Lin Cunyi v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIN CUNYI,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 16-73204
Agency No. A208-419-218
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Lin Cunyi 1, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
* 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).
1 Although petitioner’s name appears as “Lin Cunyi” in the agency
decisions and Answering Brief, it appears as “Cun Yi Lin” in the Petition for
Review and Opening Brief, and as “Cunyi Lin” in the Notice to Appear, credible
fear documentation, and Form I-589.
FILED
MAR 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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judge’s (“IJ”) decision denying his application for asylum, withholding of removal,
and relief under the Convention Against 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 we remand.
The BIA found no clear error in the IJ’s adverse credibility determination
based on two findings that Cunyi’s testimony was inconsistent with his credible
fear interview. Substantial evidence does not support these findings, where the
agency failed to provide any reason for rejecting Cunyi’s explanations for the
perceived inconsistencies. 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
perceived inconsistency . . . . If 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)).
In addition, the BIA did not address Cunyi’s contentions as to the reliability
of the credible fear interview notes. See Sagaydak v. Gonzales, 405 F.3d 1035,
1040 (9th Cir. 2005) (“[T]he BIA [is] not free to ignore arguments raised by a
petitioner.”).

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As to CAT, following the negative credibility determination as to Cunyi’s
testimony, the agency erred by failing to analyze whether the remaining non-
testimonial record evidence established Cunyi’s eligibility for relief. See Shrestha,
590 F.3d at 1048 (“An adverse credibility determination is not necessarily a death
knell to CAT protection.”).
Thus, we grant the petition for review and we remand Cunyi’s asylum,
withholding of removal, and CAT claims on an open record to the BIA for further
proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-
18 (2002) (per curiam); see also Soto-Olarte v. Holder, 555 F.3d 1089, 1095-96
(9th Cir. 2009).
Cunyi’s removal is stayed pending a decision by the BIA.
The parties must bear their own costs on appeal.
PETITION FOR REVIEW GRANTED; REMANDED.

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