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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-14730 Non-Argument Calendar ________________________
Agency No. A216-272-066
XIUYUN ZHENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent. ________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(March 5, 2020)
Before MARTIN, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
Xiuyun Zheng, a native and citizen of China proceeding pro se, petitions for
review of the Board of Immigration Appeals’ (“BIA”) final order affirming the
Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of Case: 18-14730 Date Filed: 03/05/2020 Page: 2 of 17
removal, and relief under the United Nations Convention Against Torture
(“CAT”). She challenges the BIA’s adverse credibility determination, its denial of
her claim of political persecution related to China’s one-child policy, and its denial
of her applications for withholding of removal and CAT relief. After careful
review, we grant her petition for review and remand to the BIA for further
proceedings.
I.
Zheng entered the United States without valid entry documents. The
Department of Homeland Security (“DHS”) issued a notice to appear, charging her
as removable as an immigrant without a valid entry document upon admission.
See Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Zheng admitted the allegations in the notice to appear and
conceded removability.
A. Application for asylum, withholding of removal, and CAT protection
Zheng applied for asylum, withholding of removal, and relief under CAT.
She claimed religious persecution for her attendance of a Christian church and
political persecution for her violation of China’s one-child policy. She alleged that
she “was arrested, detained and beaten by the Chinese government because [she]
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attended Christian underground church” and that “[b]ecause [she] had [an] extra
baby, [she] was accused of violating the family planning policy.” AR at 176.1
Zheng attached several documents to her application, including a personal
statement, letters from her husband and a neighbor, and notices from her local
village committee reporting her arrest for religious activity. Zheng’s personal
statement described the harm she suffered on the basis of her religion and political
opinion. She claimed that she converted to Christianity and began attending an
underground worship group in October 2017. Later that month, she was attending
a Bible study at a private home when seven police officers broke into the house
and arrested her and the other congregants. She was taken to an interrogation
room, where she was slapped, beaten, kicked, and mocked for her faith. She was
then detained for approximately 11 days, during which time she was deprived of
food. Eventually her husband, Shunfa Yi, paid her bail and she was released, but
only after she was forced to write a “guarantee letter” promising to “draw a clear
line between [herself] and the evil cult” or otherwise be “sen[t] directly into
prison.” Id. at 188. Upon her release, she was “required to report to [the] village
committee every week.” Id. She fled China shortly thereafter. After she left,
“village cadres and police officers came [a] few times to catch [her].” Id. She
1 “AR” refers to the administrative record.
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feared that if she returned to China she would continue to be persecuted for her
religious faith.
Regarding her persecution for violating China’s one-child policy, Zheng
stated that she was forced to insert an intrauterine device (“IUD”) after she gave
birth to her first child. The IUD was lost and some years later she became
pregnant again. After the family planning office discovered her pregnancy, Zheng
hid to avoid apprehension and a forced abortion. After Zheng gave birth, village
officials “came again and wanted to sterilize” her, but her doctor “diagnosed that
[her] body could not stand sterilization surgery,” so officials “forced [her] to insert
[an] IUD and attend regular pregnancy checkup[s].” Id. at 187. The family had to
pay a fine to register their second child onto the village’s “household registry.” Id.
Zheng also submitted a signed statement from Yi, her husband, which
corroborated her claims of political persecution. In it, he stated that Zheng became
depressed after she had a second IUD forcibly inserted and was forced to pay a fine
for having a second child. Zheng was invited to a Christian church and, after she
began attending, her mental health improved. Yi stated that Zheng was later
arrested at a church member’s house during a gathering and “was covered with
wounds by the time when she was released.” Id. at 232. After her release, “the
police wanted her to report whenever they like.” Id. Zheng “was living in fear
after she came home” and “was afraid of doing anything because she worried that
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the police would arrest her again.” Id. In another signed statement, Zheng’s
neighbor, Meizi Lin, stated Zheng was arrested “due to her participation in [a]
Christian gathering” and that “[h]er husband bailed her out after 12 days,” at which
point Zheng had “wounds and injuries all over her body.” Id. at 238. Further, Lin
stated, Zheng “was not allowed to go far from the town and participate in [any]
gathering again.” Id.
Zheng also attached two village committee notices to her application. The
first, issued before Zheng fled China, reported that she had “participated in [an]
illegal underground Christian church event” and had been fined. Id. at 224. The
second, issued after Zheng fled China, said that she had “participated in illegal evil
cult’s activity” and was “arrested by public security bureau,” but had “showed no
regret with no correction after her release.” Id. at 228. It “demand[ed] her family
members to persuade her” to “confess[]” to participating in an “illegal evil cult’s
activity” or otherwise she would be “severely punished and sentenced.” Id.
Testifying before the IJ, Zheng reiterated much of her personal statement.
She also elaborated on how she fled from China. Five days after being released
from prison, she traveled five hours by train to Guangzhou to obtain a Mexican
visa. After obtaining her visa in Guangzhou, she did not return home; instead she
stayed in a nearby village with other family members until departing for Mexico.
Although she was supposed to report to the village committee, she told her
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husband to make up an excuse for her failure to do so. When authorities came
looking for her, he told them that she had left the village to visit a doctor and been
hospitalized.
B. The IJ’s decision
The IJ denied Zheng’s application in an oral decision, finding that her
account of persecution was not credible and that her claims for relief failed on the
merits. As to credibility, the IJ found that Zheng’s testimony regarding her
religious persecution was inconsistent with her corroborating evidence.
Emphasizing that her “testimony is inconsistent with the record” and that she had
not “otherwise demonstrated by her demeanor that she is credible,” the IJ made an
adverse credibility determination and denied her application. AR at 78.
The IJ alternatively held that Zheng’s claims failed on the merits. It held
that the beatings and 11-day detention did not rise to the level of past persecution
on account of religion and that forced insertion of an IUD and a fine for violation
of China’s one-child policy did not amount to past persecution on account of
political opinion. The IJ found that Zheng could not demonstrate a well-founded
fear of future persecution on account of her political opinion, because, as Zheng
acknowledged, China no longer applies the one-child policy. The IJ denied
Zheng’s claims for withholding of removal and CAT relief based on its conclusion
that Zheng failed to demonstrate eligibility for asylum.
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C. Appeal to the BIA
Zheng appealed the IJ’s decision to the BIA, which affirmed and dismissed
the appeal. The BIA upheld the IJ’s adverse credibility determination as to
Zheng’s religious persecution claim. In doing so, it relied on three purported
discrepancies between Zheng’s testimony and other witness accounts: differing
accounts of how frequently and to whom Zheng was required to report upon her
release from detention; Zheng’s uncorroborated testimony that authorities visited
her husband to inquire as to her whereabouts; and conflicting accounts of whether
Zheng left her house to obtain a Mexican visa upon her release from detention.
The BIA did not rely on the one-day difference in Zheng’s and her neighbor’s
account of how long Zheng was detained after her arrest. The BIA declined to
address the IJ’s “alternative determination that [Zheng] did not meet her burden of
proof for her religion claim.”
The BIA also affirmed the IJ’s holding that Zheng failed to meet her burden
of proof of showing political persecution based on her violation of China’s one-
child policy. Specifically, the BIA agreed with the IJ that the harm Zheng
alleged—“that she was nearly sterilized, was forced to have an IUD inserted and
charged a fine”—did not amount to past persecution. AR at 4. As to Zheng’s fear
of future persecution, the BIA acknowledged Zheng’s concession that China no
longer enforces a one-child policy.
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Zheng timely petitioned this Court for review.
II.
We review only the BIA’s decision, except to the extent that it expressly
adopted the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Here, the BIA adopted only two portions of the IJ’s decision: its adverse
credibility determination and its finding that Zheng failed to prove entitlement to
relief based on China’s one-child policy. As to these two points, we review both
decisions. On all other questions, we refer only to the BIA’s decision.
We review de novo the BIA’s legal conclusions. Gonzalez v. U.S. Att’y
Gen., 820 F.3d 399, 403 (11th Cir. 2016). We review factual findings, including
credibility determinations, under the substantial-evidence test. Under that test, we
will affirm findings that are “supported by reasonable, substantial, and probative
evidence on the record considered as a whole,” viewing “the record evidence in the
light most favorable to the agency’s decision and draw[ing] all reasonable
inferences in favor of that decision.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282,
1286 (11th Cir. 2005) (quotation marks omitted). We reverse only if the record
“compels” reversal of the administrative agency’s findings of fact. Kazemzadeh v.
U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009). We liberally construe pro
se filings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
III.
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Under the REAL ID Act of 2005, IJs must consider “the totality of the
circumstances, and all relevant factors” in determining the credibility of an
applicant for asylum. 8 U.S.C. § 1158(b)(1)(B)(iii). This includes the applicant’s
demeanor when testifying, the consistency between her written and oral
statements, the consistency of her statements with other record evidence, and any
“inaccuracies or falsehoods in such statements. ” Id. Although the Act does not
require that inconsistencies “go[] to the heart of the applicant’s claim” to weigh in
favor of an adverse credibility determination, it requires the IJ to look to the
“totality of the circumstances, and all relevant factors.” Id. And it does not require
courts to abandon reason and proportion in making and reviewing credibility
findings. See Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1305 (11th Cir. 2009)
(rejecting an IJ’s credibility finding when it was based on an inconsistency which
was not “plausible and material”); Forgue, 401 F.3d at 1287 (requiring “cogent
reasons” for an adverse credibility finding).
After careful review, we conclude that the IJ’s credibility finding was not
based on substantial evidence. In affirming the IJ’s credibility finding, the BIA
relied on three purported inconsistencies between Zheng’s testimony and other
record evidence. But these inconsistencies were either trivial, based on a
misunderstanding of the evidence, or not inconsistencies at all. And the IJ
repeatedly relied on faulty reasoning and misunderstandings of both the evidence
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and the legal standards governing credibility determinations. We consider the
bases for the IJ’s credibility finding in turn.
A. Zheng’s reporting requirements
In finding Zheng not credible, the IJ relied on what it perceived to be
inconsistent descriptions of Zheng’s reporting requirements after her release from
detention. In both her declaration and testimony before the IJ, Zheng stated that
she was required to report weekly to the village committee. Yi wrote in his one-
page declaration that after Zheng’s release “the police wanted her to report
whenever they like.” AR at 232. And Lin stated that “[g]overnment officials . . .
asked her to report” without elaborating on the nature of these reporting
requirements. Id. at 238. This evidence does not support an adverse credibility
finding.
First, we note that the descriptions of Zheng’s release conditions were not
inconsistent. As Zheng clarified in her testimony before the IJ, she was required
both to report weekly to the village committee and to appear whenever summoned
by police. Specifically, Zheng testified that, in addition to imposing a weekly
village committee reporting requirement, police also told her that “whenever they
call [her], summon [her], [she] ha[s] to appear.” Id. at 146-47. These are readily
understandable and facially plausible conditions. They are also consistent with the
declarations of her husband and neighbor. That Zheng’s husband described only
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one component of Zheng’s reporting requirements in a one-page declaration, which
did not purport to be exhaustive, also does not weigh against her credibility.
Indeed, the IJ did not identify any inconsistencies in these statements,
finding only that Zheng’s testimony was not corroborated by other evidence.2 But
unlike inconsistency, the absence of corroborating evidence alone is not a proper
basis for an adverse credibility finding. Since the passage of the REAL ID Act,
this Court has repeatedly recognized that DHS regulations permit noncitizens to
establish eligibility for asylum based on their credible testimony alone. See 8
C.F.R. § 208.13 (stating that, for the purpose of establishing eligibility for asylum,
“[t]he testimony of the applicant, if credible, may be sufficient to sustain the
burden of proof without corroboration”); Niftaliev v. U.S. Att’y Gen., 504 F.3d
1211, 1217 (11th Cir. 2007) (approving of the proposition that, in the absence of
corroborating evidence, an applicant’s testimony alone may be sufficient to
establish eligibility for asylum so long as it is “believable, consistent, and
sufficiently detailed” (internal quotation marks omitted)); Mohammed v. U.S. Att’y
Gen., 547 F.3d 1340, 1345 (11th Cir. 2008) (“An applicant may be able to meet his
2 The IJ and BIA both considered the fact that the village committee notices do not mention Zheng’s reporting requirements. But neither the IJ nor the BIA explained why these notices would be expected to contain information about the conditions of Zheng’s release. Nothing in the form or content of these one-paragraph notices suggests that they would normally contain such information. And nothing else in the record supports such a conclusion. To the extent that the IJ and BIA held otherwise, it was based “solely on speculation and conjecture” and does not merit consideration. See Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1278 (11th Cir. 2009).
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statutory burden by providing uncorroborated but credible testimony . . . .”). That
an applicant can establish eligibility for asylum based solely on credible, but
uncorroborated, testimony cannot be squared with the IJ’s decision that Zheng was
not credible for failing to corroborate her testimony.
When this Court has affirmed adverse credibility findings based on lack of
corroboration, it has been based on the omission of facts in asylum applicants’ own
prior statements, and only when those omissions were material to their
applications. See Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011)
(“Although [respondent] might reasonably decline to list every detention, his
failure to mention any of them supports the IJ’s adverse credibility finding.”);
Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049–50 (11th Cir. 2009) (affirming
adverse credibility determination where applicant made “material omissions”
central to his persecution claim in his airport interview and credible-fear
interview); Forgue, 401 F.3d at 1287–88 (holding that substantial evidence
supported adverse credibility finding where asylum applicant had failed to mention
prior political activities and severe physical assaults prior to testimony). And we
have required “reasonable explanations” for adverse credibility findings based on
omissions in prior statements. Shkambi, 584 F.3d at 1048. Unlike omissions in
supporting evidence, there are good reasons to consider material omissions from an
applicant’s own statements in evaluating her credibility. The failure to mention
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significant events relevant to an asylum claim at early stages of the process
suggests that the applicant may have later invented or embellished elements of her
claim, especially when she is unable to provide a satisfactory explanation for the
omission. But friends and family members preparing corroborating declarations
often will have no reason to think that their statements need mention every detail,
particularly when that detail is not central to the applicant’s claim.
Even if we were to consider omissions in Yi and Lin’s statements, our
precedent still would not support the IJ’s credibility determination. First, the
omissions here were not material to Zheng’s claim, as they related only to a
peripheral question, her conditions of release. Second, Zheng provided a plausible
explanation for the omission: that she was in fact subject to both conditions of
release. And third, the IJ provided no reasoned explanation of why this omission
undermined Zheng’s credibility or why her explanation of the omission was
unsatisfactory.
This factor thus was not a proper basis for the IJ’s adverse credibility
determination.
B. Zheng’s flight from China
Next, the IJ pointed to purported inconsistences between Zheng’s account of
her escape from China and Yi’s and Lin’s declarations describing Zheng’s
treatment after her release from prison. Zheng testified that after she was released
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from detention members of her church encouraged her to flee to the United States
and suggested she go to Guangzhou to obtain a travel visa. She traveled to
Guangzhou and obtained a visa from the Mexican embassy. To help evade her
reporting requirements, Yi told the village committee that she had been
hospitalized. After leaving for Guangzhou, Zheng never returned home, staying in
hiding with her mother in a different village until her departure for Mexico.
The IJ thought this inconsistent with Yi’s declaration, which said that after
Zheng was released from detention “[s]he could not leave far away from home,”
“could not participate in gathering,” and “was living in fear . . . of doing anything
because she was worried that the police would arrest her again.” AR at 88, 232.
But of course the fact that Zheng was afraid of leaving her home does not mean
that she did not do so—people frequently do things they fear, especially when
circumstances require them to act to escape persecution. That people take action
and leave their homes despite fear of coercive government action is, in fact, a
fundamental assumption of our asylum law, which requires a demonstration of
credible fear of persecution by or with the sanction of the government. See 8
C.F.R. § 208.13(b).
The IJ also seems to have misinterpreted the evidence and believed that
Zheng returned to her home between travelling to Guangzhou to obtain a visa and
departing for Mexico. But that is not what she said she did. Misapprehension of
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the record is not a proper basis for an adverse credibility determination. See
Kueviakoe, 567 F.3d at 1306 (granting petition for review where finding of
inconsistency was based on misreading of the record). Perhaps the IJ thought that
the conditions of Zheng’s release made it impossible for her to leave home, making
her tale of escape implausible. But the record supports that Zheng was required to
report to the village committee weekly and also when requested by law
enforcement, not that she was subject to continuous surveillance or other restraint
that would prevent her flight. And Zheng gave a plausible explanation for how she
evaded apprehension: she hid out and her husband lied to officials to cover her
tracks.
This factor also was not the proper basis of an adverse credibility
C. Yi’s interactions with local officials
Finally, the IJ took issue with the fact that Yi’s declaration did not mention
that village committee meeting members inquired into Zheng’s whereabouts or that
he lied to them to conceal her flight. As we have already discussed, such an
omission does not support an adverse credibility finding. Indeed, it requires no
great leap to imagine why a Chinese citizen might be reluctant to draft and submit
a signed document stating that he lied to government authorities to assist his wife’s
escape. This factor also was not the proper basis for the IJ’s credibility finding.
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Because the IJ’s credibility finding had no proper evidentiary basis, the
record compels us to conclude that it was not supported by substantial evidence.3
IV.
Even if the IJ’s credibility determination was supported by substantial
evidence—and it was not—the IJ also erred by failing to consider corroborating
record evidence. After making an adverse credibility determination, the IJ is still
required to “consider all evidence introduced by the applicant.” Forgue, 401 F.3d
at 1287; see also Carrizo, 652 F.3d at 1332. Here, Zheng submitted one
government document confirming that she was arrested and fined for her religion
and another stating she would face severe punishment if she does not recant her
religious beliefs. These both corroborate Zheng’s claim of past persecution and
support a credible fear of future persecution if she were returned to China. Yet the
IJ did not consider these documents. Nor did the IJ give any reasons for
disregarding the declarations of Zheng’s husband and neighbor, which corroborate
the core claims of Zheng’s asylum application. Rather, the IJ “reli[ed] solely on an
3 The IJ also noted that, whereas Zheng testified that she was detained for 11 days, her neighbor’s declaration stated that Zheng was detained for 12 days. It is unclear whether the IJ relied on this discrepancy in making his credibility finding, as he described it as “just an initial inconsistency and the Court points it out for the purpose of making the record clear in this case.” AR at 87. Even if the IJ relied on it, the BIA did not adopt this portion of the opinion, instead relying on other purported discrepancies, so we are not required to review it. See Kazemzadeh, 577 F.3d at 1350.
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adverse credibility determination” in denying Zheng’s claim. Forgue, 401 F.3d at
287. This is not permitted under this Court’s precedent and independently
warrants remand.
V.
As to her political asylum claim based on China’s one-child policy, Zheng
acknowledges that the harm she suffered on account of this policy “might not have
amounted to persecution.” Appellant Br. at 29. She also acknowledges that
China’s “policy has changed” and her prior violation of that policy demonstrates
her fear “[t]o a much lesser degree” than her religion. Id. at 46. Considering
Zheng’s concession that China no longer enforces a one-child policy, substantial
evidence supports the BIA’s conclusion that she cannot show a well-founded fear
of future persecution based on her violation of this policy. She also cannot satisfy
the more stringent requirements for withholding of removal or CAT protection on
this ground.
VI.
For the above reasons, we reverse the agency’s adverse credibility finding
and remand for further proceedings. We affirm the denial of Zheng’s petition for
asylum, withholding, and CAT relief on the basis of political persecution for her
violation of China’s one-child policy.
PETITION GRANTED.