st

Cir. 2005); Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir. 1993). But whether

based on statutory or constitutional grounds, a claim of error arising from the

failure to maintain a transcript is no different from any other claim of procedural

error before the agency: a petitioner must present it to the Board before seeking

judicial review. See 8 U.S.C. § 1252(d)(1); Sola v. Holder, 720 F.3d 1134, 1135

(9th Cir. 2013) (per curiam); Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th Cir.

2001). Wang did not do so.

      The exhaustion requirement makes good sense here. Had Wang complained

to the Board about the incompleteness of the transcript, the Board would have been

better positioned than we are to assess whether the deficiency caused any

prejudice—that is, whether it is reasonably likely “that a complete and accurate

transcript would have changed the outcome of the case.” Ortiz-Salas, 992 F.2d at

106. If the Board concluded that the incompleteness of the transcript was

prejudicial to Wang’s case, it could have ordered a rehearing, saving both the

government and Wang the months of delay occasioned by proceedings in this

court. But Wang did not raise the issue, and we lack jurisdiction to consider it.

      To be sure, the Board recognized in a footnote that part of the transcript was

missing, and it stated that “we find the record sufficient for our review.” But that


                                          2
does not mean Wang preserved—or that the Board considered—any argument that

the incompleteness of the transcript might be a basis for a remand. Although Wang

took issue with the inferences the IJ drew from his testimony—for example, by

disputing the finding that he was “attempting to buy time in his responses”—Wang

did not suggest that the IJ had inaccurately summarized what he said. Indeed,

Wang’s brief to the Board did not even mention the incompleteness of the

transcript. The Board correctly recognized that Wang “does not contest the

summary provided by the Immigration Judge,” which is why it understandably

proceeded to review the case on the basis of that summary. In remanding to the

Board, the court grants Wang process that he chose to forgo.

      Nor is a remand required for the Board to reevaluate Wang’s claim for relief

under the Convention Against Torture. In Kamalthas v. INS, 251 F.3d 1279 (9th

Cir. 2001), we held that the Board must consider probative evidence of country

conditions that bears on the likelihood that an applicant will be subject to torture if

returned to his home country. But Kamalthas does not require the agency to

address secondary evidence that is not relevant. Here, the country-conditions report

is not probative of anything specific to Wang. See Dhital v. Mukasey, 532 F.3d

1044, 1051 (9th Cir. 2008) (explaining that “the petitioner must demonstrate that

he would be subject to a ‘particularized threat of torture’” to obtain CAT relief)

(citation omitted). When there is an adverse credibility finding and a petitioner


                                           3
relies on secondary evidence to demonstrate eligibility for relief under the CAT,

the petitioner must show that “the State Department reports, standing alone,

compel the conclusion that petitioner is more likely than not to be tortured upon

return.” Konou v. Holder, 750 F.3d 1120, 1125 (9th Cir. 2014) (citation and

alterations omitted). Wang cannot satisfy that standard: although he claims that he

will be tortured because of his Christian faith, the record does not compel the

conclusion that he is a Christian, or that he has suffered torture, or that the Chinese

authorities have any interest in him that would create a particularized threat of

torture. Adding the country-conditions report does not tilt the scales. See

Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006) (“Although the reports

confirm that torture takes place in Yemen, they do not compel the conclusion that

Almaghzar would be tortured if returned. Therefore, we defer to the IJ and BIA’s

determination that relief under the CAT is unavailable.”).

      In any event, whatever the merits of the country-conditions argument, it is

not properly before us because Wang did not mention the country-conditions report

in his brief to the Board. Indeed, he did not specifically argue for CAT relief at all.

He therefore failed to exhaust any claim based on the CAT. See Abebe v. Mukasey,

554 F.3d 1203, 1207-08 (9th Cir. 2009) (en banc). The Board can hardly be faulted

for not discussing a report that was never called to its attention.




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