FILED
NOT FOR PUBLICATION MAY 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHENGJUN WU, No. 06-75313
Petitioner, Agency No. A097-867-637
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2011**
Pasadena, California
Before: GOODWIN, D.W. NELSON, and N.R. SMITH, Circuit Judges.
Chengjun Wu (“Wu”) petitions for review of the Board of Immigration
Appeals’ (“BIA”) denial of her applications for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). The BIA affirmed the
Immigration Judge’s (“IJ”) denial of Wu’s claims related to political persecution
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
based on a finding of adverse credibility. The BIA also affirmed the IJ’s denial of
Wu’s claims related to religious persecution, because Wu’s credibility was already
in doubt and she failed to provide corroborating evidence of her Christian faith.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we grant Wu’s petition
for review.
We review adverse credibility determinations for substantial evidence. Gui
v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (citation omitted). Under this
standard, the BIA’s determinations are to be upheld if they are supported by
“reasonable, substantial and probative evidence” in the record, Kumar v. Gonzales,
444 F.3d 1043, 1049 (9th Cir. 2006) (citations omitted), but “[m]inor
inconsistencies in the record that do not relate to the basis of an applicant’s alleged
fear of persecution, go to the heart of the asylum claim, or reveal anything about an
asylum applicant’s fear for his safety are insufficient to support an adverse
credibility finding,” Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.
2003) (citations omitted).1 When, as here, the BIA does not express disagreement
with any portion of the IJ’s decision, cites Matter of Burbano, 20 I. & N. Dec. 872,
874 (BIA 1994), and adds its own review of the evidence and the law, we review
1
This is a pre-REAL ID Act application.
2
both the BIA’s and the IJ’s decisions. See Joseph v. Holder, 600 F.3d 1235, 1239-
40 (9th Cir. 2010).
In this case, the IJ’s adverse credibility determination is based on supposed
inconsistencies between Wu’s written application and testimony related to (1)
when an intra-uterine device (“IUD”) was forcibly implanted in her body
surrounding two forced abortions2 and (2) the date petitioner was arrested by
Chinese authorities during a family church meeting.
The IJ’s first finding is simply incorrect. Wu’s written application indicated
that she was forced to have her first abortion and have an IUD implanted in 1985.
After that time, the IUD caused various health problems, so it was eventually taken
out. Wu got pregnant again in 1994, when she was forced to have her second
abortion and pay a fine. When the government attorney cross-examined Wu before
the IJ, she was asked if the IUD was implanted on the same day as her first
abortion. Speaking through a translator, Wu responded that the IUD was
implanted “immediately” after the first abortion. Upon further questioning, Wu
clarified that the IUD was implanted the “second time,” after she “went back to the
2
“[A] person who has been forced to abort a pregnancy or to undergo
involuntary sterilization . . . shall be deemed to have been persecuted on account of
political opinion.” 8 U.S.C. § 1101(a)(42).
3
hospital.” On the day of the first abortion, Wu testified that “[she] could not take
it. It was so painful [she] could not have the IUD.” After she developed health
problems, the IUD was removed and Wu got pregnant again.
The only plausible interpretation of Wu’s testimony is that it was consistent
with her written statement. When asked to clarify what she meant by the word
“immediately,” Wu said that she went back to the hospital for a second visit for the
implantation of the IUD. Because of health problems related to the IUD, it was
later removed, and she subsequently got pregnant again. The chronology of Wu’s
story–from the first forced abortion to the implantation and removal of the IUD to
the second abortion–remained the same.
The IJ’s strained interpretation of Wu’s testimony is based entirely on
ambiguity in the word “immediately,” but Wu’s meaning was made clear by her
subsequent testimony. It was too painful for her to receive the IUD on the same
day as the first abortion, so she went back to the hospital a “second time” for that
procedure. As Wu testified, “After the IUD was placed, it was later removed.
Afterwards I was pregnant.” In other words, for the IJ to think that “immediately”
meant “the same day” and “second time” meant “second abortion,” she had to
ignore the rest of Wu’s testimony. Wu never said that she received an IUD after
the second forced abortion, which took place almost a decade after the first.
4
Basing an adverse credibility determination on an applicant’s fine-grained word
usage is particularly inappropriate in cases, such as this, where there is an obvious
language barrier. Mendoza Manimbao, 329 F.3d at 662 (citations omitted). Wu’s
preferred language is Mandarin Chinese, and she used a translator throughout the
proceedings.
Even if the IJ were correct that there was an inconsistency in Wu’s
testimony, the IJ was obligated to consider and address Wu’s explanation for that
discrepancy. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009). The
“lack of consideration given to [Wu’s] proffered explanation was error and
prevents the underlying inconsistency from serving as substantial evidence to
support the IJ’s adverse credibility finding.” Id. (citations omitted). Instead of
addressing Wu’s explanation for why she did not receive the IUD on the same day
as the first abortion, the IJ once again ignored Wu’s testimony. The IJ’s oral
decision said that “[a]n invasive abortion[] obviously causes the fetus to be aborted
and brought out, thinning of the uterus wall lining, traumatic body treatment, the
lining of the uterus, thin and raw, how an IUD would be placed in a person’s body
‘immediately’ after is of question.” This is precisely the explanation that Wu
offered. The IJ cannot simply ignore that explanation and then use it to undermine
Wu’s credibility. The IJ’s finding is not supported by substantial evidence.
5
The same is true of the only other basis for the IJ’s adverse credibility
determination, which has to do with the date petitioner was arrested by Chinese
authorities during a family church meeting. Petitioner’s written statement attached
to her asylum application indicated that her arrest took place on April 27, 2003, but
she testified that the arrest happened on April 27, 2002. We have made it clear that
minor inconsistencies in the record cannot support an adverse credibility finding.
A simple mistake of one year, especially where the date is correct as to day and
month, is the very definition of a minor inconsistency. See Bandari v. INS, 227
F.3d 1160, 1166 (9th Cir. 2000).
Because neither of the IJ’s findings in support of his adverse credibility
determination constitutes substantial evidence, we grant the petition and remand to
the agency to consider whether Wu, now considered credible, has established
eligibility for asylum, withholding of removal, and relief under CAT.
On remand, the BIA should take note of the fact that the IJ should not have
demanded corroborating evidence regarding Wu’s religious faith. See Gui v. INS,
280 F.3d 1217, 1227 (9th Cir. 2002) (“[W]here allegations are otherwise unrefuted
and credible, the IJ may not require corroboration of claims.”) (citing Ladha v.
INS, 215 F.3d 889, 899 (9th Cir.2000)).
6
Petition for review GRANTED; REMANDED to the BIA for further
proceedings consistent with this disposition.
7