                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 18 2014

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



                            FOR THE NINTH CIRCUIT


GANG WANG,                                       No. 11-70309

              Petitioner,                        Agency No. A099-370-020

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

              Respondent.


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

                        Argued and Submitted July 7, 2014
                              Pasadena, California

Before: NOONAN and BERZON, Circuit Judges, and SABRAW, District Judge.**

       Gang Wang, a native and citizen of the People’s Republic of China, appeals

the decision of the Board of Immigration Appeals (“BIA”) denying his applications

for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”) based on the immigration judge’s (“IJ”) adverse credibility

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Dana M. Sabraw, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
determination. We have jurisdiction under 8 U.S.C. § 1252. We grant Wang’s

petition and remand it to the BIA for further review.

      Because Wang filed his application after May 11, 2005, Wang’s petition is

governed by the credibility and corroboration standards set forth in the REAL ID

Act of 2005. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). The

BIA’s factual findings are reviewed for substantial evidence, while questions of

law are reviewed de novo. Zhang v. Gonzales, 408 F.3d 1239, 1244 (9th Cir.

2005).

      Our review “is limited to the BIA’s decision, except to the extent the IJ’s

opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.

2006) (internal quotation marks omitted). The BIA reviewed the IJ’s adverse

credibility determination for clear error and expressly adopted two of the findings

the IJ articulated in support of that determination.1 They include perceived

discrepancies between Wang’s testimony and that of his former classmate Erchi

Zhang concerning the manner in which the banned books were mailed, as well as




      1
       While the IJ found other perceived discrepancies in Wang’s case, we
consider only those factors that the BIA expressly adopted and relied upon. At oral
argument, counsel for the Attorney General confirmed that the government relies
on only the two inconsistencies that the BIA expressly adopted and that we discuss
here.

                                         -2-
purported inconsistencies between Wang’s testimony and a photograph taken at the

time of his arrest.

       Considering the hearing transcript and Wang’s asylum application together,

we conclude that the BIA’s credibility findings are not supported by substantial

evidence.

       First, the IJ attached special import to Wang’s statement during his

testimony that Zhang had sent the books “without the cover[s].” The IJ presumed

from Wang’s statement that Zhang had “tor[n] the covers off the book[s] and the

title pages,” and concluded that there was a discrepancy because Zhang did not

testify to such details. There is no basis in the record for the IJ’s assumption and,

as the record indicates, Zhang’s testimony about mailing the books was not

inconsistent with Wang’s testimony about receiving the books. Zhang stated that

he did not remember exactly how he packaged the books, but that he “filled [the

package] properly” and “took care of it.” The IJ asked Zhang a follow-up question

as to what other “precautions” he had taken, which Zhang answered by explaining

that he had called Wang to warn him about the package. After this response, in

which Zhang did not expressly rule out having taken further precautions, the IJ did

not press the issue further.




                                          -3-
      Insofar as Zhang’s testimony appeared ambiguous or inconsistent with

Wang’s testimony, the IJ should have afforded Wang an opportunity to address the

perceived inconsistency before making an adverse credibility finding. See Guo v.

Ashcroft, 361 F.3d 1194, 1200 (9th Cir. 2004); He v. Ashcroft, 328 F.3d 593, 602

(9th Cir. 2003). The IJ did not.

      The IJ also found that Wang was not credible on the basis of three alleged

inconsistencies between Wang’s testimony and a photograph taken during Wang’s

arrest. The first two perceived inconsistencies—Wang’s recollection of the

relative height of the officers and what Wang wore to work on the day of his

arrest—are manifestly trivial details upon which a negative credibility finding

cannot be based. See Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir. 2011) (“[A]n

inconsistency must not be trivial and must have some bearing on the petitioner’s

veracity.”). The third perceived inconsistency arose from the IJ’s belief that,

because the picture was taken after the officers had confiscated the books and

escorted Wang out of the building, but before they “reached the car,” the banned

books should have been in the photograph. The IJ, however, ignored Wang’s

testimony that he did not know where the books were placed after the officers

arrested him, and his supposition that they “might [have] be[en] in the car” with

the driver. Moreover, considering that the police vehicle was directly behind the


                                         -4-
officers and the ground is not visible from the photograph, there are myriad

explanations for why the books are not in the photograph. Accordingly, this

purported inconsistency is nothing more than baseless speculation as to what the

Chinese authorities would have done with these books when arresting Wang. See

Ge v. Ashcroft, 367 F.3d 1121, 1125 (9th Cir. 2004).

      Under the totality of the circumstances, the BIA’s adverse credibility

determination unreasonably relied upon details that are trivial in comparison to the

consistent, credible testimony Wang gave when describing his arrest, interrogation,

and detention. As none of the BIA’s proffered reasons constitutes substantial

evidence supporting the adverse credibility determination, and there is not a

“reasonable prospect from the administrative record that there may be additional

reasons upon which the IJ or BIA could rely,” Wang’s testimony shall be deemed

credible on remand. See Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir.

2009).

      Petition for review GRANTED and REMANDED.




                                         -5-
                                                                             FILED
Wang v. Holder, No. 11-70309                                                 AUG 18 2014

                                                                          MOLLY C. DWYER, CLERK
SABRAW, District Judge, concurring in part and dissenting in part:         U.S. COURT OF APPEALS



      I agree that the two findings adopted and relied upon by the BIA to support

the IJ’s adverse credibility determination are not supported by substantial evidence,

and thus, the case should be remanded. I respectfully disagree, however, that

Wang’s testimony should be “deemed credible” on remand, a restrictive measure

that should be employed sparingly and not under the circumstances here. See INS

v. Ventura, 537 U.S. 12, 16 (2002) (when reversing the BIA, “the proper course,

except in rare circumstances, is to remand to the agency for additional

investigation or explanation”).

      Indeed, “no other circuit has adopted this ‘deemed credible’ rule.” Soto-

Olarte v. Holder, 555 F.3d 1089, 1093 (9th Cir. 2009). See, e.g., Castaneda-

Castillo v. Gonzales, 488 F.3d 17, 24-25 (1st Cir. 2007) (en banc) (“The

suggestion may be made . . . that remand gives the agency a second bite at the

apple. The short answer is that, outside criminal prosecutions governed by double

jeopardy principles, second bites are routine in litigation. If the agency decision is

flawed by mistaken legal premises, unsustainable subsidiary findings, or doubtful

reasoning, remanding to give the agency an opportunity to cure the error is the

ordinary course.”); Li v. INS, 453 F.3d 129, 136 (2d Cir. 2006) (similar); Elzour v.


                                          -1-
Ashcroft, 378 F.3d 1143, 1154 (10th Cir. 2004) (similar). “[I]n any case in which

there are doubts about whether there may be other grounds for rejecting credibility,

we should not restrict the BIA or an IJ.” Soto-Olarte, 555 F.3d at 1095. I have

such doubts, particularly where the IJ referenced other discrepancies in the

testimony and counsel for the Attorney General did not have an opportunity to

address those matters, or any other potential discrepancies in the record, either in

its briefing or at oral argument.




                                          -2-
