UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PENG SHEN, No. 16-71315

Petitioner, Agency No. v. A200-275-534 MERRICK B. GARLAND, Attorney General, OPINION

Respondent.

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

Argued and Submitted May 17, 2022 Pasadena, California

Filed July 24, 2024

Before: Eric D. Miller and Daniel P. Collins, Circuit Judges, and Edward R. Korman,* District Judge.

Opinion by Judge Collins; Dissent by Judge Miller

* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 2 SHEN V. GARLAND

SUMMARY**

Immigration

The panel granted Peng Shen’s petition for review of the Board of Immigration Appeals’ decision upholding the denial of asylum and related relief on adverse credibility grounds, and remanded. Shen testified that a mandatory pre-marital health exam led to the discovery that she was pregnant, which in turn led to her forced abortion. The BIA upheld the immigration judge’s adverse credibility determination based, in part, on Shen’s inconsistent testimony and demeanor after counsel for the Department of Homeland Security (“DHS”) suggested on cross-examination that the Chinese government had eliminated its requirement for pre-marital health check-ups by the time Shen underwent her examination in January 2003. After the panel inquired at oral argument whether the record revealed exactly when the referenced change in Chinese law had taken effect, and DHS counsel responded that it did not, Shen’s counsel submitted a citation to an August 19, 2003, article from the official China Daily newspaper announcing the elimination of the mandatory premarital health examination requirement effective October 1 of that year. The panel requested supplemental briefing to address whether the court could take judicial notice of the effective date of the repeal of the health examination requirement, and the impact on the

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SHEN V. GARLAND 3

credibility determination if the change occurred after Shen underwent her health checkup. The panel concluded that it could properly make an independent determination, as a question of foreign law, that the relevant change in Chinese law took effect on October 1, 2003. As a result, DHS counsel’s suggestion in cross- examination that the requirement had already been repealed at the time of Shen’s check-up rested on a clear misstatement of the applicable Chinese law. That error, in turn, led the IJ to wrongly conclude that Shen became flustered after being confronted with information showing that her statements were false, and vitiated the agency’s given reasons for concluding that this cross-examination supported the adverse credibility determination. The panel rejected the Government’s argument that Shen had failed to exhaust the legal question of the Chinese law’s effective date. Given DHS counsel’s misstatement of Chinese law, the agency, as the trier of fact, could reasonably come out either way as to the resulting effect on Shen’s credibility. Accordingly, the panel remanded for a reassessment of this credibility ground. Considering the totality of the circumstances, the panel also concluded that the BIA’s only remaining factor for upholding the adverse credibility determination was insufficient, standing alone, to avoid a remand. Dissenting, Judge Miller wrote that the panel inappropri