NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAOHUI CHEN, 

Petitioner, 

 v. 

MATTHEW G. WHITAKER, Acting 

Attorney General, 

Respondent.

No. 15-73364 

Agency No. A074-595-840 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 3, 2018

Pasadena, California

Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,** District 

Judge.

Shaohui Chen, a native and citizen of China, petitions for review of the 

Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s 

(IJ) denial of his claims for relief from removal. We have jurisdiction pursuant to 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Robert W. Pratt, United States District Judge for the 

Southern District of Iowa, sitting by designation.

FILED

JAN 10 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

8 U.S.C. § 1252. We grant the petition for review.

The BIA found that the IJ’s adverse credibility determination that formed the 

basis for the IJ’s denial of Chen’s application for asylum and withholding of 

removal was not clearly erroneous.

1

 We disagree. First, the IJ and BIA committed 

legal error by evaluating Chen’s testimony without regard to the nature of the 

claim he asserted and without mentioning, much less applying, our precedent

governing asylum claims premised on opposition to coercive family planning 

practices. See, e.g., Ming Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018); Nai Yuan 

Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010). Second, the IJ’s adverse 

credibility decision was contradicted by the record and not supported by substantial 

evidence. See Shire v. Ashcroft, 388 F.3d 1288, 1294 (9th Cir. 2004) (“Where, as 

here, the BIA adopts the IJ’s credibility determination, we look through the BIA’s 

decision to examine the IJ’s reasons for deeming the person not credible.”). 

The IJ found that Chen’s “testimony regarding the gynecological problems 

his wife had, which he claimed caused him to be targeted for sterilization in her 

stead, was vague, vacillating, speculative, and uncorroborated.” However, Chen 

actually testified that neither he nor his wife wanted her to be sterilized once the 

doctor prohibited his wife’s sterilization based on medical concerns. In addition, 

 

1 Chen did not appeal the denial of his claim for relief under the Convention 

Against Torture to the BIA. Consequently, he has waived that ground for relief 

before us. See 8 U.S.C. § 1252(d)(1).
3 

the IJ failed to consider the entire record, assessing only part of Chen’s explanation 

for how he knew that sterilization would be harmful to his wife. And the IJ also 

erred by placing great weight on “trivial inconsistencies” in Chen’s testimony. See 

Bingxu Jin v. Holder, 748 F.3d 959, 965 (9th Cir. 2014) (explaining that “trivial 

inconsistencies” that “have no bearing on the petitioner’s veracity” cannot form the 

basis for an adverse credibility determination (internal quotations and citations 

omitted)).

The IJ’s finding that Chen testified inconsistently about his actions after the 

birth of his son was unsupported by the record. Chen provided a clear timeline in 

his testimony. He testified that his second child was born in November 2006, then 

the family planning officials visited his house, then he paid the fine required by 

those officials in December 2006, then he registered his son in February 2007, and 

then they went into hiding that same month. The BIA also engaged in 

“impermissible speculation” when it determined that Chen’s wife would not have 

gone to the hospital if they had really been in hiding. Ge v. Ashcroft, 367 F.3d 

1121, 1126 (9th Cir. 2004).

Finally, the IJ’s determination that Chen’s explanation of his arrival into the 

United States at the Houston airport was “vague and ‘highly questionable’ 

testimony” was speculative and disregarded the totality of the evidence. The 

record included evidence that it was highly improbable that the smugglers who 
4 

detained Chen for seven months immediately leading up to his arrival in Houston, 

a fact the IJ did not question, would have explained to Chen their means for 

smuggling him into the United States. See Shire, 388 F.3d at 1295–96. Moreover, 

the government’s own allegation that Chen entered without inspection supports 

Chen’s testimony that he did not encounter immigration officials until hours after 

leaving the airport. 

Because the BIA’s adverse credibility determination was not supported by 

substantial evidence, we grant the petition and remand to the BIA to evaluate 

Chen’s claims for asylum and withholding of removal, taking his testimony as true,

in compliance with 8 U.S.C. § 1101(a)(42) and applying legal precedent as to 

China’s coercive population control policies. 

PETITION GRANTED; REMANDED.