UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1031
YAN DAN LI,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A77-977-373)
Argued: January 31, 2007 Decided: March 15, 2007
Before WILKINS, Chief Judge, and WILLIAMS and DUNCAN, Circuit
Judges.
Petition for review granted; vacated in part and remanded by
unpublished per curiam opinion.
ARGUED: S. Vanessa von Struensee, Arlington, Virginia, for
Petitioner. James Arthur Hunolt, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C., for
Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney General,
Civil Division, Sara Ann Ketchum, Tax Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yan Dan Li, a native of the People’s Republic of China (PRC),
petitions for review of the order of the Board of Immigration
Appeals (BIA) denying her applications for asylum under 8 U.S.C.A.
§ 1158(b) (West 2005 & Supp. 2006), withholding of removal under 8
U.S.C.A. § 1231(b)(3) (West 2005 & Supp. 2006), and protection under
the United Nations Convention Against Torture (CAT). Li contends,
inter alia, that the immigration judge (IJ) denied her asylum and
withholding of removal applications based on an improper application
of the “corroboration rule,” under which an asylum applicant may be
required to present evidence corroborating her testimony even when
that testimony is deemed credible. Because the IJ, in assessing
Li’s applications for asylum and withholding of removal, did not
explain why corroboration of Li’s testimony was required, we remand
to allow the IJ to provide such an explanation. We also hold that
the IJ’s denial of Li’s application for protection under the CAT was
supported by substantial evidence because Li cannot show that it is
more likely than not that she would be tortured upon return to the
PRC. Accordingly, we grant Li’s petition for review, vacate in part
the BIA’s order, and remand.
I.
Li was born on December 20, 1977, in Fuzhou City, Fujian
province, China. Before leaving to come to the United States, she
2
lived with her parents and worked at a fashion boutique in their
village. Li has two brothers who continue to live with her parents
and a married sister who also lives in the Fuzhou City area.
Li left China in the summer of 2001 after her family paid a
“snakehead”1 to secure her passage from China to the United States,
and she arrived in the United States a few months later. Within a
year of her arrival, Li married Tak Yan Cheng, a United States
citizen, on June 3, 2002.2
On October 5, 2001, the Immigration and Naturalization Service
(now reorganized within the Department of Homeland Security) issued
1
A “snakehead” is a smuggler who transports Chinese immigrants
from China to the United States and other countries. See Zheng v.
Ashcroft, 332 F.3d 1186, 1189 (9th Cir. 2003).
2
In January 2006, Li filed an application for adjustment of
status based on her marriage to a United States citizen. Under 8
C.F.R. § 1245.1(c)(8), an arriving alien who is in removal
proceedings is barred from adjusting status. 8 C.F.R. §
1245.1(c)(8) (2006). In a letter submitted after briefing pursuant
to Federal Rule of Appellate Procedure 28(j), Li notified us that
four courts of appeals have struck down 8 C.F.R. § 1245.1(c)(8) and
that an interim rule has been promulgated that will do away with
the absolute bar on an arriving alien’s ability to adjust status
while in removal proceedings. Li filed a motion to reconsider with
the BIA based on this argument, but the BIA denied the motion. Li,
however, did not file a petition for review of the BIA’s denial of
her motion to reconsider and did not challenge the validity of 8
C.F.R. § 1245.1(c)(8) in her opening brief. Because Li did not
present this issue in her opening brief, and because the argument
about the regulation’s validity was available to her at the time
she filed her brief, we decline to pass on the validity of the
regulation in this appeal. See United States v. Leeson, 453 F.3d
631, 638 n.4 (4th Cir. 2006)(“[C]onsidering an argument advanced
for the first time in a Rule 28(j) filing is not only unfair to the
appellee, it also creates the risk of an improvident or ill-advised
opinion being issued on an unbriefed issue.”).
3
Li a Notice to Appear charging her with being subject to removal
pursuant to 8 U.S.C.A. § 1182(a)(7)(A)(i)(I) (West 2005 & Supp.
2006). Li conceded removability and sought asylum, withholding of
removal, and protection under the CAT.
According to her testimony at her removal hearing, Li left
China because she faced arrest for her refusal to marry the “village
head,” a local government official. Li testified that on January
6, 2001, the village head came to her parents’ home and proposed to
her. Knowing that Li had no interest in marrying a man nearly
twenty years her senior, Li’s parents immediately rejected the
village head’s proposal on her behalf. In response, the village
head arrested Li’s mother and jailed her for two to three weeks for
practicing Falun Gong,3 destroyed her parents’ furniture, and
threatened to arrest Li. Li testified that she had heard of other
girls being forced to marry local government officials under threat
of incarceration or destruction of family property, although she
could not recount any details of these incidents. As a result of
3
“Falun Gong is an international movement, though primarily
Chinese, that is often referred to as a ‘religion’ (or, by its
critics, as a ‘cult’), though it is not a religion in the Western
sense. Like other Asian ‘religions,’ such as Buddhism and
Confucianism- on both of which Falun Gong draws- there is no deity.
The emphasis is on spiritual self-perfection through prescribed
physical exercises; in this respect the movement has affinities
with traditional Chinese medicine.” Iao v. Gonzales, 400 F.3d 530,
532 (7th Cir. 2005). The Chinese government has made the practice
of Falung Gong unlawful. “As Falun Gong is neither theistic nor,
so far as appears, political, the ferocious antipathy to it by the
Chinese government - that government’s determination to eradicate
it root and branch - is mysterious, but undeniable.” Id.
4
these acts of retaliation, Li testified that she briefly went into
hiding in a classmate’s home in a neighboring village. When asked
what she thought would happen to her upon return to China, Li
responded, “I . . . will be sent into the jail . . . . because [the
village head will] accuse me that I was a member of Falun Gong and
I left China illegally.” (S.A. at 77.)4
In response to Li’s testimony, the IJ questioned her about her
failure to provide evidence corroborating her testimony.
Specifically, the IJ focused on Li’s failure to produce any letters
from her family members and classmate to substantiate her claims of
retaliation against her family. When the IJ asked Li why she had
not come with letters from her family in hand, Li responded that she
did not know that such letters were needed, but that she could ask
for letters if necessary.
In an oral decision, the IJ denied Li’s asylum application.
While the IJ made passing references that implied doubt about Li’s
credibility, the IJ did not make an explicit finding that Li’s
testimony was not credible. Instead, in denying Li’s asylum
application, the IJ focused on her failure to provide corroborating
evidence in the form of letters from her family and friends.
Concerning Li’s claim of fear of future persecution, the IJ stated
that there was a “singular lack of corroborating documentation and
evidence in this case” (J.A. at 39), noting that “[Li] could’ve
4
“S.A.” refers to the Supplemental Appendix. “J.A.” refers to
the Joint Appendix.
5
asked for some type of corroborating documentation by way of
affidavits or even letters” that “very curiously” were not
forthcoming from her family, (J.A. at 40). The IJ repeatedly stated
that Li had produced “no evidence” that corroborated her testimony
and found that her claim of fear of future persecution was undercut
by the fact that her family remained in the same town where the
village head resides, apparently unharmed. The IJ rejected as “not
satisfactory” Li’s explanation that she did not know such
corroboration was needed. (J.A. at 40.) Because of her
determination that Li could not demonstrate the threshold well-
founded fear of persecution necessary for asylum, the IJ did not
reach the question of Li’s membership in a particular social group.
The IJ then concluded that Li was necessarily ineligible for
withholding of removal given her ineligibility for asylum and held
that Li was not entitled to protection under the CAT because she had
not produced any evidence showing that it was more likely than not
that she would be tortured upon return to the PRC. Li appealed, and
the BIA summarily affirmed and adopted the IJ’s decision in a
written opinion, briefly discussing the bases for the IJ’s decision.
On January 6, 2006, Li filed a petition for our review of the BIA’s
final order of removal. We have jurisdiction pursuant to 8 U.S.C.A.
§ 1252 (West 2005 & Supp. 2006).
6
II.
A.
An alien seeking asylum must demonstrate that she is unable or
unwilling to return to her country of origin because of persecution,
or a well-founded fear of persecution, on account of her race,
religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C.A. § 1101(a) (West 2005 & Supp. 2006).
An alien seeking withholding of removal bears a higher burden of
proof: she must demonstrate that “it is more likely than not” that
she would be persecuted if removed to the proposed country of
removal. INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987).
The BIA’s decision that an alien is not eligible for admission
to the United States is conclusive unless manifestly contrary to
law. 8 U.S.C.A. § 1252(b)(4)(C). We review the BIA’s
administrative findings of fact under the substantial evidence rule:
we must treat them as conclusive “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C.A. §
1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)(stating that an appellate court must uphold the BIA’s factual
findings if they are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole” (internal
quotation marks omitted)). Of course, we review de novo legal
questions determined by the BIA, Blanco de Belbruno v. Ashcroft, 362
F.3d 272, 278 (4th Cir. 2004), affording appropriate deference to
the BIA’s interpretation of the Immigration and Naturalization Act
7
and any attendant regulations, Christensen v. Harris County, 529
U.S. 576, 586-88 (2000)(stating that Chevron deference should be
afforded to an agency’s interpretation of an ambiguous statute and
Auer deference to an agency’s interpretation of its own regulation).
Because the BIA adopted the IJ’s decision and briefly discussed some
of the bases for that decision, we review both the IJ’s decision and
the additional reasoning supplied by the BIA in its written order.
See Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir. 1995);
Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004)(“[W]hen the BIA
both adopts the findings of the IJ and discusses some of the bases
for the IJ’s decision, we have authority to review the decisions of
both the IJ and the BIA.”).
B.
While Li makes multiple challenges to the IJ’s denial of her
applications for asylum and withholding of removal, Li’s most
compelling argument is that the IJ denied her a fair and meaningful
hearing by misapplying the so-called “corroboration rule” to deny
her asylum application for lack of corroborating evidence, without
first making an explicit credibility finding about her testimony and
without adequately explaining why corroboration was required. The
corroboration rule is based on the BIA’s interpretation of 8 C.F.R.
§ 208.13(a) (2006), which provides, in pertinent part, that for
purposes of establishing eligibility for asylum, “[t]he testimony
of the applicant, if credible, may be sufficient to sustain [her]
8
burden of proof without corroboration.” Id. “Although on its face
this regulation establishes a condition under which corroboration
is not necessary,” Gontcharova v. Ashcroft, 384 F.3d 873, 876 (7th
Cir. 2004), the BIA has interpreted the phrase “may be sufficient”
to mean that an applicant’s credible testimony will not always be
sufficient to meet her burden of proof, see In re S-M-J, 21 I & N.
Dec. 722, 725 (BIA 1997)(stating that “where it is reasonable to
expect corroborating evidence for certain alleged facts pertaining
to the specifics of an applicant’s claim, such evidence should be
provided”).
The corroboration rule is relevant only if the applicant’s
testimony is otherwise credible. Li contends that because the IJ
did not make an express adverse credibility finding about her
testimony, it must be accepted as credible. We agree and conclude
that there is a presumption of credibility when an IJ fails to make
an explicit adverse credibility finding.5 See, e.g., Kalubi v.
Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004)(“Testimony must be
accepted as true in the absence of an explicit adverse credibility
finding.”); Canales-Vargas v. Gonzales, 441 F.3d 739, 741 n.1 (9th
Cir. 2006)(same). This presumption is in harmony with Congress’s
5
In an unpublished opinion, Tchaya v. Ashcroft, 106 F. App’x
174, 179 (4th Cir. 2004)(unpublished), we previously rejected a
presumption of credibility when an IJ does not make an explicit
adverse credibility finding. See id. (rejecting the contention
that a presumption of credibility exists when no adverse
credibility determination is made). Because unpublished opinions
are not binding precedent within this circuit, see Local Rule
36(c), we are not bound to follow the Tchaya court’s reasoning.
9
amendments in the REAL ID Act of 2005, Pub. L. No. 109-13, §
101(a)(3)(B)(iii), 119 Stat. 302, 303 (2005). While not applicable
to Li’s case, the Act amended 8 U.S.C.A. § 1158(b) so that the
statute now provides that “if no adverse credibility determination
is explicitly made, the applicant or witness shall have a rebuttable
presumption of credibility on appeal.” 8 U.S.C.A. §
1158(b)(1)(B)(iii).
Some of the IJ’s statements at Li’s removal hearing strongly
implied doubt about Li’s credibility. (See, e.g., J.A. at 40 (“[Li]
could’ve asked . . . for some type of corroborating documentation
. . . . But, very curiously, there has been absolutely nothing
forthcoming from the family.”).) Indeed, the IJ’s focus on Li’s
failure to provide corroborating evidence suggests that the IJ
questioned the veracity of Li’s testimony about the village head’s
treatment of her family subsequent to his marriage proposal to Li.
Moreover, the IJ assumed that Li’s testimony did not count as
“evidence” of her plight, as she repeatedly stated that Li had
presented “no evidence” that she or her family has suffered any
maltreatment at the hands of the village head. While these
statements easily lead to the inference that the IJ was skeptical
of Li’s testimony, they do not amount to an explicit adverse
credibility finding. For an IJ’s credibility finding to be
explicit, the IJ must state in no uncertain terms that he finds that
the applicant’s testimony is or is not credible; “a passing
reference implying doubt about an applicant’s credibility” simply
10
will not do. Diallo v. Gonzales, 439 F.3d 764, 766 (7th Cir. 2006);
see also Nakibuka v. Gonzales, 421 F.3d 473, 479 (7th Cir.
2005)(holding that an IJ failed to make an explicit credibility
finding even though he remarked that the applicant’s testimony was
“vague and confusing” as well as “exaggerated”). Because the IJ did
not make an explicit adverse credibility finding, we presume Li’s
testimony to be credible and turn to the application of the
corroboration rule.
C.
Although the BIA’s interpretation of 8 C.F.R. § 208.13(a) --
i.e., that an applicant’s testimony alone will not always be
sufficient to meet her burden of proof -- is worthy of deference,
see Auer v. Robbins, 519 U.S. 452, 461 (1997)(stating that courts
must defer to an agency’s interpretation of its own regulation,
treating that interpretation as “controlling unless plainly
erroneous or inconsistent with the regulation.” (internal quotation
marks omitted)), that interpretation does not necessarily spell
victory for the Government in this case. An IJ must still explain
why corroboration is required in a given case, lest the regulation’s
pronouncement that an applicant’s testimony alone may be sufficient
to meet her burden of proof be rendered meaningless. It is clear
in Li’s case that the IJ did not explain why Li should have provided
corroboration of her testimony.
11
While the IJ asked Li several times if she had asked her family
members and friends for letters to substantiate her testimony, the
IJ never explained why such letters were necessary for Li to meet
her burden of proof. Instead, in ruling on whether Li had
established a well-founded fear of future persecution, the IJ simply
stated that “there was a singular lack of corroborating
documentation and evidence in this case.” (J.A. at 39.) While this
statement may well reveal that the IJ simply did not believe Li’s
testimony, it does not amount to an explanation of why corroboration
was required in her case. In fact, because the IJ failed to make
an explicit adverse credibility finding, it is unclear from the IJ’s
decision whether the IJ required corroboration because she did not
believe Li or because the IJ determined that such corroboration was
necessary for Li to meet her burden of proof despite her testimony
being credible. We therefore remand this matter to the BIA because
the IJ denied Li’s asylum application for failure to provide
corroborating evidence without explaining why such corroboration was
needed, thus making it difficult, nigh impossible, for us to conduct
our already-circumscribed review of the IJ’s decision.6 Because
the IJ denied Li withholding of removal based on her earlier
analysis of Li’s asylum application, we remand with respect to Li’s
application for withholding of removal as well.
6
On remand, of course, the IJ also retains the discretion to
make an explicit credibility determination in the first instance,
notwithstanding our invocation of a presumption of credibility.
12
III.
Li also contends that the IJ erred in denying her application
for protection under the CAT. CAT claims are analytically distinct
from asylum and withholding claims and are judged under a different
standard. Camara v. Ashcroft, 378 F.3d 361, 371-72 (4th Cir. 2004).
An applicant for protection under the CAT bears the burden of
establishing “that it is more likely than not that . . . she would
be tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2) (2006); Camara, 378 F.3d at 371.
We conclude that substantial evidence supports the IJ’s denial
of Li’s application for protection under the CAT. Li did not
produce any evidence before the IJ that suggests that she would be
tortured upon removal to the PRC. While Li’s mother was arrested
and jailed for her practice of Falun Gong, there is no indication
that her mother was tortured while she was detained. We therefore
find no error in the IJ’s denial of Li’s CAT application.
IV.
Finally, Li invites us to hold that she is a member of a
“particular social group” as that phrase is used in 8 U.S.C.A. §
1101(a)(42), namely, that her statutorily cognizable group is
comprised of “young Chinese women who oppose forced, coerced or
involuntary marriages.” (Appellant’s Br. at 16-17.) We must
decline this invitation.
13
Because the IJ determined that Li had not demonstrated a well-
founded fear of persecution, she never reached the question of Li’s
membership in a particular social group. Under the so-called
“ordinary remand” rule, “[a] court of appeals is not generally
empowered to conduct a de novo inquiry into the matter being
reviewed and to reach its own conclusions based on such an inquiry.”
Gonzales v. Thomas, 126 S. Ct. 1613, 1614-15 (2006)(per
curiam)(internal quotation marks omitted). Instead, the appropriate
course, “except in rare circumstances, is to remand to the [BIA] for
additional investigation or explanation.” INS v. Ventura, 537 U.S.
12, 16 (2002)(per curiam)(internal quotation marks omitted). This
is not the “rare” case spoken of in Ventura.
V.
For the foregoing reasons, we grant Li’s petition for review
of the BIA’s final order of removal. We vacate in part the BIA’s
order because the IJ misapplied the corroboration rule with respect
to Li’s applications for asylum and withholding of removal. On the
other hand, we affirm that portion of the BIA’s order relating to
Li’s application for relief under the CAT. We remand to the BIA for
such further proceedings as may be appropriate.
PETITION FOR REVIEW GRANTED;
VACATED IN PART AND REMANDED
14