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Qiu v. Barr

United States Court of Appeals, Ninth Circuit

December 11, 2019

Lizhi Qiu; Xiaojie Wu, Petitioners,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted November 14, 2019 Pasadena, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A087-876-023 A087-876-024

          William Kiang (argued), Alhambra, California, for Petitioners.

          Andrea Gevas (argued) and Scott M. Marconda, Trial Attorneys; Keith I. McManus, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and James Donato, [*] District Judge.

         SUMMARY[**]

         Immigration

         The panel granted a petition for review of the Board of Immigration Appeals' decision affirming an immigration judge's denial of asylum and related relief, and remanded, holding that substantial evidence did not support the IJ's adverse credibility determination.

         The panel held that in making the adverse credibility determination, the IJ erred by relying, in part, on an asylum officer's assessment of petitioner's credibility. Noting that an asylum officer's Assessment to Refer merely sets in motion a merits hearing at which an IJ takes evidence and makes independent findings concerning that evidence, the panel held that an IJ may not rely on an asylum officer's subjective conclusions about a petitioner's demeanor or veracity at an earlier interview. The panel also noted that the asylum officer's suspicion that petitioner was feigning illness at her asylum interview was pure speculation, which cannot support an adverse credibility finding in any event.

         The panel held that the IJ erred by relying on omissions in detail from petitioner's asylum statement to conclude that she was not credible. The panel explained that where, as here, a petitioner's testimony was consistent with, but more detailed than, her asylum application, the petitioner's testimony is not "per se" lacking in credibility. The panel concluded that it was not reasonable for the IJ to find petitioner less credible merely because her statement did not identify the specific date of her forced abortion or the names of the family planning director and hospital staff who were involved.

         The panel held that the record did not support the IJ's finding that petitioner testified inconsistently about why she did not participate more fully in her asylum interview, and whether she requested that her case be forwarded to immigration court, and that even if there were any discrepancies, petitioner provided a reasonable and plausible explanation for such discrepancies, which in any event were too trivial to support an adverse credibility determination.

         The panel held that the IJ erred by relying on impermissible speculation in concluding that petitioner lied about her residence being in California so that she could apply through the "backlogged" immigration court in Los Angeles and delay her application. The panel also held that the IJ should have given petitioner notice and an opportunity to explain any discrepancies concerning her state of residence.

         The panel held that the Board impermissibly engaged in factfinding when it found that the Proof of Diagnosis petitioner submitted to establish her forced abortion was similar to abortion certificates other courts of appeals have found actually undermined a claim of forced abortion. The panel pointed out that the IJ did not comment on that aspect of petitioner's evidence, but instead concluded that petitioner's corroborating evidence was insufficient because it was not authenticated or notarized.

         Because the IJ's grounds for finding petitioner not credible were not supported by substantial evidence, the panel held that the IJ should have given petitioner notice and an opportunity to present additional corroborating evidence, including her husband's testimony, and authentication for the Proof of Diagnosis certificate. The panel concluded that the IJ therefore erred in relying on the lack of corroboration to support the adverse credibility determination.

          OPINION

          GRABER, Circuit Judge.

         Petitioner Lizhi Qiu, a native and citizen of China, applied for asylum. She alleged that Chinese government officials subjected her to a forced abortion. An immigration judge ("IJ") denied relief on the ground that Petitioner's testimony was not credible, and the Board of Immigration Appeals ("BIA") dismissed her appeal. Petitioner timely sought our review. We grant the petition and remand.

         BACKGROUND

         Petitioner was admitted to the United States in August 2009 as a non-immigrant student to study at Valparaiso University in Indiana. In December 2009, her husband, Xiaojie Wu, was admitted to the United States as a nonimmigrant spouse of a non-immigrant student. Both Petitioner and her husband are natives and citizens of China and are Han Chinese by ethnicity. They have two children, a son who was born in China in March 2008 and a daughter who was born in the United States in February 2013.

         In April 2010, Petitioner concluded her studies at Valparaiso, thus terminating her non-immigrant status. In May 2010, Petitioner filed an application for asylum in California, where she stated she was currently residing. She asserted that the Chinese government had forced her to abort a pregnancy in September 2008 and that she feared that, if returned to China, she would be forced to abort any future pregnancies. See 8 U.S.C. § 1101(a)(42) (2000) (providing that a person who has been physically subjected to a forced abortion is entitled to refugee status). Her husband is a derivative applicant.

         Petitioner appeared at an asylum interview in July 2010, along with her lawyer. At the interview, Petitioner asked to correct the dates of her attendance at Valparaiso because she was no longer attending classes there, although she had not notified the school. In his Assessment to Refer, the asylum officer stated that Petitioner became "evasive" when he asked why she had not informed the school. The officer left the room to talk with a supervisor; when he returned, Petitioner said that she did not feel well and wanted to leave.

         In the Assessment to Refer, the asylum officer wrote that Petitioner declined to reschedule the interview, asserting that it was "not necessary" because she wanted to be referred to immigration court. But Petitioner did agree to answer some of the asylum officer's further questions. She described the forced abortion that had occurred in September 2008 and said that she feared that, if she returned to China, the government would force her to abort any future pregnancies as well. Petitioner then repeated that she felt unwell and declined to continue the interview. The asylum officer referred Petitioner to immigration court because he concluded that she had failed to meet her burden of proof.

         The merits hearing before an IJ took place more than five years later, in September 2015. Petitioner testified that she and her husband lived in Inner Mongolia when they had their son in March 2008. Six months later, in September 2008, the local family planning director came to Petitioner's home and took her to the hospital for the insertion of an intrauterine device ("IUD"). But a pre-operative urinalysis showed that Petitioner was pregnant. Petitioner testified that she wanted to keep the baby, but the family planning director told her that she must have an abortion immediately. Petitioner said that she begged to be allowed to keep the baby, offered to pay a fine, and tried to run away, but she was physically restrained by the family planning office staff and forced to have an abortion 30 minutes later. The procedure took about 20 minutes. Afterward, Petitioner returned home. Her husband learned about the abortion when he got home later the same day. Petitioner also testified that she had an IUD inserted sometime after the abortion, but had it removed in July 2009 before she left China.

         On cross-examination, the government questioned Petitioner about her asylum interview. Petitioner testified that she did not remember whether she told the officer that she felt ill, whether she refused to reschedule, or whether she had requested that her case be referred to immigration court. Petitioner testified that she was "very nervous" during the asylum interview and "only listen[ed] to whatever the interpreter at that time told me." Petitioner admitted that she knows ...


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