NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAR 26 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MINGGUO CHEN,                                   No.    17-71603

                Petitioner,                     Agency No. A088-283-388

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

                Respondent.

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

                     Argued and Submitted February 13, 2020
                              Pasadena, California

Before: BERZON, R. NELSON and LEE, Circuit Judges.

      Petitioner MingGuo Chen seeks review of the Board of Immigration

Appeals’s (“BIA”) decision to affirm the immigration judge’s (“IJ”) denial of his

application for asylum. We grant Chen’s petition and remand for further

proceedings.

      1. The BIA affirmed the IJ’s adverse credibility determination based on five

grounds: (1) it found implausible the fact that Chen would marry in 1997 and wait


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
to register his marriage until 2005; (2) it found nonresponsive Chen’s answers to

the IJ’s questions about when he arranged to come to the United States; (3) it found

inconsistent Chen’s testimony about his knowledge of his wife’s reasons for

having the abortion; (4) it found inconsistent Chen’s statements about whether he

had been required to obtain a permit for the birth of his first child; and (5) it found

inconsistent Chen’s testimony as to when he learned about his wife’s abortion and

whether he had discussed the abortion with his wife. None of these grounds is

supported by substantial evidence in the record.

       The record of Chen’s merits hearing indicates that his ability to testify was

substantially impeded. Chen possesses a second-grade education and is “very

illiterate.” See Arulampalam v. Ashcroft, 

, 680, 687 (9th Cir. 2003).

He speaks, but cannot write, in a dialect known as Fuqing. And even though he

can only “barely understand” Mandarin, the hearing was conducted through a

Mandarin interpreter. It is apparent from the transcript that the interpreter made

numerous translation errors that seriously confused Chen’s testimony. See He v.

Ashcroft, 

, 596 (9th Cir. 2003). These difficulties were amplified by

the IJ’s open hostility to Chen; she interrupted and intimidated him throughout,

repeatedly accusing him of lying but mischaracterizing his testimony. See

Garrovillas v. I.N.S., 

, 1015 (9th Cir. 1998). The five bases for the

agency’s adverse credibility determination must be reviewed against this backdrop.

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      First, Chen plausibly explained the delay between his wedding and

registration of his marriage when he clearly stated that he could not have registered

the marriage during its first two years due to his age and that he had no practical

need to register the marriage until six more years had passed, when registration

was required to enroll his daughter in school. Given Chen’s reasonable

explanation for the delay, the agency’s speculative finding of implausibility was

not supported by the record. See 

; Singh v. I.N.S., 

, 1025 (9th Cir. 2002).

      Next, the agency found Chen nonresponsive as to precisely when he

arranged to come to the United States. But he did respond, testifying that he

remembered the year but not the month. The IJ’s insistence that Chen remember

the exact month, ten years before his hearing, when he began making his travel

arrangements suggests a “predisposition to discredit” Chen’s testimony,

particularly in light of the IJ’s “impatience and hostility toward [Chen], bullying

and haranguing him from the inception of the hearing to its conclusion.”

.

      The three inconsistencies on which the IJ and BIA relied are similarly

unsupported by substantial evidence. First, Chen was not inconsistent as to his

knowledge of his wife’s reasons for having the abortion. Chen was consistently

clear that his wife had the abortion to secure the release of his parents. That Chen

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could not explain with more specificity why his wife prioritized his parents’ needs

over her interest in continuing her pregnancy, a dilemma he specifically noted

when explaining his own initial uncertainty, does not undermine his consistency.

See Zahedi v. I.N.S., 

, 1167 (9th Cir. 2000).

      Likewise, Chen did not contradict himself about the need for a permit for the

“early birth.” Chen repeatedly insisted that a permit was required, although he did

not know why this was the case. He later said that he did not need to “apply” for a

permit, after forceful questioning by the IJ about whether he had been expected to

“apply” for one. But that is different from saying that he did not need to obtain a

permit or else pay a retroactive fee, which is what happened. Moreover, even if

one viewed Chen’s testimony as contradictory, a rural farmer of Chen’s education

level could not reasonably be expected to testify with perfect clarity as to China’s

birth permit requirements. See 

. Given the language

difficulties, together with the IJ’s “impatien[ce], hostil[ity], and hectoring”

regarding the point (especially after Chen repeatedly stated his lack of

understanding of the permitting process), Chen’s testimony on this issue is more

fairly explained as a response to the badgering than as a botched attempt to deceive

the agency. See 

.

      Finally, Chen’s testimony regarding whether and when he discussed the

abortion with his wife and whether and when he knew about the abortion is

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confused but not inconsistent. Chen’s testimony alternated between addressing

two different points in time: when he spoke to his wife before she turned herself in,

and when he proved unable to stop the abortion because his wife was in custody.

Chen testified about a pre-abortion discussion with his wife, his lack of knowledge

as to the exact moment she decided to turn herself in, his inability to talk with her

once she was in custody, and his absence from home on the date of the abortion

itself. Neither the questions nor the answers were clear about which time period

was being addressed. Chen’s testimony is more fairly described as “disjoint[ed]

and incoheren[t]” than as inconsistent, and it cannot support an adverse credibility

determination. See Abovian v. I.N.S., 

, 979 (9th Cir. 2000) (quotation

marks and citation omitted).

      2. The agency also refused to credit three documents that supported Chen’s

testimony, questioning their authenticity and reliability instead of factoring their

corroborating force into the agency’s credibility determination. This refusal was

unwarranted, particularly in light of the language and educational difficulties

discussed above. Chen explained generally when and why the documents were

issued. That he was unable to define terms of art or to recall, nearly twelve years

later, the precise date of issuance of the documents is within “the normal limits of

human understanding and memory [which] may make some … lack of recall

present in any witness’s case.” Shrestha v. Holder, 

, 1044-45 (9th

                                           5
Cir. 2010). “Testimonial vagueness” is not a sufficient reason to reject documents

issued by a foreign government. 

. Where there is no

evidence in the record indicating how similar documents would ordinarily appear

or be issued, suspicion of the documents based on their appearance without more is

speculation and thus not a permissible reason to reject their corroborating force.

Lin v. Gonzales, 

, 1163 (9th Cir. 2006).

      The petition for review is GRANTED and the case is REMANDED to the

BIA for further proceedings.




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Mingguo Chen v. William Barr, No. 17-71603                                 FILED
R. NELSON, Circuit Judge, Dissenting:                                       MAR 26 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
      I respectfully dissent.

      Under the REAL ID Act’s restrictive standard of review for an IJ’s adverse

credibility determinations, and because such determinations are “findings of fact,”

Singh v. Lynch, 

, 974 (9th Cir. 2015), the IJ’s determination here is

“conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B). “Only the most extraordinary

circumstances will justify overturning an adverse credibility determination.”

Shrestha v. Holder, 

, 1041 (9th Cir. 2010) (internal quotation marks

omitted).

      The majority fails to appropriately apply this standard of review. Substantial

evidence review is not de novo review of the totality of the circumstances. Rather,

it is a highly deferential standard that requires upholding the adverse credibility

finding “so long as even one basis is supported by substantial evidence,” Jiang v.

Holder, 

, 738 (9th Cir. 2014) (quotation omitted), regardless of

whether the inconsistency goes to the heart of the applicant’s claim.

supports the agency’s adverse credibility determination

here. Chen testified that he did not discuss the abortion decision with his wife

before she obtained the abortion, but rather that he “learned [about it] after [he]
returned back” from working. He also testified that he did not know why she

decided to get an abortion. However, he later testified inconsistently that he had

communicated to his wife prior to the abortion that he “was reluctant to have her

have [an] abortion,” and that he opposed her decision to turn herself in, but that she

responded to him that getting an abortion was necessary to “satisfy the

government” because Chen’s “parents were in custody.” The IJ gave Chen an

opportunity to explain the inconsistency, to which Chen’s explanation was simply

that he could not “remember it clearly.” While Chen’s testimony was often

disjointed because of an apparent language barrier, a reasonable adjudicator would

not be compelled to conclude that his testimony about whether he discussed the

abortion decision with his wife before the abortion, and whether he knew why she

decided to get an abortion, was credible.

      Although the majority’s explanations for Chen’s inconsistency may be

plausible, they do not rise to the level such that “any reasonable adjudicator would

be compelled to conclude to the contrary.” § 1252(b)(4)(B).

      Accordingly, I respectfully dissent.




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