Zhi Wei Pang v. Bureau of Citizenship and Immigration Services

448 F.3d 102, 2006 U.S. App. LEXIS 11169, 2006 WL 1174082

• Court: Court of Appeals for the Second Circuit
• Decided: May 3, 2006
• Docket: Docket 03-40333
• Status: Published

Opinions

CEDARBAUM, District Judge:

Petitioner Zhi Wei Pang, a citizen of the People’s Republic of China, petitions for review of a July 24, 2003 order of the Board of Immigration Appeals (“BIA”) affirming the order of Immigration Judge Roxanne C. Hladylowycz (the “IJ”) denying petitioner’s request for asylum under section 208 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158, and for withholding of removal pursuant to INA Section 241(b)(3), 8 U.S.C. § 1231(b)(3). Pang argues that the IJ erred by relying on a number of improper grounds in making an adverse credibility finding. The questions presented on this petition for review are: (1) whether the IJ erred in relying on inconsistencies arising from an asylum application that was neither signed by the preparer nor sworn to by the applicant before an immigration official as a basis for reaching an adverse credibility determination without considering evidence that the applicant did not know the application’s contents; (2) whether the IJ gave the applicant adequate opportunity to address what the IJ viewed as inconsistencies in the applicant’s testimony. We hold that the IJ erred. We grant the petition for review and remand to the BIA because we cannot predict that the IJ would reach the same adverse credibility determination absent the errors that were made.

I. BACKGROUND

Pang arrived in the United States on May 15, 1993. In August of that year, Pang filed his first asylum application. After an initial immigration proceeding in October 1996, Pang’s asylum hearing was adjourned on a number of occasions. Pang had two A numbers, the first of which was opened upon his arrival in the United States near Calexico, California and the second of which was opened when he applied for asylum and withholding of removal. The confusion arising from these two numbers contributed to the delay in adjudicating Pang’s case. Pang completed a second 1-589 application for asylum and withholding of removal on May 28, 2000, shortly before his asylum hearing. He affirmed that application, but not his originally filed 1-589, at an asylum hearing on June 20, 2000. Pang sought relief based on his contention that his wife had been forcibly sterilized after the birth of their second child, that they had been harassed and fined, and that he feared further persecution if he were returned to China.

According to Pang’s testimony before the IJ, Pang’s first child, a daughter, was born on November 24, 1988. Soon after the birth of their child, Pang and his wife were visited by family planning authorities. Pang’s family was allowed only one child under the family planning policy, and the authorities required Pang’s wife to have an intrauterine device (“IUD”) inserted. The couple, however, strongly desired a son, and so Pang and his wife paid a private physician to remove the IUD. Soon after the IUD was removed, Pang’s wife became pregnant again. Several months later, as the pregnancy became visible, authorities arrived at Pang’s house and ordered his wife to report for an abortion. Pang and his wife, who had relatives visiting them at the time, convinced the authorities to permit them to report for the abortion the next morning. Instead, they fled to a relative’s house several hours away.

They remained away from home for the duration of the pregnancy, and their second child was born in a government hospital near the house in which they were hiding. Several days after Pang and his wife returned home, the authorities arrived and forcibly took his wife to undergo a sterilization procedure. In addition to the forced sterilization, the couple was fined 3000 Yuan for having more than one child. Unable to pay the entire fine, Pang and his wife paid 1500 Yuan using money borrowed from friends and relatives. Family planning officials subsequently confiscated a television and a VCR from Pang’s house. The authorities ultimately allowed Pang to register his second child in the household registration booklet. Additionally, the sterilization of Pang’s wife was poorly performed, and she became pregnant a third time. That pregnancy was ectopic, non-viable, and dangerous to his wife’s health. She underwent a medical procedure to end the dangerous pregnancy and correct the initial sterilization. After his wife’s health improved, Pang left China for the United States.

The IJ denied Pang’s application based on an adverse credibility finding. The IJ supported that finding with approximately eight aspects of Pang’s testimony which the IJ labeled as inconsistent or implausible. The BIA affirmed the IJ’s ruling without opinion.

Pang challenges the adverse credibility finding, which formed the sole basis for the IJ’s denial of his application. The eight inconsistencies identified by the IJ may be classified into two categories. First, there were several alleged inconsistencies between the statements Pang made in his 1993 application for asylum and the statements he made in his second application and at the hearing. Secondly, the IJ found that there were several other inconsistencies between Pang’s testimony at the hearing and the statements in his second application, that certain aspects of Pang’s testimony were implausible, and that Pang had omitted some significant facts from his written application. Pang argues that the IJ’s findings were based on speculation, conjecture, and flawed reasoning.

II. DISCUSSION

In cases like this, in which the BIA affirms the IJ’s order without opinion, we review the order of the IJ directly. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Furthermore, our review is confined to the reasons given by the IJ, and we will not search the record for alternative reasons to affirm the decision of the BIA. Id.

We review an IJ’s factual findings under the substantial evidence standard, reversing only if a reasonable fact finder would be compelled to reach a contrary conclusion. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We vacate the IJ’s decision, however, when the IJ’s finding is based on an error of law or when the findings are not supported by evidence in the record. Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003). The fact that an IJ or the BIA relied solely on an adverse credibility finding in dismissing an application does not insulate the decision from review. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). An adverse credibility finding must be based on specific, clear reasons with a legitimate nexus to the finding. Secaida-Rosales, 331 F.3d at 307. Inconsistent testimony can, by itself, support an adverse credibility finding, but not if the inconsistencies are minor, isolated, or peripherally related to the claim. Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000). Adverse credibility findings are improper and may be overturned when they are based on speculation, conjecture, or flawed reasoning. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005). Adverse credibility findings may also be overturned when the applicant is not given an opportunity to explain “non-dramatic putative contradictions or incongruities” in his narrative. Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.2006)

A. THE 1993 ASYLUM APPLICATION

At the hearing, Pang argued that the statements in his 1993 application for asylum were inaccurate in several respects. The fifth page of the 1993 application includes lines for three signatures. The first line requires the signature of the applicant certifying under penalty of perjury that the information in the application is true. The second line requires the signature of the preparer and certifies that the application has been read back to the applicant in his native language. The third line requires the applicant to take an oath and sign the application in front of an Asylum Officer or an Immigration Judge. The applicable regulation states that the application must be signed by the applicant and the preparer under penalty of perjury. 8 C.F.R. § 208.3(c)(2). The regulation further provides that the “applicant’s signature establishes a presumption that the applicant is aware of the contents of the application.” 8 C.F.R. § 208.3(c)(2). Pang’s 1993 application contains his signature only on the first line. The portion which requires that he sign and swear to the application in front of an immigration official is blank. In addition, the line for the preparer’s sworn representation that the application was read to the applicant for verification is also blank. But because Pang signed the first signature line under penalty of perjury, the presumption of § 208.3(c)(2) was triggered.

Pang testified that no one had ever read him the contents of the 1993 application and that he had signed it because the preparer told him to sign it. He further testified that some of the information contained in the 1993 application was incorrect and that the preparer had incorrectly reported aspects of his story.

While the fact that the 1993 application lacked several signatures does not make it unreliable per se, it does support Pang’s claim that the application was improperly prepared in other respects. Pang’s testimony is plausible, and if credited by the IJ it would have rebutted the presumption that Pang was aware of the application’s contents. The IJ, however, did not consider Pang’s explanation and did not make any findings as to the accuracy of the 1993 application or as to the weight the statements in the application should be given. Although the IJ is not required to credit Pang’s explanation, the IJ is required to present specific, cogent reasons for rejecting it. Ramsameachire, 357 F.3d at 178. Absent a reasoned evaluation of Pang’s explanations and the application’s facial deficiencies, the IJ’s reliance on inconsistencies arising from that application cannot constitute substantial evidence in support of an adverse credibility finding. Cao He Lin, 428 F.3d at 403. The IJ gave no indication that she considered Pang’s testimony on the 1993 application, and we cannot assume that the IJ considered factors that she failed to mention in her decision. Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir.1992).

The Third Circuit has reached a substantially similar conclusion. In Gui Cun Liu v. Ashcroft, 372 F.3d 529 (3d Cir.2004), that court faulted an IJ for failing to consider whether the presumption of § 208.3(c)(2) had been rebutted by the preparer’s failure to sign the form, the petitioner’s testimony that he did not know the application’s contents, and the fact that the petitioner’s statement was in English, a language which the petitioner did not speak. Id. at 534. We join the Third Circuit in holding that when a petitioner challenges the accuracy of the contents of his 1-589 application that was signed under penalty of perjury, the IJ must evaluate the petitioner’s explanations and determine whether the presumption of 8 C.F.R. § 208.3(c)(2) has been rebutted.

B. THE IJ’s OTHER FINDINGS

In addition to evidence gleaned from the 1993 application, the IJ identified several other purported testimonial flaws in making her adverse credibility finding. All of these purported flaws were either insubstantial or misidentified.

1. IUD CHECKUPS

In her oral decision, the IJ noted inconsistencies in Pang’s testimony about his wife’s IUD. The IJ stated “it is very clear that the respondent indicated earlier today that his wife had been scheduled for IUD checkups and that she missed the scheduled IUD checkup. However, later today when I asked the respondent again the same question about IUD checkups, he indicated, no, his wife never had an IUD checkup, and she was never scheduled for an IUD checkup.” (emphasis added). The record, however, does not indicate any discrepancy. In his testimony, Pang never used the word “scheduled.” At one point in his testimony, Pang stated that his wife “did not report” for IUD checkups, and at a later point he indicated that his wife was never scheduled for IUD exams by stating that she had never “reported for such an IUD inspection” because the doctors had not required it. These statements are not inconsistent. The record does not show that Pang ever testified that his wife had missed a scheduled checkup. The IJ appears to have drawn the conclusion that Pang’s wife had been scheduled for a checkup, and had missed a checkup, from the translator’s use of the word “report.” The translator, however, used that word both to explain that Pang’s wife “did not report for this [IUD] checkup” and to specify that “I don’t believe my wife has ever reported for such an IUD inspection, but only the doctors have reminded us, if everything goes well, you don’t need to come back for any inspection.” Although there may be routine scheduled IUD checkups in China, as the concurring opinion suggests, Pang’s use of the word “report” to explain that his wife had never been scheduled for an IUD checkup seriously undermines the IJ’s inference from Pang’s earlier use of that word that Pang meant that his wife had been scheduled for a checkup. On the record before us, it is clear that the IJ put words into Pang’s mouth, interpreting his statement that his wife had not “report[ed] for this checkup” to mean that his wife had not “reported for an IUD checkup when scheduled.” Although we do not choose among possible interpretations of the facts, we need not accept an IJ’s clear misinterpretation of testimony. See Zhou Yun Zhang, 386 F.3d at 74 (noting that “our review is meant to ensure that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.”)

2. THE PANGS’ FLIGHT

The IJ indicated that it made “absolutely no sense” that the Pangs would have stayed in their home village into the second trimester of the pregnancy. The IJ noted that Pang and his wife “apparently did nothing to protect this pregnancy, when they claim that they, in fact, wanted this child to be born.” The record, however, does not support this finding, which is based on impermissible conjecture and is undermined by the IJ’s failure to develop the record.

Although the government asked Pang several questions about going into hiding with his wife, the relevant questions on cross-examination were general and exploratory in nature. Neither the IJ nor the government indicated that they found anything unsatisfactory or implausible in Pang’s response on this point, nor should the questions have put Pang on notice that the IJ found his testimony insufficiently detailed or lacking in credibility. When putative inconsistencies or implausibilities are not dramatic and the need to clarify is not obvious, an IJ has an obligation to inform the petitioner that his testimony is being viewed as potentially flawed, and the IJ must give the petitioner a chance to explain. See Ming Shi Xue, 439 F.3d at 125 (holding that “an IJ may not rest an adverse credibility finding on non-dramatic putative contradictions or incongruities in an alien’s narrative without first giving the applicant a chance to reconcile the testimony”). As we recently noted, “[without this requirement, asylum applicants would frequently be denied the opportunity to clarify genuinely consistent testimony that the IJ has unwittingly misconstrued. And, conversely, immigration judges could prematurely decide that testimony is inconsistent when, in fact, the purported discrepancies readily admit of explanation which the IJ would find valid.” Id. at 122. This requirement does not mean that the IJ must duplicate the questions of the government when the government has already noted testimonial flaws on cross-examination. But when the government’s cross-examination does not put the applicant on notice of a putative flaw, the government’s cross-examination cannot absolve the IJ of the responsibility to make the applicant aware that an explanation is necessary.

Nothing in the record indicates that there is any reason for family planning officials to have known about Pang’s wife’s pregnancy during its early stages. In fact, Pang testified that his wife was “just slightly showing” at the time officials came to their house to inquire about the pregnancy. It is not clear what steps, if any, the Pangs should have taken to “protect the pregnancy” during the period when the pregnancy was not visible. The IJ’s assumption that most people in Pang’s position would have fled at an earlier point is not self-evident and is not supported by record evidence. That assumption seems to reflect what the IJ imagined she would have done in the circumstances and not a finding based on reliable generalizations about human nature. Immediate flight, in the circumstances presented here, is not such a universal human impulse that the failure to flee immediately can be automatically considered suspect.

Here, Pang was asked only if he and his wife took “any steps to avoid family planning officials” during his wife’s second pregnancy. He responded that he and his wife had left home. Any purported flaw in Pang’s testimony was not dramatic enough that the IJ was relieved from the obligation to put Pang on notice of the putative flaw and give him a chance to respond.

3. THE DELIVERY OF PANG’S SON

Pang testified that his wife gave birth to their second child at a government hospital outside of their home district and that family planning officials had not created problems for them at the hospital. The IJ found Pang’s testimony implausible, but not for the reason suggested by the concurrence — that it was implausible for hospital employees to fail to inquire about Pang’s wife’s identity, her marital and family status, or her residence given that China has a highly regulated society. Questions or concerns about what hospital employees asked the Pangs were not posed at the immigration hearing, and the IJ did not rely on this point in making an adverse credibility finding. We limit our review of an IJ’s decision to the reasons the IJ articulates. Cao He Lin, 428 F.3d at 400.

The IJ based her finding on two issues. First, the IJ opined that a “child cannot be born in China in a government hospital without a birth permit.” The IJ failed to cite any materials, reports, or personal knowledge to support this conclusion, and it is not obvious that a hospital would refuse to deliver a baby without proof that the birth did not violate family planning quotas. This finding is speculative and is not supported by substantial evidence.

Second, the IJ observed that “no cadre officials created any problems from the hospital for this respondent after the birth.” Implicit in that conclusion was the assumption that family planning officials would have been present at the hospital or that the Pangs remained there long enough to be discovered by them. The role family planning officials play in the hospital setting was not addressed at the hearing. No evidence on the topic was placed in the record. To the extent that the IJ found it implausible that hospital employees did not ask the Pangs detailed questions, Pang did not address this topic in his testimony and was not asked about the topic by the IJ. To the extent that the IJ found it implausible that family planning cadres did not cause trouble at the birth of Pang’s child, the record contains no evidence that family planning cadres can be expected to cause trouble at the hospital. The record does not provide reasons to treat hospital employees and family planning cadres as interchangeable subjects, and the role that each plays in the hospital setting is not obvious. As it stands, the IJ’s finding was not supported by the evidence. Even if the finding did have some support in the record, the putative flaw in Pang’s testimony is not dramatic enough that the IJ was relieved from the obligation to inform Pang of the putative flaw and give him a chance to respond.

4. THE 3000 YUAN FINE

Pang’s application states that he was fined 3000 Yuan and that he paid half the fine. The IJ noted that, at the hearing, Pang initially testified that he had paid only 1500 Yuan. When questioned, Pang explained his testimony and said that he had been fined 3000 Yuan but paid only 1500 Yuan. The IJ did not find this testimony, in itself, inconsistent, but instead concluded that it was implausible that Pang’s second child would have been registered in the household booklet if the couple had paid only half of the 3000 Yuan fine. The IJ cited no evidence to support the conclusion that a child could not be registered after only partial payment of a fine. Although the Department of State report does indicate that children “in excess of family planning quotas” cannot be legally registered until a family has been fined, that report is silent as to whether partial payment, or any payment at all, is a prerequisite to registration. Id. at 128. The IJ did not inquire of Pang whether the partial payment of the fine satisfied the authorities. Nor did the IJ consider whether Pang’s possessions had been confiscated in satisfaction of the fine. The IJ did not inform Pang that his testimony was being viewed as inconsistent or incredible, and the testimony was not obviously contradictory. Without some support in the record, the IJ’s finding on this issue also was based on impermissible conjecture.

An IJ has an affirmative obligation to help develop the record in immigration proceedings. Secaidar-Rosales, 331 F.3d at 306. An IJ also has an obligation to give a petitioner a chance to clarify non-dramatic contradictions and implausibilities. Ming Shi Xue, 439 F.3d at 125. We have noted that giving a petitioner the opportunity to explain purported testimonial flaws does not mean that the explanation must be credited. Id. at 126. A properly developed record, however, might have revealed enough facts to allow the IJ to determine that discrepancies existed without resorting to speculation and conjecture, or it might have convinced the IJ that the putative testimonial flaws did not actually exist. As the record stands, however, many of the discrepancies the IJ noted were not supported by substantial evidence.

5. MINOR AND COLLATERAL OMISSIONS

Finally, the IJ based the adverse credibility finding on three omissions in Pang’s second application. At the hearing, Pang testified that (1) he and his wife went into hiding together; (2) after the birth of his second child, Chinese authorities had removed possessions from his home; and (3) his wife had a third, life-threatening pregnancy due to an improper sterilization procedure. The IJ noted that Pang’s application mentioned that his wife had gone into hiding but did not mention that Pang had gone with her. Similarly, the application failed to mention the removal of possessions from Pang’s home and his wife’s ectopic pregnancy.

We have recognized that “the circumstances surrounding the application process do not often lend themselves to a perfectly complete and comprehensive recitation of an applicant’s claim to asylum or withholding, and that holding applicants to such a standard is not only unrealistic but also unfair.” Secaida-Rosales, 331 F.3d at 308. The confiscation of possessions and ectopic pregnancy are indications of the hardship that China’s family planning policies caused Pang, but they are ancillary to the heart of Pang’s claim, which concerns the circumstances giving rise to his wife’s forced sterilization. Similarly, it is questionable whether Pang’s omission about hiding with his wife “goes to the heart of [Pang’s] broader claim to asylum.” Id. at 309. This omission is not as significant as it would be if Pang were making a claim for direct persecution because of his political views, rather than for constructive persecution. We note that evidentiary discrepancies that are of less than substantial importance, such as these, “cannot form the sole basis for an adverse credibility finding,” id. at 308 (citation and internal quotation marks omitted), and therefore conclude that none of these three findings could independently constitute substantial evidence supporting the IJ’s ultimate conclusion. Even if the latter omission were significant, however, we could not predict that the IJ would reach the same result based on this factor alone. See Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158 (2d Cir.2006)(stating that we may affirm a decision of the BIA where we can predict that, despite any errors, the IJ would reach the same decision on remand).

In reaching her adverse credibility determination, the IJ failed to consider all of the probative evidence in the record, mis-characterized Pang’s testimony, and relied on speculation and minor omissions from Pang’s asylum application. In light of these errors, we cannot predict that the IJ would reach the same result in this case on remand. Remand is thus appropriate.

CONCLUSION

For the foregoing reasons, we Grant the petition for review and Remand to the BIA for further proceedings consistent with this opinion.