FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEI LI,
Petitioner, No. 06-73365
v.
Agency No.
A078-119-045
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 3, 2010—Pasadena, California
Filed January 19, 2011
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and Jack Zouhary, District Judge.*
Opinion by Judge Goodwin;
Dissent by Judge Zouhary
*The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
1071
1074 LI v. HOLDER
COUNSEL
Douglas Ingraham, Alhambra, California, for the petitioner.
Kevin J. Kijewski, Department of Justice, Washington, D.C.,
for the respondent.
OPINION
GOODWIN, Senior Circuit Judge:
Lei Li, a native and citizen of the People’s Republic of
China, petitions for review of a Board of Immigration
Appeals (“BIA”) decision affirming an immigration judge’s
(“IJ”) denial of his application for asylum, withholding of
removal, and relief under the Convention Against Torture.
Li’s petition was denied based on an adverse credibility deter-
mination. We have jurisdiction to review under 8 U.S.C.
§ 1252. We reverse the adverse credibility determination and
remand to the agency for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
Li alleges the following facts. He became a Christian on a
business visit to Korea during Christmas, 1999. After his
LI v. HOLDER 1075
return to China, he hosted an underground house church,
which authorities raided in April 2001, holding Li in detention
for 19 days. The Chinese security authorities interrogated and
beat him on a number of occasions. He was released after he
confessed, his brother posted a bond of 6000 Renminbi, and
Li signed a letter of guarantee promising he would not partici-
pate in house church gatherings. Losing his job over the inci-
dent, and denied the opportunity to practice Christianity, he
traveled to the U.S. on a visitor visa.
Deportation hearings began when Li was found to have
violated his visa by working. He made several attempts to
apply for asylum, submitting a completed application on April
24, 2003, including a petition for withholding from removal
under the Convention Against Torture.
At a hearing on the merits on January 26, 2005, an immi-
gration judge made an adverse credibility finding based pri-
marily on her belief that Li failed to demonstrate credible
evidence that he is a Christian. In support of the adverse cred-
ibility finding, the IJ noted Li’s evasive demeanor, inconsis-
tency, lack of documentary proof, and failure to answer
adequately what she considered basic questions about Chris-
tianity. Specifically, the IJ pointed to four facts that concerned
her. Li claimed that Thanksgiving was a Christian holiday. Li
knew little about the differences between the Old and New
Testaments. Li testified inconsistently regarding whether he
ever lived in Minnesota. And Li offered no documentary
proof of his Christian beliefs. However, the IJ noted that, had
a credibility finding been made, Li’s application for asylum
would most likely have been granted.
The BIA affirmed the IJ’s decision, noting the points just
discussed. For the reasons that follow, we reverse the adverse
credibility determination and remand for further proceedings.
II. STANDARD OF REVIEW
Li filed his application for asylum before the May 11, 2005
effective date of the REAL ID Act. Under the pre-REAL ID
1076 LI v. HOLDER
Act standards, this court reviews adverse credibility determi-
nations under a substantial evidence standard. Joseph v.
Holder, 600 F.3d 1235, 1240 (9th Cir. 2010). The adverse
credibility finding will be upheld unless the evidence compels
a contrary result. Id.
The BIA reviewed for clear error the IJ’s findings of fact
and adopted the IJ’s findings of fact as its own. The adverse
credibility determination of the IJ was reviewed by the BIA
for clear error.1 The BIA repeated each of the IJ’s reasons for
finding adverse credibility. Therefore, it is the IJ’s fact-
finding and the IJ’s rationale for adverse credibility that are
reviewed here. See Tekle v. Mukasey, 533 F.3d 1044, 1051
(9th Cir. 2008).
III. DISCUSSION
A. There is a lack of substantial evidence to base adverse
credibility on the finding that Li is not a Christian.
Refugee status can be granted as a result of past persecution
plus a well-founded fear of future persecution in the home
country, based on an applicant’s religion. See 8 U.S.C.
§ 1101(a)(42)(A). Li identifies himself as a Christian and
claims religion as the basis of his persecution in China. We
must decide whether there is substantial evidence to support
the IJ’s determination that Li is not a Christian.
[1] To meet a substantial evidence standard of review, the
IJ’s opinion must “provide a legitimate articulable basis for
challenging an applicant’s credibility, and must offer a spe-
cific, cogent reason for any stated disbelief.” Zi Lin Chen v.
Ashcroft, 362 F.3d 611, 617 (9th Cir. 2004) (internal quota-
tion marks, brackets, and ellipses omitted). An IJ’s perception
1
In its decision the BIA wrote, “We find the Immigration Judge’s denial
of the respondent’s application on credibility grounds to be supported by
the record and devoid of clear error.”
LI v. HOLDER 1077
of a petitioner’s ignorance of religious doctrine is not a proper
basis for an adverse credibility finding. Cosa v. Mukasey, 543
F.3d 1066, 1069-70 (9th Cir. 2008); see also Jiang v. Gon-
zales, 485 F.3d 992, 995 (7th Cir. 2007) (noting that the State
Department’s Profile of Claims “informs adjudicators that
‘because of a lack of access to religious training and litera-
ture, some committed Chinese Christians may have difficulty
responding to’ simple doctrinal questions”).
[2] The IJ’s finding that Li is not a Christian articulates
two specific points in support.2 First, Li thought Thanksgiving
was a Christian holiday. Li is in good company. President
Washington first declared Thanksgiving as a day of public
prayer to acknowledge Almighty God. The Thanksgiving
Proclamation, New York, October 3, 1789. President Lincoln
established the modern holiday as “a day of Thanksgiving and
Praise to our beneficent Father who dwelleth in the Heavens.”
Proclamation of Thanksgiving, Washington, D.C., October 3,
1863. Of course, the original source of the Thanksgiving holi-
day was a celebration by the Pilgrims, a sect of Christians that
had escaped religious persecution in Europe. Millions of
native-born American Christians undoubtedly think of
Thanksgiving as a Christian holiday. Although possibly show-
ing some confusion3 about the holiday, Li ultimately limited
2
In addition to these two points, the BIA also noted that “the respon-
dent’s answers as to basic tenets of Christianity were not compelling evi-
dence to sustain alone a finding that he was credible.” The BIA did not
attempt to define the basic tenets of Christianity. Further, Li did not offer
these answers “alone” as his only basis for credibility in his assertion that
he is a Christian. But as the BIA has adopted and affirmed the IJ’s find-
ings of fact and rationale for adverse credibility, it is the IJ’s opinion that
this court reviews. Tekle, 533 F.3d at 1051. Ultimately, though, an IJ’s
perception of a petitioner’s ignorance of religious doctrine is not a proper
basis for an adverse credibility finding. Cosa, 543 F.3d at 1069-70.
3
Reviewing the January 26, 2005 merits hearing, it seems that Li was
not provided a translator fluent in English. Confusion throughout the hear-
ing record that, at first glance, may be ascribed to Li may in fact be confu-
sion in translation.
1078 LI v. HOLDER
his statement by noting that Thanksgiving was not a “pure
holy religious holiday.”
The second piece of evidence cited by the IJ in finding that
Li was not a Christian came when Li was questioned about
the differences between the Old and New Testaments. Li
could only point to the fact that the Old Testament was writ-
ten in Hebrew, while the New Testament was written in
Greek. Li’s inability to say more was viewed by the IJ as an
important factor calling Li’s Christianity into question.
Against these points, in describing his conversion to and
practice of Christianity, Li cited his belief that Jesus came to
save people from sin, that He willingly died on the cross, that
He rose from the dead on the third day, that 40 days later He
ascended into heaven, and that, in this way, He “save[s] our
lives.” Li rejected the Chinese government’s officially sanc-
tioned churches as having a “different Lord than we do. . . .
[t]heir Lord is the government, not God.” Li says his pastor
teaches “as long as you believe in God, belie[ve] Jesus, we’re
all brothers and sisters.” Further, Li has given the date and
circumstances of his conversion, testified that he organized
and hosted an underground Christian house church in China,
that he fled China because he was not able to practice his
Christian beliefs, that he has been going to a Christian church
since he arrived in Los Angeles in August 2001, the name and
address of that church and the pastor’s name, that he cele-
brates Christmas and Easter, and that he is still a Christian.
[3] The specific evidence in the IJ’s opinion that Li is not
a Christian includes only the answers to the two questions,
discussed above. The Old/New Testament answer is scant evi-
dence for such a finding. The Thanksgiving answer is no evi-
dence at all. But more importantly, an IJ’s perception of a
petitioner’s ignorance of religious doctrine is not a proper
basis for an adverse credibility finding. Cosa, 543 F.3d at
1069-70.
LI v. HOLDER 1079
[4] As a matter of law, the IJ applied the wrong standard
to find Li incredible and to deny him asylum through an
adverse credibility determination. The IJ has not stated a legit-
imate articulable basis for challenging Li’s claim that he is a
practicing Christian.
B. There is a lack of substantial evidence to base adverse
credibility on the finding that Li was evasive or incon-
sistent.
[5] We next address the charges of inconsistency and eva-
siveness.4 A minor inconsistency or incidental misstatement
that does not go to the heart of an applicant’s claim does not
support an adverse credibility determination. Zi Lin Chen, 362
F.3d at 617, 620. Absent specific examples of evasiveness or
inconsistency, a general declaration of evasiveness or incon-
sistency is insufficient to support adverse credibility. See Gar-
rovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998). When
an IJ identifies what might be substantial inconsistencies in
the evidence, she must give the petitioner a reasonable oppor-
tunity to explain any perceived discrepancies before such dis-
crepancies can serve as a basis for denial of asylum. Joseph,
600 F.3d at 1244-45.
[6] The IJ’s principal stated example of inconsistent testi-
mony concerns whether Li resided in Minnesota. It is undis-
puted that Li lived in Sioux Falls, South Dakota, a city about
ten miles from the Minnesota border, when he first arrived in
the U.S. It is also clear that Li traveled to Minnesota several
times for his initial hearings in Bloomington.
At trial, Li was asked a compound question by his own
attorney on direct examination, “Q. Did you live in the Mid-
west for a period of time? Minnesota? A. Yes.” Li soon clari-
4
The IJ also bases her adverse credibility finding on Li’s demeanor.
However, the IJ says nothing more about Li’s demeanor beyond the
charges of inconsistency and evasiveness.
1080 LI v. HOLDER
fies that he was in Minnesota only for the purpose of going
to court. The issue is revisited later on cross-examination.
“Q. And you earlier testified that you were in Minne-
sota at one point, is that correct? A. Yes, to go to the
court. Q. And when did you start living in Minne-
sota? A. I went there based on the notice to go to the
court. I usually arrive on there one day before the
court date from Los Angeles and after I finish my
court appearances I return to Los Angeles. Q. So you
are saying you never lived there? A. No. Not living
there, no.”
[7] Li answered one half of a compound question truth-
fully, he did live in the Midwest, and then quickly clarified
the issue both on his own, and again later when asked. This
is possibly another problem of translation, as evidenced by the
translator’s inability to render Li’s answers in proper English.
But in any case, this is at most a minor inconsistency or inci-
dental misstatement that does not go to the heart of Li’s claim,
and does not, therefore, support an adverse credibility deter-
mination. Zi Lin Chen, 362 F.3d at 617, 620.
On the issue of evasiveness, the IJ cites Li’s testimony on
cross-examination, specifically his claim that Thanksgiving is
a Christian holiday, and Li’s inability to distinguish the Old
and New Testaments. On the Thanksgiving issue, the IJ mis-
read the record. In her oral decision, the IJ states that Li testi-
fied that Christians all around the world celebrate
Thanksgiving. But that is not what the record shows: “Q. So
[Thanksgiving] is observed by all Christians all over the
world? A. That is not the case.” Li goes on to say that his pas-
tor told him that almost all the Christians in the world cele-
brate Thanksgiving, but the pastor also “explained to me that
Thanksgiving it’s in America.”
The IJ also noted inconsistency between Li’s testimony and
LI v. HOLDER 1081
documentary evidence in the record.5 The only specific exam-
ple cited by the IJ is Li testifying that he lived in South
Dakota for less than 20 days, not from July 2001 to March
2002 as written on his asylum application. As above, this rep-
resents a misstatement that does not go to the heart of, and
does nothing to support, Li’s claim. It does not, therefore,
support an adverse credibility determination. Id.
[8] The IJ’s lack of further specific citations of documen-
tary versus testimonial inconsistency provides this court with
no further opportunity to review the finding. Absent specific
examples of evasiveness or inconsistency, a general declara-
tion of evasiveness or inconsistency is insufficient as a basis
for adverse credibility. Garrovillas, 156 F.3d at 1013.
[9] The Thanksgiving and Old Testament/New Testament
answers, then, are the sole evidence remaining to establish Li
as evasive or inconsistent. Neither of Li’s answers can be
described as evasive. Nor are they inconsistent with other tes-
timonial or documentary evidence given by Li. The IJ has not
stated a legitimate articulable basis for challenging Li’s credi-
bility on the basis of evasiveness or inconsistency.
5
The BIA on review gives a further example of its own. The BIA
charges that Li was “circumspect” as to his address in the U.S., citing “Tr.
at 1-6; Exh. 7.” Exhibit 7 is contact information provided to the Immigra-
tion and Naturalization Service by Li. Li lists three phone numbers and
three addresses, two in South Dakota and one in California, in what
appears to be an attempt to assure that he could be contacted. One of the
addresses is annotated “home.” In every court document since March
2002, Li has given the same Alhambra home address. The BIA’s argument
about Li’s circumspect behavior is not clear. In any case, however, the
BIA adopted and affirmed the IJ’s fact finding, so it is the IJ’s fact finding
that this court reviews. Tekle, 533 F.3d at 1051. Even if this BIA finding
about addresses could be reviewed and considered as an attempt at eva-
siveness, the attempt does nothing to enhance Li’s claim, and therefore,
cannot be the basis for an adverse credibility finding. Zi Lin Chen, 362
F.3d at 620.
1082 LI v. HOLDER
C. Absent other substantial evidence of adverse credibil-
ity, corroborating evidence cannot be required.
[10] In a pre-REAL ID Act case, absent other substantial
evidence of adverse credibility, the production of corroborat-
ing evidence cannot be required. Lopez-Alvarado v. Ashcroft,
381 F.3d 847, 855 (9th Cir. 2004). When credibility is the
only issue on appeal, and once each of the IJ’s reasons for
finding adverse credibility is shown to be defective, this court
accepts a petitioner’s testimony as credible. Soto-Olarte v.
Holder, 555 F.3d 1089, 1095 (9th Cir. 2009).
IV. CONCLUSION
[11] Here, substantial evidence does not support a finding
that Li is not a Christian, nor does it support a finding that Li
was evasive or inconsistent in his testimony. Given the lack
of substantial evidence to support adverse credibility, a rea-
sonable adjudicator is compelled to find otherwise. With no
other support for an adverse credibility finding, the IJ could
not require Li to provide corroborating evidence. Li’s failure
to provide such evidence then provides no support for an
adverse credibility determination. Lopez-Alvarado, 381 F.3d
at 855. We reverse the adverse credibility determination, and
remand to the agency for further proceedings consistent with
this opinion.
REVERSED and REMANDED
ZOUHARY, District Judge, dissenting:
I respectfully dissent.
The majority concludes that there is a lack of substantial
evidence upon which the Immigration Judge (“IJ”) could have
based an adverse credibility determination. While I agree,
LI v. HOLDER 1083
based on the record before us, that support for the IJ’s deci-
sion is weak, I favor remanding this matter for clarification of
the findings by the IJ and, if necessary, for the IJ to conduct
a supplemental hearing to clarify any credibility determina-
tion.