11-3050-ag
Li v. Holder
BIA
Nelson, IJ
A089 908 408
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of May, two thousand twelve.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
XIULIAN LI,
Petitioner,
v. 11-3050-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Nathan Weill, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General;
William C. Peachey, Assistant
Director; Mona Maria Yousif, Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
GRANTED, and the matter is REMANDED for further proceedings.
Petitioner Xiulian Li, a native and citizen of the
People’s Republic of China, seeks review of a June 30, 2011,
decision of the BIA affirming the May 21, 2009, decision of
Immigration Judge (“IJ”) Barbara A. Nelson denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Xiulian
Li, No. A089 908 408 (B.I.A. June 30, 2011), aff’g No. A089
908 408 (Immig. Ct. N.Y. City May 21, 2009). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v.
DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
162, 165-66 (2d Cir. 2008).
For asylum applications, like Li’s, governed by the REAL
ID Act, the agency may, considering the totality of the
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circumstances, base a credibility finding on an asylum
applicant’s demeanor, the plausibility of her account, and
inconsistencies in her or her witness’s statements, without
regard to whether they go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d
at 163-64.
Li sought asylum on the ground that she had been
subjected to two forced abortions. This claim, if true, would
have entitled her to asylum. See 8 U.S.C. § 1101(a)(42)(B).
The IJ made an adverse credibility finding, which was upheld
by the BIA, on two grounds. First, the IJ concluded that Li’s
testimony evidenced lack of credibility. Second, the IJ was
concerned that Li had omitted from her initial asylum
application the fact that she had been discharged from
government employment for violating the family planning
policy. We consider each ground separately.
1. Li’s testimony.
The IJ’s adverse credibility finding was based
significantly on two instances in which the IJ thought that
Li’s responses went beyond the scope of the questions and
admonished her for doing so. The first instance occurred when
Li was asked the somewhat open-ended question concerning why,
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at age 22, she was considered too young to lawfully bear a
child. The following colloquy ensured:
Q. [by Li’s counsel] Why were you too young?
A. According to the local government, there was a
regulation that you must be 24 and half years old
and also a policy of late birth. And as long as you
meet that standard, then you have to get a birth
permit in order to have a child. At that time I
just did not know anything. When I went to register
the marriage, none of the departments over there
told me anything.
JUDGE TO MS. LI
Q. Ma'am, I think you're going way beyond the
question that was asked. Please answer only what
your attorney asks you.
A. Yes.
In fact, Li’s response endeavored to answer the question
and added only why she was unable to provide more information
to respond to the “why” question. No admonition was called
for.
The second instance occurred when Li was questioned about
her second forced abortion. The following colloquy ensured:
Q. [by counsel] What did they do?
A. They forced me up -- they forced me into an
operating room. I kept screaming very loudly and I
said, please let me go, but no matter how I
struggled physically or screaming, it, it had no
use. Two nurses held me up to the operating table
by my shoulders so I could not move. And then the
doctor forcibly performed a D&C procedure on me. No
anesthetic was injected. I felt like -- that my --
someone had pulled out my intestine.
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JUDGE TO MS. LI
Q. All right, ma'am, again you're going beyond the
question that was asked. This isn't supposed to
be an open-ended narrative. Your attorney has
done lots of this kind of case and he knows
what questions to ask to get the information
that he needs from you. So, if you would be
patient and let him ask the question instead of
just trying to tell your story in one felled
[sic] swoop.
Li’s answer was entirely appropriate to the open-ended
question, “What did they do?” The IJ’s admonition was
unwarranted.
Had these admonitions not affected the IJ’s assessment of
Li’s credibility, we would not be overly concerned. However,
our concern increases when we see the following passage in the
IJ’s oral decision:
[T]he Court finds that there are some troubling
aspects regarding the respondent's demeanor. During
her testimony, partic ularly during direct
examination, the respondent would be asked a simple
question and would give an extremely long narrative.
In fact, it appeared to the Court that the respondent
was giving a speech. The speeches would go on way
beyond what the question asked for.
The two colloquies we have recounted are the only
instances in Li’s examination where the IJ indicated that a
response exceeded the scope of the question.
Our concern is further heightened by the BIA’s reasons for
affirming the IJ’s adverse credibility finding: “In making an
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adverse credibility determination, the Immigration Judge
found, inter alia, that the respondent appeared to have
rehearsed her testimony and was hesitant and unresponsive in
certain points in her testimony. The Immigration Judge's
finding is supported by the record (see, e.g., Tr. at 11-16,
18, 26, 29-31, 33, 35).”
We have examined each cited transcript reference and note
the following. Within the first reference (pages 11-16) there
is nothing on pages 11, 12, or 15 that supports the BIA’s
characterization. The only passage to which the BIA could be
referring on page 13 is Li’s response to the question as to
why she was considered too young to lawfully bear a child, a
response that, as we have pointed out, was not inappropriate.
The only passage to which the BIA could be referring on page
14 is Li’s response to how the second abortion was performed,
which was entirely appropriate. The only passage to which the
Board could have been referring on page 16 is the following
colloquy:
Q. Do you know why they [the Chinese authorities]
changed the form of contraception?
A. I don't understand the question.
Q. Well, you had been taken birth control pills
according to your application. Then you stopped
taking them, got pregnant and had your son. After
that, you were -- after that, you had an IUD. Do you
know why they changed the form of contraception that
you were using?
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A. At the time when I got married, I did not know
about the regulations that would prevent me to have
children and did not take any birth control measures,
so other --
Q. I'm not, I'm not talking about before you were on
contraception. My question is about why did they
change the form of contraception?
A. After I gave birth to this child, child, it was
the regulation that half of year after their birth
must wear an IUD.
Although Li initially said she did not understand the
question, that was not an inappropriate response to a question
that she was not competent to answer. Nevertheless, she
responded within the limits of her knowledge.
On pages 18 and 26, there is nothing that supports the
BIA’s characterization. With respect to pages 29-31, the only
passage that might arguably have concerned the IJ and
therefore the BIA was one response on page 31 in which Li said
she did not understand the question. On page 33, the
following colloquy apparently troubled the IJ:
Q. [by DHS counsel] Do you have any proof that you
attend the church here in the United States?
A. I go to church every Sunday, in the morning.
Q. No, but do --
JUDGE TO MS. LI
Q. Ma'am, that's not the question. The question is do
you have any evidence to show that you, in fact, do
that?
A. I don't have it because I haven't been baptized.
Although a simple “no” would have been the better response,
Li’s two answers would seem to merit little, if any,
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criticism. The last page of transcript cited by the BIA, page
35, contains the following colloquy:
JUDGE TO MS. LI
Q. When did you first attend church in the U.S.?
A. I even went last Sunday. When I came this morning
the person was in charge in our church prayed for me.
Q. All right, ma'am, perhaps you didn't understand
the question. When was the first time you attended
a church in the United States?
A. First time? December -- I went in December 2007.
Q. How long has your mother been a practicing
Christian?
A. My mother?
Q. Yes, your mother.
A. I -- I'm not sure when she joined the religion
because my work was very, very busy and I accompanied
her because she was in her 80s.
Q. Ma'am, just answer the question I asked. As far as
you know, when you were a child, did your mother
practice Christianity?
A. She hasn't practiced Christianity for not too
long. She hasn't practiced Christianity for too long.
The IJ’s first question was not answered until the second
response, but the IJ’s remaining questions were answered
directly, even though the IJ changed the question after
admonishing Li to “just answer the question I asked.”
We understand the difficult task that IJs have in
determining the credibility of asylum applicants, at least
some of whom are undoubtedly giving false testimony supplied
to them by the smugglers who arranged for their unlawful
entry. We also recognize that the IJ has the opportunity to
observe the applicant and to assess her demeanor. See Lin v.
Gonzales, 446 F.3d 395 (2d Cir. 2006). At the same time, we
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have an obligation to make sure that the questioning of an
applicant is fair and that unwarranted criticisms of
legitimate responses do not create an unacceptable risk of a
flawed assessment of credibility. See Huang v. Gonzales, 453
F.3d 142, 148-50 (2d Cir. 2006). From the colloquies we have
recounted, we conclude that that risk is present in this case.
One further excerpt from the testimony also suggests that
the IJ might have permitted inappropriate questioning to color
her credibility assessment. The following colloquy concerned
Li’s account of her second forced abortion:
Q. [By Li’s counsel] Can you describe it, please?
A. They did not inject me any anesthetic, the same as
the first time. It felt like someone pulled out my
intestine. Over there every, every cut I was made and
I felt like -- so painful that I felt like I was
dying.
JUDGE TO MS. LI
Q. I'm sorry, what cuts were made?
A. It, it felt like -- my feeling was like they were
making cuts, that's how I felt.
Q. Was -- did this abortion feel different than the
first one?
A. It was also D&C procedure, the same feeling as the
first time.
Q. Did they make any cuts or did it just feel like
they were making cuts?
A. The doctor -- the nurses were there and when they
were doing it, it felt like scraping and cutting.
Why a woman who had undergone a forced abortion without
anesthetic would be pressed to answer the question “Did they
make any cuts or did it just feel like they were making cuts?”
is not readily apparent.
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2. Omission of Li’s discharge from employment.
As the IJ and the BIA noted, Li’s initial asylum
application recited her two forced abortions but did not
mention that she was discharged from government employment for
violating the family planning policy. Li testified that she
understood that the forced abortions were evidence of
persecution, but that she did not think that being fired from
employment added anything to her claim. She also explained
that after her lawyer told her that the firing was relevant to
her claim, she amended her application to include the
employment discharge.
Although an omission can have a bearing on an applicant’s
credibility, see 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that
agency may base credibility determination on inconsistencies
between applicants statements, and “the consistency of such
statements with other evidence of record”), the IJ initially
commented on Li’s omission in a sympathetic manner:
The respondent mentioned nothing about this in
her written application for asylum, only that she was
dismissed from her employer. If this were the only
omission or inconsistency, the Court might find that
it had been inadvertent, and the respondent had not
offered it because she might not have considered it
the worst form of persecution. One could easily
understand that a respondent would find an abortion
to be a far more serious form of persecution than
loss of employment.
However, a loss of employment is hardly
something to be forgotten or easily dismissed from
memory, but there are other reasons that the Court
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has trouble with this serious omission. The
respondent's husband sent a letter to corroborate her
claim. He mentions absolutely nothing about her
losing her position in August of 2006, and, of
course, mentions nothing about her attempts to [be]
reinstated. Her neighbor also does not mention it,
which is troubling because the neighbor does seem to
know a great deal about the respondent, including her
pregnancies, her abortions, et cetera. Even more
disturbing is the fact that the respondent's co-
worker did not mention in his or her letter that she
was dismissed from their place of employment.
Given these factors, the Court finds that the
omission is more troubling on several levels,
including the fact that it appears to the Court that
perhaps the content of the letters was directed by
the respondent when she initially filed her
application for asylum. The Court also notes that in
another continuation sheet, which contains simply the
dates (places of employment for the respondent could
not be fit on the 1-589), it indicates that her
employment with that particular place ended in May of
2006. But when one considers all these factors
together, this is a serious omission, and the Court
finds that it is sufficient to find that her
testimony is not credible.
We are unable to follow the IJ’s logic. If it was
understandable that Li would regard the discharge as
insufficient to augment her claim based on two forced
abortions, it is difficult to understand why the same omission
becomes more significant when it is made by her husband or
others supporting her application.
In sum, we are left with sufficient doubt about the
fairness of the adverse credibility finding to warrant a
remand so that Li’s testimony may be assessed without the
troubling matters we have identified. Although we have no
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doubt that the IJ could conscientiously make a new assessment
based on the existing record, we think the appearance of
justice is better served by requiring a different IJ to
conduct a renewed hearing on remand. See Huang, 453 F.3d at
150.
For the foregoing reasons, the petition for review is
GRANTED, and the matter is REMANDED for further proceedings
consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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