United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS June 7, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
04-60553
ZHONGNE LI,
Petitioner,
v.
ALBERTO R GONZALES,
U.S. Attorney General,
Respondent.
On Petition for Review from an Order of
the Board of Immigration Appeals
A96 289 537
Before GARWOOD, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
In this petition for review from an order of the Board of
Immigration Appeals (“BIA”), the sole challenge is to the
immigration judge’s (“IJ”) adverse credibility determination.
After a thorough review of the record, we conclude that the IJ’s
* Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
1
findings with respect to credibility are contradictory and
confusing. We therefore grant the petition and remand for
clarification of the findings or for rehearing.
I. BACKGROUND AND PROCEDURAL HISTORY
Zhongne Li, a citizen of China, was served with a Notice to
Appear (“NTA”) by the Immigration and Nationalization Service on
March 13, 2003.1 The NTA alleged that Li had illegally entered the
United States on or about March 3, 2002. At a hearing before an IJ
on March 31, 2003, Li admitted the allegations of the NTA and
conceded that he was subject to removal. Li indicated that he
would be seeking asylum, withholding of removal, protection under
the Convention Against Torture (“CAT”) Act,2 and, in the
alternative, voluntary departure.
A. Li’s Testimony and Evidence at the Hearing
The IJ conducted a hearing, and Li was the only witness.
Through a translator, Li testified on direct examination that he is
a forty-five year old man from China, who is married with one child
in college. Li’s wife, child, brother, and sister still live in
China. Li and his business partner owned a company in China that
manufactured products for gold miners. Li owned the business for
1
Although petitioner’s identity is in dispute, the parties
refer to him as “Li” in their briefs.
2
Li has not challenged on appeal the IJ’s denial of his claim
under the CAT. Therefore, any relief under that provision is
waived. Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir.
1986).
2
two years and had fifty-six employees. His company was seized by
the Chinese government in February 2002 and no longer exists.
Li was arrested at a student demonstration in 1989 and spent
five days in jail. In 1996, he became a member of the Shenhe
District Underground Family Church (“Church”), a Christian group
having about 300 members. The members were divided into small
groups, and Li’s group met at his mining company.
In October 2000, police officers came to Li’s business and
showed Li a picture of one of Li’s fellow Church members. The
officers told Li that the man in the picture had been arrested and,
while in custody, had told officers that Li was a Christian. Li
denied that he was a Christian and told the police that the man in
the picture owed Li’s company money and was trying to avoid the
debt. On January 19, 2002, the officers returned to Li’s business
and searched the office and the factory. The officers found
religious materials and questioned Li and his partner about them.
Li and his business partner were arrested and taken to a detention
center. He never saw his partner again.
Li remained in detention for seventeen days. During the
detention, the police required Li to work and study. He was denied
food and water and was beaten. If he moved while studying, he
would be ordered to kneel for ten hours. The police interrogated
him regarding whether he was a Christian and after being beaten for
days, he confessed to disturbing the social order and being harmful
to the nations’s security. During the interrogation, he was
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scalded with hot water on his left hand and shoulder. Because his
burns became infected, he was released on bond on February 4, 2002.
As he was leaving, a police officer informed Li that he would have
to return and “be sentenced to three to five years.” After being
released, he had to report to the police station on a weekly basis.
Li testified that he was treated for the burns three times at
a hospital. He introduced medical records showing that he had
received the treatment. Li also introduced photographs of his
scars caused by the scalding water and beatings inflicted during
his detainment.
According to Li, he applied for a passport in October 2001
after the police visited his business and questioned him about his
religious involvement. He obtained a visa on February 19, 2002.
He admitted obtaining the passport and visa in the name of his
deceased relative, Zhongquan Zhang (“Zhang”). Li could not obtain
the passport in his own name because of his arrest record.
Li explained that he obtained Zhang’s identification card
while Zhang was in the hospital following a traffic accident prior
to Zhang’s death. Li used Zhang’s identification card and his own
picture to obtain the passport. He went to the foreign affairs
office and filled out some forms and then obtained help from a
“street committee.”
Li testified that the picture on the identification card was
of Zhang, but that he looked similar to Zhang. The IJ skeptically
commented, “you want me to believe that, sir?” Li repeated that he
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looked similar to his relative and that he also had the help of
someone in the foreign affairs office to obtain the passport.
The IJ asked Li why he needed someone else’s identification
card when he had bribed someone in foreign affairs office to obtain
a passport. Li explained that “agencies” outside the foreign
affairs office told him that they would have someone in foreign
affairs help him. The IJ again accused Li of bribing someone in
foreign affairs, and Li responded that he could not apply for the
passport in his own name.
The IJ asked for Zhang’s identification card, and Li answered
that it had been taken by the police because Zhang’s residency had
been cancelled. The IJ asked whether Li had any evidence that
Zhang had been killed in an automobile accident, and Li responded
that he did not have such evidence because he did not think he
would need it once he acquired the visa and passport.
The IJ indicated that Li should have thought to obtain that
evidence to prove his asylum claim. Li responded that he thought
originally that he would be able to return home to China after one
year but then his wife wrote him and told him that he had been
sentenced to three years in prison.
The IJ remarked that persons who apply for asylum generally do
not expect to return home within one year. Li explained that he
planned to return home to run his business until he learned about
his prison sentence. The IJ was skeptical that Li actually
believed that he could return home to China. Li reiterated that he
5
would have returned if he had not received a prison sentence.
Counsel for the Immigration Service asked Li how he could
prove that he was not the person whose name (Zhang) was on the
passport. Li responded that he had an identification card, but
apparently a card with the wrong name or the wrong translation of
the name had been filed in the record. Li’s counsel had a
different document in his file, but the IJ refused to consider it
because it was not previously submitted to the court. However,
Li’s counsel did produce an identification card that Li testified
had his name on it. Counsel also submitted letters addressed to Li
by his wife and friend. Li’s counsel asked him to identify the
translation of his birth certificate, and Li said that he recalled
the document, although he did not initially recall that he had
submitted that document to the court.
The IJ again questioned Li about how he had obtained a
passport. Li again told the IJ that someone outside of the foreign
affairs office helped him get the passport using the identification
of Zhang and Li’s own picture. The IJ asked if fingerprinting was
required to obtain a passport, and Li answered no. The IJ did not
accept Li’s response, questioning how the Chinese government could
know that it was issuing the passport to the proper person without
fingerprinting. Li repeated that the application was processed
without any fingerprinting. Li admitted that it was common in
China to be able to purchase a false identification document.
The IJ then asked Li why he should believe Li if it was so
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simple to obtain a fraudulent document in China. Li acknowledged
that corruption was common in the Foreign Affairs office in China.
The IJ stated that Li appeared to be making up stories along the
way and had not provided the “missing link” evidence, which was the
identification card of Zhang or proof of his death. The IJ again
attacked Li’s credibility, asking why he should believe that Li was
who he said he was based on evidence “that easily could have been
made up.” Counsel for Li responded that the documents provided
proved that the applicant was Li. The IJ responded that Li had
testified that you could buy any identification documents you want
in China, and counsel disagreed that Li had agreed with the IJ’s
comments concerning bribery. The IJ stated that he had perceived
Li’s testimony differently. When asked if he would like to see
Li’s identification card, the IJ refused to look at it because it
was not in the record.
Li testified that if he returned to China, he would be
persecuted and sent to prison. He related that he would not be
safe anywhere in the country because there is a resident management
policy that requires reporting to the resident office and local
resident agencies.
Counsel for the Immigration Service asked about a photograph
of Li’s mining company, which reflected that a seal had been placed
on the gate of the business. Li stated that the seal was placed on
the gate in February of 2002 when the government seized his
business. The IJ pointed out that the pictures contained a date
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stamped by the camera of October 1st or January 10, 2001.3 Li’s
counsel replied that many times the dates are not properly set on
cameras.
Li learned that his business had been seized from other
persons and had not been served with any papers. He testified that
it was seized because of the underground church activity. He
learned via telephone calls from his friends that his partner had
been sentenced to two years in prison.
Li provided a Notarial Certificate of Nationality stating that
“Li Zhongen”4 had been born on October 9, 1959 and was a Chinese
national. An English translation of the certificate was also
submitted into evidence.
B. IJ’s Ruling
After the hearing, the IJ denied Li’s applications but granted
his request for voluntary departure. The IJ stated that he had
observed Li’s demeanor during the proceedings and had determined
that Li was not a credible witness. The IJ observed that Li had
answered his counsel’s questions in a forthright manner, but that
when he was questioned by the court or the Immigration Service
counsel, his “tone of voice changed” and his “hands were holding
3
The date stamp on the bottom of the picture is not clearly
discernable in the record on appeal.
4
According to counsel at the hearing, the actual spelling of
Li’s name is “Zhongen.” However, in the immigration record during
the administrative proceedings, it was incorrectly spelled
“Zhongne” apparently due to his counsel’s error.
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each other quite tight during that time.” The IJ also noted that
Li’s hands were “trembling” at times. The IJ found that Li’s
responses were “not meaningful or [were] unresponsive to the
questions being asked.” The IJ stated that the “answers provide
the Court an impression that he was making up explanations along
the way, trying to explain away the impossibility or
unbelievability that he presented.”
The IJ determined that Li gave inconsistent statements about
the manner in which he obtained his passport. The IJ also stated
that he did not believe that fingerprinting was not required to
obtain a passport. The IJ determined that the date on the
photograph of the seized business indicated that it was seized in
2001 as opposed to 2002, as Li claimed. The IJ would not consider
counsel’s suggestion that the camera’s date may not have been
properly set. The IJ determined that Li had not provided any other
evidence that he owned a business. The IJ also was concerned that
Li did not recall submitting a birth certificate to the court.
The IJ concluded that he could not determine whether the
applicant was Li or the person whose name was on the passport. The
IJ also relied on Li’s testimony that it is not difficult to obtain
false identification documents in China. The IJ concluded that Li
had not carried his burden of showing that he was the person he
claimed to be. The IJ found that fact, coupled with Li’s demeanor
and inconsistent statements, rendered him ineligible for asylum or
withholding of removal and denied his applications.
9
However, the IJ went on to state that if the applicant was Li
Zhongne, as he claimed to be, the IJ would be required to find that
Li suffered past persecution based on his religious activities.
The IJ found that Li had joined an underground church in China in
1996 and that twelve members of the group had gathered at Li’s
business to worship. The IJ found that, as the result of the
arrest of one of its members, Li’s name was provided to the
government as a church member, and Li was arrested and his business
was seized. The IJ further determined that during his detention,
Li was beaten, given insufficient food, and forced to kneel for
ten-hour periods. The IJ determined that this persecution arose
out of Li’s religious activities. The IJ also found that the
background information from the State Department showed that
conditions in China had not changed and that there was a
nonrebuttable presumption of a well-founded fear of future
persecution.
Although he found that Li failed to establish his identity
and, thus, a believable account of his alleged persecution, the IJ
refused to find that Li testified falsely and granted his request
for voluntary departure.
Li timely appealed the IJ’s decision to the BIA. The BIA
adopted the IJ’s credibility determination for the reasons provided
by the IJ and affirmed the IJ’s decision without opinion. The IJ’s
decision thus became the final agency determination. See 8 C.F.R.
§ 1003.1(e)(4). Li now petitions this Court for judicial review of
10
the BIA’s affirmance of the IJ’s decision.
II. ANALYSIS
Generally, we review only the decisions of the BIA. Efe v.
Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). However, when the
BIA, as in the instant case, adopts the findings of the IJ, we
review the IJ’s findings. Id.
We review an IJ’s factual findings for substantial evidence
and will not reverse unless the evidence compels a contrary
finding. See Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). “We
cannot substitute our judgment for that of the BIA or IJ with
respect to the credibility of the witnesses or ultimate factual
findings based on credibility determinations.” Id. (citation
omitted). Nonetheless, we will not uphold “credibility
determinations that are unsupported by the record and are based on
pure speculation or conjecture.” Mwembie v. Gonzales, 443 F.3d
405, 410 (5th Cir. 2006).
Li contends that “‘the substantial evidence’ standard is not
the proper one for this case, as this is not one in which the
Petitioner is simply arguing that the IJ evaluated the facts
improperly.” Instead, he argues that the IJ erred as a matter of
law in making the adverse credibility determination. We need not
reach Li’s argument regarding the appropriate standard of review
because we conclude that the IJ’s findings and conclusions are
confusing and contradictory and therefore remand for clarification
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or for rehearing.
As previously set forth, the IJ concluded that he could not
determine Li’s identity. The IJ also expressly found Li
“statutorily . . . eligible” for voluntary departure. One of the
statutory requirements for voluntary departure is that the “alien
is, and has been, a person of good moral character for at least
five years immediately preceding the alien’s application . . . .”
8 U.S.C. § 1229c. We conclude that it is contradictory for the IJ
to find that he does not know the identity of the alien but
nonetheless finds that such unknown alien is and has been a person
of good moral character. Cf. Kalubi v. Ashcroft, 364 F.3d 1134,
1141-42 (9th Cir. 2004) (explaining that “if an applicant’s
testimony on an issue is accepted for purposes of determining
whether he is statutorily eligible for asylum, the same testimony
must also be accepted for purposes of determining whether he is
entitled to asylum as a discretionary matter”). Clearly, without
knowing the identity of a person, the IJ cannot determine whether
that person is and has been of good moral character for at least
five years.
Additionally, the IJ’s findings are confusing. The IJ
expressly states that he is not finding that Li testified falsely.
Yet, the IJ makes an adverse credibility determination, finding
that Li’s account was not “believable.” Indeed, the IJ accuses Li
of “making up stories along the way [when] I ask you questions.
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You don’t seem to be a credible witness, sir.” At least without
further explanation, these statements cannot be reconciled.
According to the IJ, Li would be entitled to asylum if he in fact
was Li. His testimony about his identity cannot be incredible and
“made up” and at the same time not be false.
In short, because we find the IJ’s findings and conclusions
confusing and contradictory, we remand for clarification or, in the
alternative, a rehearing. Cf. Seymour v. Oceanic Navigating Co.,
Ltd., 453 F.2d 1185 (5th Cir. 1972) (remanding to the district
court for clarification because the court’s findings of fact were
“self-contradictory, confusing, and inconsistent with the court’s
statements at trial”). On remand, the BIA should be mindful of our
very recent precedent instructing that (1) adverse credibility
determinations should be rational and not based upon pure
speculation or conjecture, Mwembie, 443 F.3d at 407, (2)
adjudicators should be sensitive to potential misunderstandings
when an applicant is testifying through a translator, id. at 407
n.3 (citing Iao v. Gonzales, 400 F.3d 530, 533-34 (7th Cir. 2005));
and (3) adjudicators should be reasonable in demanding further
proof or documents to avoid making “‘potentially mistaken,
culturally based assumptions about the existence and availability
of documents.’” Kabamba v. Gonzales, 162 F. App’x 337 (5th Cir.
13
2006) (unpublished)1 (quoting Mulanga v. Ashcroft, 349 F.3d 123,
134 (3d Cir. 2003)).
For the above reasons, the petition for review is GRANTED, and
the matter is REMANDED for further proceedings not inconsistent
with this opinion.
1
Although our unpublished opinion is not binding precedent,
it is persuasive authority. Ramchandani v. Gonzales, 434 F.3d 337,
339 (5th Cir. 2005).
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