Xue Sun v. Loretta E. Lynch

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 16 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS XUE YUN SUN, No. 12-73010

Petitioner, Agency No. A093-408-574

v. MEMORANDUM* LORETTA E. LYNCH, Attorney General,

Respondent.

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

Submitted February 11, 2016** San Francisco, California

Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.

Xue Yun Sun, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s (“IJ”) decision denying her application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s factual

findings for substantial evidence, applying the standards governing adverse

credibility determinations created by the REAL ID Act. Shrestha v. Holder, 590

F.3d 1034, 1039-40 (9th Cir. 2010). We review legal questions de novo. Id. at

1048. We deny in part and grant in part the petition for review, and we remand.

Sun sought relief on two distinct grounds, one based on an alleged forced

abortion in China, and the other based on a whistleblower theory related to

mistreatment she incurred for attempting to prosecute a government official who

raped her niece. The BIA affirmed the IJ’s denial of the forced abortion claim on

adverse credibility grounds. Substantial evidence supports that determination

based on Sun’s omission of the forced abortion from her initial application and

asylum interview. See Zamanov v. Holder, 649 F.3d 969, 973-74 (9th Cir. 2011)

(holding that the petitioner’s material omission of politically-motivated

mistreatment from his asylum interview supported the agency’s adverse credibility

determination). The record does not support Sun’s contentions that the agency

failed to articulate an adequate basis for this credibility determination, or that the

agency ignored her explanation for the omission. Thus, we deny Sun’s petition as

to both asylum and withholding of removal based on her alleged forced abortion.

See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

2 12-73010  Although the IJ denied Sun’s whistleblowing claim on adverse credibility

grounds as well, the BIA assumed Sun was credible as to her whistleblowing

claim, and concluded in the first instance that Sun did not demonstrate past

persecution on account of a protected ground because she failed to present

sufficient corroborative evidence. The BIA specifically noted a lack of evidence

corroborating the niece’s rape and opined that such evidence was reasonably

available. In doing so, the BIA denied a credible applicant’s asylum claim solely

based on insufficient corroborating evidence, without undertaking the sequential

analysis required for such determinations. See Ren v. Holder, 648 F.3d 1079,

1090-93 (9th Cir. 2011).

On remand, the BIA has the opportunity to analyze dispositive issues

unrelated to its initial corroboration determination and revisit its assumption that

Sun was credible. However, if the agency ultimately determines Sun has not met

her burden of proof for asylum or withholding of removal solely due to a lack of

corroborating evidence, the agency must (i) expressly determine Sun’s credible

testimony alone does not meet her burden of proof, (ii) give Sun notice that further

corroborative evidence is required, and (iii) provide Sun an opportunity to either

produce that evidence or explain why it is not reasonably available. See id. at

1093. Accordingly, we grant the petition as to Sun's claim for asylum and

3 12-73010 withholding of removal based on her whistleblower status, and we remand to the

BIA for further proceedings consistent with this disposition.

Finally, the IJ found Sun did not meet her burden for CAT relief after

determining that Sun’s entire testimony lacked credibility. Because the BIA

assumed in the first instance that Sun was credible as to her whistleblower claim, it

was required to consider the credible portions of Sun’s testimony in determining

her eligibility for CAT relief. See 8 C.F.R. § 1208.16(c)(3). It is unclear from the

decision, however, whether the BIA considered that testimony. We therefore grant

the petition as to Sun's CAT claim and remand to the BIA for further proceedings

consistent with this disposition.

Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.

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