                                                                           FILED
                            NOT FOR PUBLICATION                            APR 15 2014

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



                            FOR THE NINTH CIRCUIT


GUI HUA DONG,                                    No. 08-73489, 10-70006

              Petitioner,                        Agency No. A096-191-828

  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 December 3, 2013
                              Pasadena, California

Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.

       In these consolidated petitions for review, Gui Hua Dong, a native and

citizen of China, petitions for review of the orders of the Board of Immigration

Appeals (“BIA”) denying her untimely motion to reopen (Petition No. 10-70006),

and dismissing her appeal from an Immigration Judge’s (“IJ”) decision denying her

application for asylum, withholding of removal, and protection under the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Convention Against Torture (“CAT”) (Petition No. 08-73489). We deny Dong’s

petition for review as to her untimely motion to reopen, and we grant Dong’s

petition for review as to the BIA’s denial of asylum, withholding of removal, and

CAT relief.

I. Motion to Reopen Petition (No. 10-70006)

      On appeal to this court, Dong neglected to challenge the BIA’s

determination that she failed to submit evidence of changed country conditions in

China in her untimely motion to reopen. This issue is therefore waived and this

petition for review is denied. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60

(9th Cir. 1996).

II. Merits Petition (No. 08-73489)

      Dong also petitions for review of the BIA’s decision dismissing her appeal

from the IJ’s denial of asylum, withholding of removal, and CAT relief. “We

review . . . adverse credibility finding[s] under the substantial evidence standard.”

Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). We conclude that substantial

evidence does not support the BIA’s adverse credibility determination in this pre-

REAL ID Act case.

      1. The BIA’s determination that Dong’s Falun Gong claim was not credible

is not supported by substantial evidence. First, although Dong did not mention in


                                          2
her asylum declaration that she was beaten while in detention during her first

arrest, “the mere omission of details is insufficient to uphold an adverse credibility

finding.” Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000). Moreover, the

BIA and IJ put themselves in Dong’s shoes and determined what they thought

someone in Dong’s situation would include in her asylum application. That is

prohibited. Id. (“[T]he IJ’s subjective view of what a persecuted person would

include in [her] asylum application has no place in an adverse credibility

determination.”).

      Second, the IJ’s remaining adverse credibility findings as to Dong’s Falun

Gong claim were not specifically relied on by the BIA. In any event, none were

supported by substantial evidence. The IJ’s finding that Dong did not mention the

second arrest on direct examination when her counsel asked her if there was

anything else that she wanted to add was based on a misstatement of the record;

she was never asked about or given an opportunity to talk about the second arrest

during her direct examination. See Mutuku v. Holder, 600 F.3d 1210, 1213 (9th

Cir. 2010) (where an adverse credibility determination is based on a clearly

erroneous factual finding, it will not be upheld).

      That Dong at first testified that she was arrested on September 4, 1999

before she corrected herself, saying she made a mistake because she was nervous,


                                           3
and then testified that she was arrested on September 8, 1999, and that she also

misspoke about the date she started practicing with Shunzi Li at her home before

correcting herself were trivial inconsistencies in dates, made a number of years

after the events in question occurred. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th

Cir. 2011) (“[M]inor inconsistencies regarding non-material and trivial details,

such as . . . inconsistencies in specific dates and times that lack a close nexus to the

petitioner’s asserted grounds of persecution, cannot form the exclusive basis for an

adverse credibility determination.”).

      That Dong testified that sixteen people were arrested at the same time she

was arrested for the second time was not actually inconsistent with her written

statement, which said “about 20” people, not exactly that number, as the IJ

asserted; further, any possible discrepancy between sixteen and approximately

twenty is minor.

      That Dong testified at first that she was interrogated twice during her first

arrest and then clarified that she was interrogated twice in the interrogation room

and once in the detention room was a minor inconsistency. Further, that she said in

her written statement that she was interrogated three times without making a

distinction in locations is a mere omission of details, not an inconsistency. See

Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir. 1998) (“[I]nconsistencies of less


                                           4
than substantial importance for which a plausible explanation is offered” cannot

serve as the sole basis for a negative credibility finding); Bandari, 227 F.3d at

1167.

        Any inconsistency regarding her passports did not go to the heart of her

asylum claim.

        2. The BIA’s determination that Dong’s forced abortion claim was not

credible is also not supported by substantial evidence. The BIA gave four reasons

for disbelieving Dong. The first was Dong’s alleged inconsistent testimony

regarding the date that Chinese family planning officials discovered Dong was

pregnant. Yet, even if Dong’s testimony was inconsistent in this respect, it is a

minor inconsistency that does not support an adverse credibility finding. See

Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988) (a minor inconsistency

that “reveal[s] nothing about an asylum applicant’s fear for [her] safety [is] not an

adequate basis for an adverse credibility finding”).

        Second, the BIA found it was “implausible” that officials would allow Dong

to delay the abortion for three months after telling her “that an abortion was

required right away.” The record reveals, however, that Dong was told

immediately, at the physical exam, that she would have to have the abortion, not

that she was required to have the abortion immediately. Dong’s subsequent


                                           5
testimony confirms this reading of the record. Dong testified: “[T]hey told me to

go [to] family planning classes for one month, and then told me to do the

abortion.” An erroneous factual finding based on a misreading of the record does

not constitute substantial evidence to support an adverse credibility determination.

See Mutuku, 600 F.3d at 1213.

      Moreover, the BIA’s determination that it was “implausible” and

“unreasonable” for family planning officials to allow Dong’s pregnancy to

progress while they waited for her voluntarily to undergo an abortion, especially

since she “would have been vulnerable to enforcement of a forcible abortion at any

time,” is at odds with the 2005 Country Report on China in the record. The

country report affirms Dong’s testimony that social and economic pressure to

adhere to the one-child policy are common, and that women are visited by family

planning officials and reminded of their potential liabilities should they continue an

unauthorized pregnancy. See 2005 U.S. State Department Country Report on

Human Rights Practices in China. The country report thus supports Dong’s

testimony that officials coerced and pressured her to have an abortion, but did not

immediately subject her to a forced abortion. The BIA’s determination, therefore,

cannot be upheld because it is based on mere speculation and conjecture that

family planning officials would not allow Dong to voluntarily undergo the


                                          6
abortion. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000) (“We cannot

uphold an adverse credibility finding that rests on conjecture and speculation.”).

      The third reason the BIA gave for finding Dong incredible was the alleged

contradictory statement in her testimony that “she was ‘hiding’ at either her

cousin’s or father’s home while she was also attending the family planning

classes.” The record does not support this finding. Dong did not testify that she

was hiding at the same time as she was going to family planning classes. Instead,

she testified that (1) she went to family planning classes for a month; (2) she then

went into hiding; (3) she was later found and taken back home where she resumed

family planning classes for a week; and, finally, (4) the family planning committee

director forcibly took her from her class to the hospital for the abortion. An

erroneous factual finding does not support an adverse credibility determination.

See Mutuku, 600 F.3d at 1213.

      Finally, the BIA found unpersuasive Dong’s statement that as long as she

was not visibly pregnant, the family planning officials “were not insistent on

seeing proof that her abortion had been completed.” The BIA misinterpreted

Dong’s testimony and failed to address Dong’s reasonable explanation that she

postponed the abortion by telling the officials she would get the abortion the

following week. Although the family planning officials knew Dong was pregnant,


                                          7
she testified that they did not force her to terminate her pregnancy because she told

them she would do it on her own. Again, this is supported by the country report.

Thus, the BIA’s speculation and conjecture about what it believes the family

planning officials would have done does not support an adverse credibility finding.

See Shah, 220 F.3d at 1071.

      Because the BIA’s findings are not supported by substantial evidence,

Dong’s testimony must be accepted as credible. See Kaur v. Ashcroft, 379 F.3d

876, 890 (9th Cir. 2004). Dong is therefore statutorily eligible for asylum based on

her credible forced abortion claim. See Ding v. Ashcroft, 387 F.3d 1131, 1140 (9th

Cir. 2004) (“[I]f an applicant is believed to have suffered forced abortion or

sterilization, the applicant is necessarily eligible for asylum under the BIA’s

interpretation of the INA because such a person is automatically classified as a

refugee under 8 U.S.C. § 1101(a)(42)(B).” (internal quotation marks omitted)).

Accordingly, we grant the petition for review, and remand to the BIA, which shall,

on behalf of the Attorney General, exercise discretion regarding whether to grant

asylum based on Dong’s forced abortion claim. See id. We remand for further

proceedings as to whether Dong is eligible for withholding of removal and CAT

relief based on either her Falun Gong or forced abortion claims. See INS v.

Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).


                                           8
                                  CONCLUSION

      Dong’s petition for review of the BIA’s denial of her motion to reopen

(No. 10-70006) is DENIED. Dong’s petition for review of the BIA’s dismissal of

her appeal from the IJ’s denial of her application for asylum, withholding of

removal, and protection under CAT (No. 08-73489) is GRANTED, and

REMANDED.

      Each party shall bear its own costs on appeal.




                                         9
                                                                          FILED
Dong v. Holder, Nos. 08-73489, 10-70006                                   APR 15 2014

                                                                       MOLLY C. DWYER, CLERK
CHRISTEN, Circuit Judge, dissenting:                                    U.S. COURT OF APPEALS



      I respectfully dissent because, in my view, the record on appeal does not

compel a contrary conclusion regarding the BIA’s adverse credibility

determinations.
