Hua He v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUA HE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70223
Agency No. A209-201-644
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 17, 2022
Honolulu, Hawaii
Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.
Dissent by Judge R. NELSON.
Petitioner Hua He, a native and citizen of China, seeks review of the Board of
Immigration Appeals’s (BIA) denial of his applications for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT).1 The Immigration
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1Petitioner did not address withholding of removal or CAT relief in his
opening brief. Therefore, those issues are waived. See Lopez-Vasquez v. Holder, 706
F.3d 1072, 1079–80 (9th Cir. 2013).
FILED
JUN 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Judge (IJ) found Petitioner not credible and denied all relief, and the BIA affirmed
based on inconsistencies regarding Petitioner’s address and his wife’s medical
appointments and intrauterine device (IUD). We have jurisdiction under 8 U.S.C.
§ 1252, and we grant the petition for review and remand to the BIA for further
proceedings.
We review factual findings, including credibility determinations, for
substantial evidence. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir.
2020). In evaluating credibility, if a petitioner “offers a ‘reasonable and plausible
explanation’ for [an] apparent discrepancy, the IJ must provide a specific and cogent
reason for rejecting it.” Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (quoting
Soto–Olarte v. Holder, 555 F.3d 1089, 1091–92 (9th Cir. 2009)), abrogated on other
grounds by Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021). The IJ may only
rely on an explained inconsistency in finding the petitioner not credible if it
“reasonably rejects” the explanation or if the explanation is not “plausible.” Id.
1. Petitioner’s Addresses. The BIA failed to provide a “specific and cogent
reason” for rejecting Petitioner’s explanation for his inconsistencies regarding his
address. When the IJ asked Petitioner why he listed only the Hezhang address on his
application, Petitioner explained that this was his address in the Chinese “household
registration system” and that in China this is the address that one uses when filling
out forms. The record also establishes that Petitioner or his family owned the

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Hezhang residence throughout the relevant period.
Both the IJ and BIA acknowledged Petitioner’s explanation, but they rejected
it because the asylum application questions were read to Petitioner when he filled
out his form. This was error. Petitioner’s explanation for listing his Chinese
household registry address was “reasonable and plausible” even if the asylum
application questions were read to him. Thus, the IJ and BIA failed to provide a
“specific and cogent reason” for rejecting his explanation. Rizk, 629 F.3d at 1088;
see Soto-Olarte, 555 F.3d at 1091 (“[I]n order to ensure a fair hearing, the BIA
[must] not only identify specific inconsistencies, but also address in a reasoned
manner the explanations that the petitioner offers for these perceived
inconsistencies.” (cleaned up)). Accordingly, we reject the BIA’s finding that
Petitioner was not credible based on discrepancies in his address.
2. Wife’s Medical Appointments. The IJ questioned Petitioner about
perceived inconsistencies in his testimony about whether or not he attended his
wife’s medical appointments with her. Petitioner explained that he initially misspoke
when he said he attended the appointments with her because he thought the IJ was
asking “whether we went to the checkup, not specifying one person alone or two
people went together.” He also explained that he did not personally attend the
appointments because only women were allowed.
The IJ rejected Petitioner’s explanation “because of the specificity in which

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the Court needed to ask the question.” Again, in the context of this record, we
conclude that this was not a “specific and cogent” reason where the Petitioner clearly
explained what he thought the IJ initially had asked and why he misunderstood the
question. Thus, we conclude that this basis for finding Petitioner not credible was
not supported by substantial evidence. See Ren v. Holder, 648 F.3d 1079, 1086–87
(9th Cir. 2011) (finding that a “quickly-corrected innocent mistake . . . cannot form
the basis for an adverse credibility determination.”).
3. Wife’s IUD. Finally, the IJ doubted that Petitioner’s wife had an IUD after
their first child, as Petitioner’s claimed, and asked Petitioner how it was possible for
his wife to get pregnant the second time if this device was inserted. Petitioner was
unable to provide a scientific explanation, but he attempted to explain by stating his
belief that the IUD “fell off,” that it was not in place when he discovered his wife’s
second pregnancy, and that information about the IUD was recorded in his wife’s
family planning booklet. See Shrestha v. Holder, 590 F.3d 1034, 1044–45 (9th Cir.
2010) (recognizing that “the normal limits of human understanding” may make some
inconsistencies present in any case).
The BIA concluded that Petitioner did “not sufficiently explain how the
booklet resolve[d] the discrepancy in his testimony,” but the booklet has a column
titled “IUD (Pregnancy) Status” with notations on different dates reporting her
pregnancy status. The BIA failed to explain why this evidence did not support

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Petitioner’s testimony that information about the status of his wife’s IUD was
recorded in the family planning booklet.
Because we conclude that the grounds the BIA relied on in finding Petitioner
not credible were not supported by substantial evidence under the “totality of the
circumstances,” 8 U.S.C. § 1158(b)(1)(B)(iii), we remand to the BIA for further
consideration of Petitioner’s credibility.
PETITION GRANTED; REMANDED.

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Hua He v. Garland, No. 21-70223
R. NELSON, Circuit Judge, dissenting:
Hua He petitions for review of the IJ’s adverse credibility finding that was
affirmed by the BIA. Because the BIA provided specific reasons for rejecting He’s
explanations for inconsistencies and the BIA’s decision is supported by substantial
evidence in the record, I would deny the petition.
The BIA first affirmed the IJ’s adverse credibility determination because of
the inconsistencies in the address provided by He in his asylum application. He’s
“asylum application provided that he lived at one address from March 1989 to June
2016,” but “his testimony [stated] that he lived at several different addresses during
this period.” He argues that his address on the asylum application was “technically
. . . correct[],” and that this was his address in the Chinese “household registration
system” and the address He used in China. The BIA found this “explanation
unconvincing” and also relied on the fact that “the asylum application [questions]
were read to the respondent.”
The majority held that “[t]he BIA failed to provide a ‘specific and cogent
reason’ for rejecting Petitioner’s explanation for his inconsistencies regarding his
address.” Majority 2. The BIA did provide a reason for rejecting Petitioner’s
explanation, however, finding it unconvincing, especially since the questions were
read to He. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011), abrogated on
FILED
JUN 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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other grounds (the BIA “is not obliged to provide a protracted written or oral
analysis of the alien’s proffered explanation.”).
The BIA also relied on inconsistencies in He’s testimony about his wife’s IUD
in affirming the IJ. He says that he testified inconsistently about whether he attended
his wife’s checkups because he misunderstood the question. But the IJ’s question
was specific—He said that he misunderstood, but a reasonable judge could also
conclude that he was lying. In addition, the IJ rejected He’s explanation because of
the specificity used to ask the question. He also said that he knew about the IUD
coming out because it was in a medical booklet, but then said that the booklet didn’t
specifically say anything about the IUD. A reasonable judge could use these points
to support an adverse credibility determination.
Because the adverse credibility determination is supported by substantial
evidence, I would deny the petition.

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