Xiao v. Atty Gen USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

1-25-2007

Xiao v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2170

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 05-2170

JIN YUN XIAO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of an Order of
The Board of Immigration Appeals
(No. A395-163-383)
Immigration Judge: Eugene Pugliese

Argued April 17, 2006

Before: SLOVITER, AMBRO and Michel,* Circuit Judges,

(Opinion filed January 25, 2007)

Stuart Altman, Esquire (Argued)
Law Office of Stuart Altman
264 East Broadway, Suite 1003C
New York, NY 10002

Counsel for Petitioner

*
Honorable Paul R. Michel, Chief Judge, United States Court of Appeals for the
Federal Circuit, sitting by designation.
Peter D. Keisler
Assistant Attorney General
Jeffrey J. Bernstein (Argued)
Senior Litigation Counsel
Richard M. Evans, Esquire
Nancy E. Friedman, Esquire
United States Department of Justice (Litigation)
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

Cynthia E. Messersmith, Esquire
U.S. Department of Justice, Tax Division
717 North Harwood Street, Suite 400
Dallas, TX 75201

Counsel for Respondent

OPINION OF THE COURT

AMBRO, Circuit Judge

Jin Yun Xiao petitions for our review of the order of the Board of Immigration

Appeals (“BIA” or “Board”) denying her motion to remand and affirming the denial by an

immigration judge (“IJ”) of her claims for asylum, withholding of removal, and relief

under the United Nations Convention Against Torture (“CAT” or the “Convention”).1

We deny her petition as to the CAT claim, but remand her claims for asylum and

1
United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment, G.A. Res 39/46, U.N. GAOR, 39th Sess., Supp.
No. 51, at 197, U.N. Doc. A/39/51 (1984).

2
withholding of removal.

I. Factual Background

Jin Yun Xiao is a citizen of the People’s Republic of China. She is married to

another asylum applicant, Jian Feng Chen, with whom she has two children, both born in

the United States.2 In support of her applications for relief from removal, Xiao testified

as follows.

Pursuant to China’s population and family planning laws, Xiao and other women

in her neighborhood in China were required to submit to urine tests and gynecological

exams to detect pregnancy every three months beginning at the age of 18. On one

occasion Xiao was fined when she went out of town and was unable to return in time for

her examination. Xiao also testified that her husband’s aunt had two daughters and, as a

result, was forced to undergo sterilization.3 In addition, one of her cousins, who had one

son, was forced to hide to have additional children, and her house was “dismantled” by

the government.

Xiao testified that, as a result of the frequent, invasive gynecological examinations

(allegedly rendered particularly uncomfortable because Xiao was a young, unmarried

2
Xiao and her husband met in China, were denied permission to marry by the
Chinese government because of their age, and only married legally in 2002 in the United
States.
3
The record also contains a supporting written statement from her husband’s uncle
stating that his wife was detained for failure to have a birth permit for the birth of her
child; she was sterilized and the uncle was fined.

3
woman and the doctors were men), she became depressed. A concerned friend took her

to an underground Protestant church; Xiao attended once a week and began to lead a

Bible study group in her home. She was baptized in December, 1994.

In 1995, Xiao's future husband, Chen, and several other church members were

arrested while at church. Chen was detained, interrogated about his religious activities,

and beaten over the course of three days. He left China two months later due to the

persecution he feared from the government. After the 1995 incident, church members

were forced to change meeting times and hold services at night. The record contains a

statement from Xiao’s mother-in-law that she was at the disrupted church meeting, her

son was detained and beaten for three days, and that she was detained for seven days on

the charge of causing other people to violate the public order.

Almost six years later, in April 2001, Xiao was arrested for her religious practices.

Police came to her home when she was leading a Bible study group, threatened and

cursed her, and accused her of holding an illegal gathering. She was arrested and

detained. In detention she was slapped, harassed, and deprived of food; she also testified

that the police tried to persuade her to abandon her religion. The record contains a

statement from Xiao’s church friend, who stated she was at the disrupted Bible study

meeting, that Xiao and she were brought to the police station, and that she was beaten

and detained for one day. Xiao testified that after her arrest she was required to report to

the police once a month to disclose her daily activities. She was told she would be

4
arrested if she did not report.

Xiao left China in June 2001, allegedly because she feared the government would

continue to persecute her. In the United States she attends Grace Church in the

Chinatown area of New York City. The Church’s doctrine, which Xiao claims she

believes and abides by, maintains that abortion and birth control are wrong. Her religion

prohibits her and her husband from using any birth control and they have two children, a

three year-old and an infant. They would like to have more children, but claim this

would be impossible if they return to China because of the country’s population control

laws. Xiao fears forced sterilization or forced abortion in the event she becomes

pregnant again. She also fears reprisal from the Chinese government for having left the

country without proper documentation and having had two children without obtaining a

birth permit for either one. Xiao testified also that a family member told her that police

had come to her home in China looking for her after she left the country.

II. Procedural Background

Xiao entered the United States without valid documentation. The Immigration

and Naturalization Service (“INS”)4 subsequently issued a Notice to Appear, alleging

that Xiao was inadmissible. Such a person is removable under 8 U.S.C. § 1227(a)(1).

4
On March 1, 2003, the INS was merged into the Department of Homeland
Security, and is now called the Bureau of Immigration and Customs Enforcement.
However, since the case began as an INS matter, we shall continue to refer to the INS in
this opinion.

5
Xiao conceded her removability,5 but filed an application for asylum under 8 U.S.C. §

1158 and withholding of removal under 8 U.S.C. § 1231(b)(3), and sought protection

under the CAT.

A. The IJ’s decision

IJ Eugene Pugliese denied each of Xiao’s claims on the ground that she was not

credible (and even assuming credibility, the Chinese government’s treatment of her did

not rise to the level of persecution).

1. Credibility

The IJ’s incredibility determination was based on the following four conclusions.

First, it was “not believable” that Xiao could have attended church on a weekly basis for

eight years with only two “busts” by the “incredibly competent” Chinese government.

Xiao’s contention that church members avoided detection by changing meeting times and

locations was an “implausible, not very realistic, and also unsatisfactory explanation.”

Second, the IJ found that Xiao’s demeanor was that of someone who “does not

really want to be here, [and] does not want to answer questions,” because at no point did

5
Xiao also claims she requested, in the alternative, voluntary departure. The IJ
found Xiao removable as charged and denied her requests for asylum, withholding of
removal, and protection under the CAT. The IJ did not issue a specific order regarding
voluntary departure, having noted in the body of the opinion that Xiao “had not
requested, nor qualified herself for, voluntary removal.” (Xiao notes this discrepancy in
her brief, but the Government does not mention it, and there is nothing in the record that
explains the variance.) Because we conclude that the case calls for a remand, we need
not address this issue.

6
she make eye contact with the IJ. The IJ stated that there are no cultural reasons that

would suggest Chinese people discussing abortion cases would be any less willing to

make eye contact than anyone else, so he took her reticence as evidence that she was

“ashamed” of making false statements.

Third, the IJ concluded that Xiao’s “knowledge” of the Bible did not mean she

actually has any religious beliefs, as one can be knowledgeable about something without

believing in it. (The IJ noted that Xiao “testified at some length with regard to her

knowledge of the Bible,” but “the fact that she knows something about Christianity is no

more reason to necessarily assume that she is a Christian than if someone knows

something about flying saucers to assume that they [sic] believe in flying saucers.”)

Finally, Xiao’s husband did not appear in court despite having been urged by the

IJ at the master calendar hearing to attend. The IJ interpreted his absence to mean that

Xiao and her husband feared being separated and having their testimony compared and

found to be inconsistent.

2. Persecution

The IJ’s conclusion that Xiao’s treatment did not rise to the level of persecution

was based on the following determinations. First, he stated that there was no evidence of

a pattern or practice of persecution of Christians by the Chinese government. He noted

that Christian churches are allowed to exist in China, although the requirement that

religions have to register with the government does suggest “a certain degree of

7
suppression of religion.” Moreover, he found that neither the single arrest of Xiao, nor

the mandatory gynecological exams, rose to the level of persecution. As for the exams,

the IJ observed, “[i]t may be unfair, it may be a policy that we would not want to have

here in the United States, that we would reject and that we would oppose,” but it is

insufficient to prove persecution. Finally, the IJ concluded that there was no evidence to

support Xiao’s testimony that something bad will happen to her upon her return to China

as a result of having left the country “illegally.”

B. The BIA’s decision

Xiao appealed to the BIA, arguing that the IJ erred as a matter of law in

dismissing her applications for relief. During the pendency of her appeal, she filed a

motion to remand due to changed circumstances (she became pregnant with her second

child). Specifically, Xiao argued that if she returned to China while pregnant, she would

be forced to undergo an abortion, and if she returned after giving birth, she would be

forcibly sterilized.

The BIA dismissed Xiao’s appeal, in effect affirming both the IJ’s adverse

credibility determination and his conclusion that her experiences did not constitute

persecution. In the same opinion, the BIA denied Xiao’s motion to remand, citing the

lack of evidence that China has a national policy of implementing its population control

law regarding children born outside of China and “insufficient evidence . . . that [Xiao]

will be sterilized by the Chinese authorities for the [out-of-China] birth.” Xiao filed a

8
timely petition for review to our Court.6

III. Discussion

A. Asylum, withholding of removal, and the motion to remand

1. Applicable Law

The Attorney General and his delegates may grant asylum to any alien who

qualifies as a refugee under the Immigration and Nationality Act (“INA”). 8 U.S.C. §

1158(b)(1). Thus, Xiao must demonstrate that she meets the statutory definition of

“refugee” under the INA, which is

any person who is outside any country of such person’s nationality . . . and
who is unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country because of persecution
or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion
....

8 U.S.C. § 1101(a)(42).

This definition has been amended to address specifically Congress’ concern with

coercive family planning practices, by providing, inter alia, that

a person who has been forced to abort a pregnancy or to undergo
involuntary sterilization, or who has been persecuted for failure or refusal
to undergo such a procedure or for other resistance to a coercive population
control program, shall be deemed to have been persecuted on account of
political opinion, and a person who has a well founded fear that he or she
will be forced to undergo such a procedure or subject to persecution for
such failure, refusal, or resistance shall be deemed to have a well founded
fear of persecution on account of political opinion.

6
We have jurisdiction over Xiao’s petition pursuant to 8 U.S.C. § 1252.

9
Id..

In Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993), we defined persecution as

“threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom.” See also Li v. Att’y Gen., 400 F.3d 157, 167 (3d

Cir. 2005). “An applicant who establishes that he or she has suffered past persecution on

account of one of the five grounds enumerated in the INA triggers a rebuttable

presumption of a well-founded fear of future persecution, as long as that fear is related to

the past persecution.” Singh v. Gonzales, 406 F.3d 191, 195-96 (3d Cir. 2005) (internal

quotation marks and citations omitted).

To establish a well-founded fear of future persecution, in the absence of proof of

past persecution, an applicant must first demonstrate a subjective fear of persecution

through credible testimony that her fear is genuine. Zubeda v. Ashcroft, 333 F.3d 463,

469 (3d Cir. 2003). Second, the applicant must show objectively that “a reasonable

person in the alien’s circumstances would fear persecution if returned to the country in

question.” Id. To satisfy the objective prong, a petitioner must provide evidence he or

she would be individually singled out for persecution or demonstrate that “there is a

pattern or practice in his or her country of nationality . . . of persecution of a group of

persons similarly situated to the applicant on account of race, religion, nationality,

membership in a particular social group, or political opinion . . . .” 8 C.F.R. §

208.13(b)(2)(iii)(A). “While it is unclear precisely how likely persecution must be to

10
render an applicant’s fear of future persecution well-founded, ‘[o]ne can certainly have a

well founded fear of an event happening when there is less than a 50% chance of the

occurrence taking place.’” Guo v. Ashcroft, 386 F.3d 556, 565 (3d Cir. 2004) (quoting

INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)).7 Moreover, “the acts must be

committed by the government or forces the government is either unable or unwilling to

control.” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006). Aliens have the

burden of supporting their asylum claims. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002). “[A]n applicant’s credible, persuasive, and specific testimony may suffice to

establish an objective fear of persecution.” Lukwago v. INS, 329 F.3d 157, 177 (3d Cir.

2003) (internal quotation marks and citation omitted).

2. Standard of Review

Insofar as the BIA adopts the decision and findings of the IJ, we review the latter.

Sukwanputra, 434 F.3d at 631. That is because the “IJ’s opinion effectively becomes the

BIA’s . . . .” Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). As to matters

7
Withholding of removal does not rely on the perspective of the applicant’s well-
founded fear, but is instead appropriate only if the Attorney General determines there is a
“clear probability” that the alien's life or freedom would be threatened upon her removal
to a particular country. INS v. Stevic, 467 U.S. 407, 430 (1984); see also 8 U.S.C. §
1231(b)(3)(A). Though asylum is discretionary, withholding of removal is mandatory if
the applicant shows that it is “more likely than not” he or she will be persecuted on
account of race, religion, nationality, membership in a particular social group, or political
opinion if deported to his or her home country. Lukwago v. INS, 329 F.3d 157, 182 (3d
Cir. 2003). As such, “[i]f [a petitioner] is unable to satisfy the standard for asylum, he
necessarily fails to meet the standard for withholding of removal under [the INA].” Id.

11
where the BIA issued its own opinion and did not summarily adopt the IJ’s opinion, we

review the former. Sukwanputra, 434 F.3d at 631; Li, 400 F.3d at 162.

We review the BIA’s affirmance of an IJ’s factual findings, including its

determination of whether an alien was subject to persecution or has a well-founded fear

of persecution, under a substantial evidence standard. See, e.g., Shardar v. Ashcroft, 382

F.3d 318, 323 (3d Cir. 2004). In conducting this analysis, we consider the record as a

whole and shall reverse only if “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Zheng v. Gonzales, 417

F.3d 379, 381 (3d Cir. 2005). “Adverse credibility determinations are factual findings

subject to substantial evidence review.” Zheng, 417 F.3d at 381; Tarrawally v. Ashcroft,

338 F.3d 180, 184 (3d Cir. 2003). We will defer to and uphold the IJ’s adverse

credibility determinations if they are “supported by reasonable, substantial, and probative

evidence on the record considered as a whole,” INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotations marks and citation omitted), but those findings must be based

on inconsistencies and improbabilities that “involve the heart of the asylum claim.” Gao,

299 F.3d at 272 (internal quotation marks and citation omitted).8 “[D]eference is not due

8
The REAL ID Act of 2005 changed the standards governing credibility
determinations, stating that those determinations may be made “without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
claim.” Pub. L. 109-13, div. B, § 101(a)(3), 119 Stat. 231, 303 (codified at 8 U.S.C. §
1158(b)(1)(B)(iii)). This provision, however, only applies to aliens who applied for
asylum, withholding of removal, or other relief after May 11, 2005, the effective date of
the Act. See id. § 101(h)(2), 119 Stat. at 305. As Xiao applied for asylum prior to that

12
where findings and conclusions are based on inferences or presumptions that are not

reasonably grounded in the record.” Balasubramanrim v. INS, 143 F.3d 157, 162 (3d

Cir. 1998) (internal quotation marks and citations omitted). “The internal consistency of

a witness’s testimony, its consistency with other testimony, its inherent (im)probability,

as well as the witness's tone and demeanor[,] are important factors in determining

credibility.” Chen v. Gonzales, 434 F.3d 212, 220 (3d Cir. 2005). “An IJ must support

his factual determinations with ‘specific, cogent’ reasons such that his conclusions ‘flow

in a reasoned way from the evidence of record and are [not] arbitrary and conjectural in

nature.’” Caushi v. Att’y Gen., 436 F.3d 220, 226 (3d Cir. 2006) (quoting Dia v.

Ashcroft, 353 F.3d 228, 250 (3d Cir.2003) (en banc)). The failure to do so “does not

pass muster under the substantial evidence rubric.” Dia, 353 F.3d at 254.

3. The Credibility Determination

The IJ based his adverse credibility determination on four findings. Not one of

them is supported by “cogent” reasoning grounded in the record.

(a) implausibility of testimony that home church could go undetected

As noted, the IJ found Xiao’s testimony not credible in part because it was

impossible for him to believe that “a regime that is that brutally efficient would also be

so utterly incompetent as not to close down a church that they [sic] already [knew]

existed and in fact never even revisit that same location.” This is pure speculation

date, this provision does not apply to our review of her claim.

13
unsupported by any evidence in the record. The record does not contain any information

about the efficiency of the Chinese government or its ability to identify religious

meetings of any size.

The Ninth Circuit Court of Appeals rejected an equally speculative – and,

ironically, directly opposite – conclusion from an IJ in Quan v. Gonzales, 428 F.3d 883,

887 (9th Cir. 2005). There,

the IJ found that Quan’s testimony that her home was raided and she was
arrested after participating in so few [Christian] meetings was not
plausible. The IJ explained that [‘][i]n a country the size of China, for a
person to be so unlucky to have just joined a small group of seven or eight
according to her testimony, conduct four secret meetings in homes not
always her home, and then be arrested is highly improbable and at a
minimum implausible.[’]

428 F.3d at 887. “[T]his conclusion was not supported by the record,” as “[a]n inference

of a country’s police capabilities cannot be drawn merely from its geographical size.” Id.

In our case, the record before the IJ included the United States State Department’s

2003 International Religious Freedom Report, which states that “an estimated 2.4 percent

[of China’s population] worship in Protestant house churches that are independent of

government control.” The report also notes that “prayer meetings and Bible study groups

held in house churches are legal and generally are not subject to registration requirements

so long as they remain small and unobtrusive.” However, “[d]ue to a lack of transparent

guidelines, local officials have great discretion in determining whether ‘house churches’

violate regulations,” and “[u]nregistered religious groups continued to experience

14
varying degrees of official interference and harassment.” The IJ did not mention the

report in articulating his incredulity at Xiao’s contention that church members avoided

detection by changing meeting times and locations; he simply found this was an

“implausible” explanation.

“Official as well as unofficial country reports are probative evidence and can, by

themselves, provide sufficient proof to sustain an alien’s burden under the INA.”

Zubeda, 333 F.3d at 477; see also Dia, 353 F.3d at 246 (finding country report

“important because the picture it paints provides a background against which to assess

[the petitioner’s] credibility”). “Reviewing courts have found it particularly troubling

when immigration courts overlook country condition reports submitted by petitioners.”

Chen v. Gonzales, 417 F.3d 268, 272, 273 (2d Cir. 2005) (finding “significant error in

the BIA’s failure to consider the country condition report submitted by [the petitioner],

which corroborates his testimony”). Likewise, “[t]he BIA has repeatedly emphasized the

importance of providing background evidence concerning general country conditions,

especially where it tends to confirm the specific details of the applicant’s personal

experience.” Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000).

The IJ based his conclusions regarding the plausibility of Xiao’s testimony on his

own assumptions about the enforcement priorities and capabilities of the Chinese

authorities. Not only did the IJ fail to tie his conclusions to any evidence in the record,

they are at odds with information in the country report here. “Where an IJ bases an

15
adverse credibility determination in part on ‘implausibility’ . . . [,] such a conclusion will

be properly grounded in the record only if it is made against the background of the

general country conditions.” Dia, 353 F.3d at 249. Even under the substantial evidence

standard of review, we need not extend deference where conclusions “are based on

inferences or presumptions that are not reasonably grounded in the record.”

Balasubramanrim, 143 F.3d at 162 (internal quotation marks and citation omitted). In

this context, the IJ’s conclusion as to the implausibility of the non-detection of the home

church falters.

(b) lack of eye-contact

The IJ’s second ground for his adverse credibility determination was the

“demeanor of the respondent,” as he found her failure to make eye contact was a window

to her untruthfulness. The IJ acknowledged “there are arguments that this Court has seen

made that there are cultural things having to deal with eye contact and authority and so

forth,” yet he apparently rejected these arguments in favor of his own experience

presiding over immigration cases. According to the IJ, “the Chinese people respond in

this courtroom as all other nationalities . . . [.] [T]here’s nothing else different about

Chinese asylum applicants[,] whether they have to do with abortion, whether they have to

do with religion or any other topic.”

Demeanor is a legitimate and important factor in determining credibility. Chen,

434 F.3d at 220. Moreover, we extend an “even greater degree of deference” to an IJ’s

16
observations of a petitioner’s demeanor. Dia, 353 F.3d at 252 n.23. But the IJ’s

conclusion regarding demeanor in this case is not supported by “specific, cogent

reason[s], but, instead, is based on speculation, conjecture, or an otherwise unsupported

personal opinion.” Id. at 250. It is not that an IJ could not properly, in some cases, draw

an inference of incredibility from evasive eye contact; it is that the IJ here explicitly

based his conclusion on his personal, unsubstantiated opinion that there are no cultural

differences that would affect eye contact behavior. That he was aware of arguments to

the contrary, yet preferred to adhere to his own theories, further reflects the speculative

nature of his conclusions.

Indeed, “[e]ye contact patterns are . . . different in some Asian cultures, notably

Japanese and Chinese, where avoiding eye contact is considered a sign of respect.”9 Paul

R. Tremblay, Interviewing and Counseling Across Cultures: Heuristics and Biases, 9

CLINICAL L. REV. 373, 394 (2002). Unfortunately,

9
Even assuming arguendo the presumed relationship between
such demeanor and credibility in the usual context, . . . the
relationship is often non-existent when the fact finder and
witness are from different cultures. Thus, while the failure to
look someone in the eye while speaking is usually interpreted
as an indication of deception by people in Western cultures,
avoiding eye contact has a very different meaning in some
other cultures. . . . For example, in certain Asian cultures,
avoiding eye contact is a sign of respect . . . .

Dia, 353 F.3d at 276 (McKee, J., concurring in part and dissenting in part).

17
 [m]ost immigration judges have been raised in a culture where one is
constantly exposed – either personally or via the media – to propositions
such as, ‘look me in the eye and say that,’ reflecting the belief that
eye-contact inhibits lying. However, the social significance of eye-contact,
as well as expressions of emotions, vary from culture to culture, and as a
result of their own cultural indoctrination, immigration judges may easily
misconstrue asylum applicants’ non-verbal behavior.

Joanna Ruppel, The Need for a Benefit of the Doubt Standard in Credibility Evaluation

of Asylum Applicants, 23 COLUM. HUM. RTS. L. REV. 1, 12-13 (1992) (footnote omitted).

As these documents regarding Chinese habits of eye contact were not in the

record, we do not cite them to “establish one way or the other whether [Chinese people

have the same eye contact habits as all other people]. Rather, this information merely

underscores our position that any finding on the question of the [eye contact] could only

be based upon conjecture and speculation, impermissible bases under our controlling

law.” Quan, 428 F.3d at 888 n.5 (using publicly available information on bank hours in

China to demonstrate that IJ’s conclusion regarding typical hours of Chinese banks was

based on conjecture).

(c) lack of religious faith

The IJ did not credit Xiao’s professed Christian faith on the general (and, here,

“dime-store philosopher”) ground that “[t]here are people who are knowledgeable about

all sorts of things that they don’t personally believe in.” This falls significantly short of a

“specific, cogent” reason for finding Xiao incredible. Even if we take the IJ’s

observation at face value, it provides no reason to distrust Xiao’s claims of religious

18
belief. We note that the IJ permitted questions regarding Xiao’s knowledge of

Christianity and did not himself ask a single question regarding her faith, as separate

from her knowledge about that faith. The Government did not cross-examine Xiao as to

either her religious knowledge or her faith.

The Second Circuit Court of Appeals, in considering the adverse credibility

determination of an IJ who had found a Chinese citizen’s professions of Christian faith to

be incredible, observed that

where, as here, an IJ harbors nagging doubts about an applicant’s
credibility due to the spareness of his testimony, we have encouraged the IJ
(along with the [G]overnment) to probe for incidental details, seeking to
draw out inconsistencies that would support a finding of lack of credibility.
During the asylum hearing in the case before us, the IJ asked no questions
of Petitioner about his religious beliefs, and the [G]overnment decided not
to conduct a cross-examination. Nothing in the record suggests that
Petitioner needed to present further evidence of his religious convictions,
either to establish his eligibility for asylum, or to render his testimony more
credible.

Yang v. BIA, 440 F.3d 72, 74 (2d Cir. 2006) (internal quotation marks, citation, and

modification omitted); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 151 (2d Cir.

2003) (“a legal standard that empowers an IJ or the BIA to rule against a petitioner who

fails to anticipate the particular set of details that the fact-finder desires (but does not

request, through questions directed to the applicant) is no standard at all.”).

Because the IJ did not seek testimony that would reveal Xiao’s faith or the lack

thereof, cite any example of the type of evidence he believed would support a finding on

19
this issue, or find fault with the religious testimony she did give, we can only conclude

that his determination was not supported by substantial evidence.

(d) absence of husband at hearing

The fourth and final reason for the IJ’s adverse credibility determination was the

failure of Xiao’s husband, Chen, to attend the hearing, a factor described by the IJ as “a

critical, not to be underestimated problem with this case.” The Court concluded that

Xiao and Chen were attempting to avoid being separated and having their testimony

compared.

This conclusion is underwhelming at best. First, the relationship between Chen’s

decision not to attend the hearing and Xiao’s credibility is no more than indirect: the

connection to Xiao’s credibility is more attenuated than would be, for example,

inconsistencies within her testimony. The record contains a reasonable explanation for

the Chen’s failure to attend: he was afraid he would be arrested due to his own unstable

immigrant status. It is true that the IJ advised the parties that Chen was to attend the

hearing, and we can assume the IJ was correct that there was “no serious possibility” that

the husband would be arrested. Yet, it is still plausible that Chen (incorrectly) believed

that he could be arrested at the hearing, and his failure to attend can be explained by his

own ignorance or concern, rather than by a desire to avoid revealing falsehoods in Xiao’s

testimony.

Second, the IJ ignored Chen’s statement in the record that does, in fact, support

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Xiao’s testimony. (Neither does the IJ mention the statements in the record from Xiao’s

mother-in-law, her sister, her church friend, and her uncle – all of which support her

testimony.)

Third, our conclusion above that the IJ inappropriately speculated as to the

enforcement capabilities of the Chinese authorities undermines the IJ’s stated reason for

needing testimony from Chen. The IJ stated:

The Court has already raised the problem with the respondent’s religious
persecution claim, specifically there is the problem of having this church exist for
a period of several years when the church had already been raided by the police.
Had the respondent’s husband been her[e], he could have testified and perhaps
swayed the Court of its concerns with regard to this question.

The IJ did not mention any other specific reasons for needing testimony from Chen, or

areas of Xiao’s testimony that required corroboration. Because we conclude that Xiao’s

testimony about her church attendance is, in fact, supported by the record, the need for

corroborating testimony is accordingly less acute.

Fourth and finally, it is not clear why the absence of Xiao’s husband’s specific

corroborating information serves to undercut the credibility of her testimony rather than

merely affecting the sufficiency of the evidence she has presented. As our Court has

observed,

[i]t might seem intuitive that a lack of corroboration could cast doubt on the
veracity of a witness’s testimony, even a witness whose story was delivered with
an appealing demeanor, internally consistent, and not inherently improbable. . . .
However, it is clear that the BIA’s own rule requires a credibility determination to
be independent of an analysis of the sufficiency of an applicant's evidence.

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Chen, 434 F.3d at 221 (observing that “[t]he IJ seems to have impermissibly blurred the

line between the credibility of a claimant and the adequacy of proof to support the claim

of asylum.”). Here the IJ seems to have made the same mistake.

We need not determine, however, whether the IJ’s conclusions regarding Chen’s

failure to appear are supported by substantial evidence, as the other three bases for the

adverse credibility determination fail, and Chen’s absence alone is insufficient to support

the finding of incredibility. We therefore hold that the IJ’s adverse credibility

determination is not supported by substantial evidence.

4. The Persecution Determination

As stated above, the IJ found Xiao had demonstrated neither past persecution nor

a well-founded fear of future persecution because there is no evidence of a pattern or

practice of persecution of Christians by the Chinese government, Xiao’s single arrest

cannot pass as persecution nor can the mandatory gynecological exams, and there is no

evidence to support Xiao’s testimony that she will suffer negative repercussions upon her

return to China as a result of having left the country “illegally.”10

But even if there is substantial evidence to support the IJ’s conclusions that Xiao

10
Regarding Xiao’s claim that persecution was more likely in light of her illegal
exit from China, the IJ questioned the “illegal” nature of her exit and noted that this is
not a protected ground relevant to asylum. Even if we assume that Xiao’s exit from
China was “illegal,” we need not decide here whether it alone is sufficient to support an
asylum claim. As a remand is warranted on other grounds, we do not consider Xiao’s
manner of exit.

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did not (a) suffer past persecution on account of religion, (b) have a well-founded fear of

future religious persecution, or (c) suffer past persecution on account of her resistance to

birth control policies, we conclude that a remand is required on the question of whether

Xiao has a well-founded fear of future persecution because of her resistance to China’s

family planning policies. The IJ failed to discuss this issue; however, it was considered

and rejected by the BIA in connection with Xiao’s motion to remand. We accordingly

analyze the question of Xiao’s fear of future persecution on political grounds in the

context of the BIA’s denial of the motion to remand.

“We treat the motion styled as a ‘motion to remand’ as a motion to reopen since it

requires reopening the proceedings.” Shardar, 382 F.3d at 325 n.4. “We review the

BIA’s denial of the motion to reopen [or remand] for abuse of discretion.” Id. at 324

(internal quotation marks and citation omitted). Under this standard, “the [BIA’s]

decision must be reversed if it is . . . contrary to law,” and “we must also ask whether the

[BIA] followed proper procedures and considered and appraised the material evidence

before it.” Sevoian v. Ashcroft, 290 F.3d 166, 174, 177 (3d Cir. 2002) (internal quotation

marks, citations and modifications omitted).

“A motion to reopen must establish prima facie eligibility for asylum.” Guo v.

Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004) (citing Sevoian, 290 F.3d at 173). This

standard requires a petitioner to “produce objective evidence showing a reasonable

likelihood that he can establish that he is entitled to relief. Id. (internal quotation marks,

23
modifications, and citations omitted). At the motion to reopen stage, “[a] ‘reasonable

likelihood’ means merely showing a realistic chance that the petitioner can at a later time

establish that asylum should be granted.” Id. at 564 (emphasis added).11 This does not

mean that an applicant gets a second chance to establish what was unsuccessful initially,

but rather that s/he will have an opportunity to show additional evidence that was

unavailable at the first hearing.

Here, the BIA denied Xiao’s motion to remand because it could simply

not conclude based on the evidence of record that the respondent has a well-
founded fear of persecution because she may now be considered in
violation of the population control law. It is unclear whether the United
States citizen children will actually return to China with the respondent.
There is also insufficient documentary evidence of record to convince the
Board that there is any likelihood that the respondent will be sterilized.

This language implies that the BIA was requiring that Xiao establish a well-

founded fear, rather than a “realistic chance” that she could establish such a fear at a later

time. See id. at 564. “The distinction may at first appear to be subtle shading, but

without it ‘prima facie’ (meaning at first sight) would lack meaning.” Id.

Furthermore, the BIA’s comment regarding the possibility that Xiao’s children

might not return to China with her was an inappropriate and insufficient ground for

11
Guo’s use of “realistic chance” was not intended to cut back on Sevoian’s
“reasonable likelihood” test, but simply to explain that the latter does not require one
seeking reopening to show at the time of the motion to reopen that “the evidence for
asylum outweighs the evidence against.” Id.; see also Poradisova v. Gonzales, 420 F.3d
70, 78 (2d Cir. 2005).]

24
denial. First, “the break-up of a family. . . [is] a result that is at odds . . . . with

significant parts of our overall immigration policy.” Ma v. Ashcroft, 361 F.3d 553, 561

(9th Cir. 2004). Second, the BIA’s suggestion that Xiao might abandon her children

implies that any asylum applicant who has been persecuted, but can abandon the opinion

or association giving rise to the persecution, should do so – an outcome that is also at

odds with the objectives of United States asylum law. Finally, there is no support in the

record for the contention that Xiao might abandon her children to return to China. It is

not clear how much of the BIA’s holding rested on this wayward comment and thus

unclear how much the BIA’s overall conclusions are undermined by our rejection of this

rationale.

Because the BIA failed to apply the proper evidentiary standard, and denied the

motion at least in part on an impermissible conclusion about Xiao’s ability to return to

China without her children, we remand this case to allow it to determine whether Xiao

has established a prima facie case of a well-founded fear of future persecution on account

of her political opinion, namely her resistance to China’s population control policies.

The BIA’s analysis should be conducted in light of our caselaw and any additional

evidence Xiao can produce on remand, and without reference to the prior adverse

credibility finding. We also encourage it to consider the 2005 Country Report on remand.

Caushi, 436 F.3d at 231 n.6 (noting that our Court has described country reports as “the

most appropriate and perhaps best resource on country conditions”) (internal quotation

25
marks and citation omitted). If the BIA, applying the proper evidentiary standard,

determines that Xiao states a prima facie case, it may then remand the matter to an IJ for a

hearing.

B. CAT relief

The CAT has been implemented by regulations codified at 8 C.F.R. §§ 208.16 and

208.18, which require withholding of removal for an alien who can show that it is more

likely than not that she, upon removal to a particular country, will be tortured by, or with

the acquiescence of, its government. Abdulrahman v. Ashcroft, 330 F.3d 587, 591 n.2

(3d Cir. 2003). “The standard for relief has no subjective component, but instead

requires the alien to establish . . . by objective evidence that [s]he is entitled to relief.”

Sevoian, 290 F.3d at 175 (internal quotation marks and citations omitted).

A claim for relief under the CAT is “analytically separate” from both asylum and

withholding of removal under the INA. Zubeda, 333 F.3d at 476. As such, an adverse

credibility finding for purposes of denying asylum and withholding of removal claims

does not preclude a petitioner from establishing a claim for relief under the CAT. Id.

Similarly, “a decision-maker must review claims for relief under the Convention and

consider relevant country conditions even where adverse credibility determinations have

precluded relief under the INA.” Tarrawally, 338 F.3d at 188.

Here the IJ issued an order that, among other things, denied Xiao’s application for

protection under the CAT. Yet he did not mention the Convention or torture at any point

26
in his oral opinion. Likewise, the BIA did not mention the CAT claim in its affirmance of

the IJ’s opinion. It is true that “[t]he Board is not required to write an exegesis on every

contention, but only to show that it has reviewed the record and grasped the movant’s

claims.” Sevoian, 290 F.3d at 178 (internal quotation marks and citations omitted). As

stated above, however, IJs and the BIA are required to review claims for relief under the

CAT “even where adverse credibility determinations have precluded relief under the

INA.” Tarrawally, 338 F.3d at 188. It was therefore error for the IJ to dismiss Xiao’s

CAT claim on the basis of the adverse credibility finding made in relation to her

application for asylum.

Yet notwithstanding such an error, remand is unnecessary if the record does not

support a petitioner’s claim for relief under the CAT. Mahmood, 427 F.3d at 253;

Zubeda, 333 F.3d at 465 n.1. A CAT claim requires a both a likelihood and severity of

harm that is simply not implicated by the record before us. We accordingly deny Xiao’s

claim for relief under the CAT.

* * * * *

We deny Xiao’s petition as to the CAT claim, but remand her claims for asylum

and withholding of removal.

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