De Ji v. Attorney General of the United States

385 F. App'x 104
CourtCourt of Appeals for the Third Circuit
DecidedJune 25, 2010
DocketNo. 08-4863
StatusPublished

This text of 385 F. App'x 104 (De Ji v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Ji v. Attorney General of the United States, 385 F. App'x 104 (3d Cir. 2010).

Opinion

OPINION OF THE COURT

RENDELL, Circuit Judge.

Petitioner De Ji1 seeks review of an order of the Board of Immigration Appeals (“BIA”) which affirmed the decision of the Immigration Judge (“IJ”) denying Petitioner’s applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The BIA based its decision on the IJ’s decision, which in turn rested entirely and explicitly on the IJ’s adverse credibility determination. We find that the IJ’s adverse credibility determination was not supported by substantial evidence. In particular, we find that the IJ did not appropriately take into account record evidence that explained the one discrepancy upon which the adverse credibility determination rested, and that the Petitioner’s supposed “unresponsiveness” and “evasiveness” in answering questions is not enough to sustain an adverse credibility determination on this record. We will therefore grant review, vacate, and remand for further proceedings consistent with this opinion.

[106]*106I.

Ji is a native of Tibet and a citizen of the People’s Republic of China.2 She was born in Lhasa, Tibet, where she was educated and eventually obtained a position teaching the Tibetan language at an elementary school. Her father was a member of the Chushi Gangdruek, a Tibetan guerilla movement, and was imprisoned for over fifteen years for his involvement with this group. Her uncle was also active in the guerilla movement, and fled into exile. In her statement in support of her asylum application, Ji notes that her family is monitored by the Chinese Government more closely than most because of this family history, since from the Chinese Government’s perspective, she comes from a “bad family background.” App. 13IM0.

Concerned about the lack of opportunities for people with a family background like hers, Ji decided to study English in America for a year, since knowledge of the English language was valuable in Tibet. Ji received a scholarship from the Tibet Fund in New York City, which offers scholarships to Tibetans wishing to learn English. Ji entered into the United States in 2004 on a J-l visa to study English at the College of Southern Idaho.

Toward the end of her year-long stay in the United States, Ji learned that the Da-lai Lama would be visiting Columbia University in New York. In her statement, she mentioned that “the Chinese Government refuses to allow the Dalai Lama to visit his people in Tibet” and so “Tibetans who leave their homeland for any length of time eagerly seek opportunities to visit him.” App. 142. Ji traveled to New York, and on September 27, 2005, had an opportunity to meet with the Dalai Lama privately in a small group. Ji states that she reported to him regarding the state of education in Tibet. At this meeting with the Dalai Lama, a photograph was taken of Ji with the Dalai Lama. This photograph is clearly of her with the Dalai Lama and is part of the record.

At this point in the narrative, some of the facts are in dispute, and the IJ’s adverse credibility determination was based largely on what the IJ took to be discrepancies regarding these following facts as found in Ji’s application for asylum submitted on March 12, 2Q06 and the facts that Ji testified to at her merits hearing on April 20, 2007.

The basic story of what happened next, according to Ji, is that Ji sent the photograph, as part of a larger package, to her parents in Tibet in October of 2005. Her parents were not home when the photograph arrived, and so the package was eventually brought to local officials who opened the package. The officials saw the photograph of Ji with the Dalai Lama, submitted it to Chinese Government authorities, and this led to government officials visiting her parents and interrogating her parents regarding her whereabouts and activities. Her parents then sent a letter to Ji, telling her of what had happened, and urging her not to return for fear that she would be harmed and/or imprisoned by Chinese Government officials. It was at this point that Ji submitted her application for asylum, withholding of removal, and protection under the CAT.

The IJ found that there were three critical facts in the case: (1) that there was a photograph with Ji and the Dalai Lama together, (2) that the photograph made its way to Tibet, and (3) that the Chinese authorities now are interested in Ji, because of the photograph. The IJ did not [107]*107question that there was a photograph with Ji and the Dalai Lama, but noted that

The problem I have with [Ji’s] credibility is whether she has been persuasive as to whether these photos have gone to China or to Tibet, and have been discovered by the authorities, and therefore, would give rise to problems for her, because of that. My concerns in this regard relate to her issues as a witness before me.

Id. The IJ then specified that she had two concerns regarding Ji’s credibility; namely, that she was unresponsive to several questions at the merits hearing and that there was “an extremely material discrepancy between her testimony and her application.” App. 36-38. The IJ did not find other flaws in Ji’s application for asylum, stating that “considering the overall human rights record of the Chinese authorities in Tibet ... I will ... determine that if she were deemed to be credible, that I would conclude she has established a well-founded fear of persecution in Tibet.” App. 41. The IJ even repeated this point, “if [Ji] were deemed to be credible ... I would conclude she has established her eligibility for asylum ... I would grant her asylum.” Id.

In a brief order, the BIA adopted and affirmed the IJ’s decision, finding that the IJ’s “adverse credibility determination in this matter was not ‘clearly erroneous’,” and that the IJ “properly based her credibility finding on significant discrepancies [sic] in the record, the respondent’s unresponsiveness to certain questions posed to her, as well as her evasiveness in response to other inquiries.” App. 24.

We have exclusive jurisdiction to review final orders of removal, pursuant to section 242(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a), which provides the exclusive procedure for judicial review of all final removal orders.

II.

A.

A grant of asylum allows an alien who is otherwise subject to removal to stay in the United States because she is a refugee. Abdulai v. Ashcroft, 239 F.3d 542, 545 (3d Cir.2001). A refugee is someone who is unable or unwilling to return home because of persecution or a well-founded fear of persecution on one of several particular grounds. 8 U.S.C. § 1101(a)(42)(A). To establish a well-founded fear of persecution, an applicant must show a subjective fear as well as an objectively reasonable possibility that she would suffer such persecution if he returned to his country. Chukwu v. Att’y Gen., 484 F.3d 185, 188 (3d Cir.2007).

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385 F. App'x 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-ji-v-attorney-general-of-the-united-states-ca3-2010.