Jazmin Fabiola Chavez-Pina v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAZMIN FABIOLA CHAVEZ-PINA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-70987
Agency No. A202-157-191
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2022**
Before: CANBY, CALLAHAN, and BADE, Circuit Judges.
Jazmin Fabiola Chavez-Pina, a native and citizen of Mexico, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
appeal from an immigration judge’s (“IJ”) decision denying her applications for
asylum, withholding of removal, and protection under the Convention Against
* 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).
FILED
NOV 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, applying the standards
governing adverse credibility determinations under the REAL ID Act. Shrestha v.
Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We grant the petition for review
and remand.
The BIA found no clear error in three factual findings the IJ relied on in
support of an adverse credibility determination. Substantial evidence does not
support two of these findings. Substantial evidence does not support the agency’s
determination that Chavez-Pina’s testimony is inconsistent with her asylum
application related to a shooting involving a relative other than her father, where
she was not provided an opportunity to explain. See Rizk v. Holder, 629 F.3d
1083, 1088 (9th Cir. 2011) (petitioner must have an opportunity to explain
inconsistencies), overruled in part on other grounds by Alam v. Garland, 11 F.4th
1133 (9th Cir. 2021) (en banc). Substantial evidence also does not support the
agency’s determination that Chavez-Pina’s testimony is inconsistent with her
asylum application as to whether police vehicles were present when cartel
members removed her father from her house, where the agency failed to provide a
specific and cogent reason for rejecting Chavez-Pina’s explanation for the
perceived inconsistency. See Munyuh v. Garland, 11 F.4th 750, 758 (9th Cir.
2021) (“[T]he agency has a duty to consider a petitioner’s explanation for a

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perceived inconsistency[, and i]f that explanation is reasonable and plausible, then
the agency must provide a specific and cogent reason for rejecting it.” (internal
quotation marks and citations omitted)). Substantial evidence does support the
single remaining finding that Chavez-Pina’s testimony is inconsistent with a news
article as to the circumstances of her father’s arrest. Shrestha, 590 F.3d at 1040
(inconsistency may be considered in assessing credibility under the totality of
circumstances).
Because we cannot be confident that the BIA would have upheld the adverse
credibility determination based on this inconsistency alone, we grant the petition
and remand on an open record. Upon remand, the BIA may determine in the first
instance whether the one supported inconsistency is sufficient to support the
adverse credibility determination in the totality of circumstances, conduct further
proceedings to correct the unsupported credibility findings, address the IJ’s
alternative merits determinations, and conduct any other necessary further
proceedings consistent with this decision. See Kumar v. Garland, 18 F.4th 1148,
1156 (9th Cir. 2021) (remand appropriate for BIA to determine whether remaining
factors support determination); see also Alam, 11 F.4th at 1137 (9th Cir. 2021)
(single-factor rule for adverse credibility determinations overruled).
We do not address Chavez-Pina’s contentions as to the IJ’s alternative
asylum and withholding of removal determinations because the BIA did not deny

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relief on these grounds. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th
Cir. 2011) (“In reviewing the decision of the BIA, we consider only the grounds
relied upon by that agency.” (citation and internal quotation marks omitted)).
Because Chavez-Pina does not challenge the BIA’s determination that she
waived challenge to the IJ’s denial of CAT protection, this issue is waived. See
Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not
specifically raised and argued in a party’s opening brief are waived).
The parties must bear their own costs on appeal.
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW GRANTED; REMANDED.

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