NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QIHONG BAO, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 16-70107 

Agency No. A200-795-528 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 12, 2019**

Pasadena, California

Before: CALLAHAN, FISHER,*** and R. NELSON, Circuit Judges.

After overstaying a one-month visitor visa, Qihong Bao filed for asylum, 

withholding from removal, and protection under the Convention Against Torture

(“CAT”), claiming past persecution and fear of future persecution for resisting

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable D. Michael Fisher, United States Circuit Judge for the 

U.S. Court of Appeals for the Third Circuit, sitting by designation.

FILED

SEP 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

China’s one-child policy. An immigration judge found Bao not credible and denied 

all relief. The Board of Immigration Appeals dismissed his appeal. Bao petitions 

for our review.

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3), and we have 

jurisdiction under 8 U.S.C. § 1252(a)(1), (5). The BIA “‘relied upon the IJ’s 

opinion as a statement of reasons’ but ‘did not merely provide a boilerplate 

opinion,’” so “‘we review here the reasons explicitly identified by the BIA, and 

then examine the reasoning articulated in the IJ’s oral decision in support of those 

reasons.’” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014) (quoting Tekle v. 

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)). Factual findings, including 

adverse credibility determinations, are reviewed for substantial evidence. Zhi v. 

Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). “[U]nder the REAL ID Act, IJs must 

‘provide specific and cogent reasons in support of an adverse credibility 

determination.’” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (quoting 

Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009)). We may only reverse a

credibility determination “when ‘any reasonable adjudicator would be compelled 

to conclude to the contrary’ based on the evidence in the record.” Zhi, 751 F.3d at 

1091 (quoting 8 U.S.C. § 1252(b)(4)(B)). “[O]nly the most extraordinary 

circumstances will justify overturning” the BIA’s decision. Shrestha, 590 F.3d at 

1041 (quoting Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005)).
3 

The BIA found no clear error in the IJ’s findings that Bao’s story was 

implausible and his testimony was embellished and inconsistent with his asylum 

application. The IJ provided specific and cogent reasons for discrediting Bao’s 

testimony. The IJ found that Bao did not provide a plausible explanation for why, 

after Chinese officials threatened his wife with a compulsory abortion and visited 

their home twice, Bao did not rush to move her to the safety of a relative’s home.

See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (“If the IJ reasonably 

rejects the alien’s explanation or if the alien fails to provide a plausible 

explanation, the IJ may properly rely on the inconsistency as support for an 

adverse credibility determination.” (citation omitted)). The IJ also found that Bao 

embellished parts of his claim, such as the severity of an alleged beating, and 

added new facts, such as that his wife vomited in front of officials, prompting an 

investigation into her pregnancy. See Zamanov v. Holder, 649 F.3d 969, 974 (9th 

Cir. 2011) (denying petition for review where testimony portrayed “a much 

different—and more compelling—story of persecution than [the] initial 

application”). Bao did not offer a reasonable explanation for the differences

between his asylum application and his testimony.

We cannot say that any reasonable adjudicator would be compelled to find 

Bao credible, and because he was the sole witness, his asylum and withholding 

claims depended on his credible testimony. The adverse credibility determination 
4 

and denial of Bao’s application of asylum and withholding of removal are

supported by substantial evidence. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th 

Cir. 2003).

While an adverse credibility determination does not alone defeat a CAT 

claim, the remainder of the evidence must “compel[] the conclusion that [Bao] is 

more likely than not to be tortured.” Shrestha, 590 F.3d at 1049 (quoting 

Almaghzar v. Gonzales, 457 F.3d 915, 922−23 (9th Cir. 2006)). Bao’s other 

evidence—a State Department report, a letter from his wife, her abortion 

certificate, and some identification documents—does not compel a conclusion that 

he is likelier than not to be tortured. The BIA’s denial of Bao’s application for 

CAT protection is supported by substantial evidence. 

The petition for review is DENIED. 
Bao v. Barr; No. 16-70107 

R. Nelson, Circuit Judge, dissenting.

I would have found that substantial evidence does not support the adverse 

credibility determination. In this case, there are no inconsistent statements. 

Instead, we are asked to uphold the adverse credibility finding based on two 

omissions and a finding of implausibility. Because none of these three findings are 

supported by substantial evidence, I dissent.

In making its adverse credibility finding, the BIA relied upon two omissions: 

(1) the details of how family planning officials came to suspect that his wife was 

pregnant, and (2) the detail of his nose bleeding after he was punched in the face. 

Neither omission reveals an inconsistency, inaccuracy or falsehood in Bao’s 

statements; indeed, the IJ and BIA characterized these omissions as 

“embellishments” rather than inconsistencies.

“It is well established that the mere omission of details is insufficient to 

uphold an adverse credibility finding.” Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 

2014). When additional details are “supplemental rather than contradictory,” as 

they are here, they cannot alone support an adverse credibility determination. Id.

at 973.

It is true that omissions may support an adverse credibility determination if 

those omissions “are not ‘details,’ but new allegations” that suggest fabrication of a 

FILED

SEP 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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more compelling story. Silva-Pereira v. Lynch, 827 F.3d 1176, 1185-9. For 

example, as the majority notes, an IJ can base an adverse credibility finding on 

testimony that portrays “a much different—and more compelling—story of 

persecution than [the] initial application.” Zamanov v. Holder, 649 F.3d 969, 974 

(9th Cir. 2011). However, unlike in Zamanov, where the “additional incidents 

materially altered Zamanov’s account of persecution in a way that cast doubt on 

his credibility,” here, the additional details in Bao’s oral testimony neither 

materially alter his account nor cast doubt on his credibility. Id. at 971 (emphasis 

added). 

The BIA attempted to classify the “vomiting incident” as a new and 

dramatic account; yet, it failed to offer any reason why that detail was “critical” 

when Bao’s written application had concisely stated that family planning officials 

had suspected his wife was pregnant. Precisely how the officials came to suspect 

was certainly not a “new allegation” capable of supporting an inference of 

fabrication. The bloody nose detail is likewise consistent with facts already 

revealed in his asylum application—that he had been punched in the face—and did 

little, if anything, to enhance Bao’s claim. “[H]is failure to mention [these 

supplemental details] earlier in the process meant there were omissions, but not 

substantive inconsistencies” capable of supporting an adverse credibility 

determination. Lai, 773 F.3d at 973. 
3

The BIA also relied on the IJ’s finding that Bao’s inability to take swift 

action to protect his wife’s pregnancy after the family planning officer’s visit was 

“implausible.” The REAL ID allows the IJ to make an adverse credibility 

determination based on the “inherent plausibility” of the applicant’s account. 8 

U.S.C. § 1158(b)(1)(B)(iii). Bao’s story is not inherently implausible. Plausibility 

cannot be based solely on whether the IJ viewed an applicant’s actions as expected 

under the circumstances. Instead, implausibility must be based on record evidence

demonstrating the “inherent” implausibility of the applicant’s account. And there 

is no such record evidence here that would suggest Bao’s story is implausible.

This result is consistent with Yan Xia Zhu v. Mukasey, where this court 

found an IJ’s adverse credibility finding based on how she believed a rape victim 

would act under the circumstance, was “mere speculation and conjecture—not a 

proper basis for an adverse credibility finding.” 537 F.3d 1034, 1039 (9th Cir. 

2008). It is also consistent with Singh v. Lynch, where the IJ found Singh’s

account of being beaten by Sikh terrorists was implausible because background 

evidence “show[ed] that armed militants were no longer active, undermin[ing] 

[his] allegation that such militants recently attacked him.” 802 F.3d at 974 (9th 

Cir. 2015). This court determined that while “an adverse credibility determination 

cannot be based on complete speculation and conjecture,” the implausibility 
4

finding in Singh could sustain an adverse credibility determination because it was 

supported by “specific citations to record evidence.” Id. at 977. 

Here, the IJ failed to identify any record evidence indicating that Bao’s 

testimony was implausible. Instead she relied upon her own her personal 

judgement—her speculation and conjecture—as to how a person should act under 

the circumstances to find his actions implausible. Consequently, this finding that 

Bao’s actions were implausible with his portrayal of himself cannot serve as 

substantial evidence for an adverse credibility determination.

Because none of the three stated bases for the adverse credibility 

determination constitute substantial evidence, I dissent.