and Submitted November 14, 2019 Pasadena, California
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
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.
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.
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.
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.
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.
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.
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.
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.
GRABER, Circuit Judge.
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.
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.
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.
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
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.
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.
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 ...