F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
March 2, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
YONG TING YAN,
Petitioner,
v. No. 05-9564
ALBERTO R. GONZALES,
Attorney General,
Respondent.
APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
PETITION FOR REVIEW
(No. A96-061-036)
Submitted on the briefs:
Yong Ting Yan, Pro Se, Petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division, Greg D. Mack,
Senior Litigation Counsel, Office of Immigration Litigation, Thomas M. Gannon,
Attorney, Appellate Section, Criminal Division, Department of Justice,
Washington, D.C., for Respondent.
Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.
McCONNELL, Circuit Judge.
Pro se petitioner Yong Ting Yan seeks review of a final order of removal
issued by the Bureau of Immigration Appeals (BIA), which summarily affirmed
a determination by an Immigration Judge (IJ) denying Mr. Yan’s application for
asylum, restriction on removal, 1 and the Convention Against Torture (CAT).
We reverse the decision of the BIA, and remand for further proceedings. 2
Mr. Yan is a citizen and native of China who is subject to removal from
this country but who seeks asylum, claiming that he was persecuted by
government authorities in China for being a Christian. The IJ gave two basic
reasons for disbelieving Mr. Yan’s testimony concerning this persecution. First,
the IJ stated that he had “concerns about [Mr. Yan’s] commitment to Christianity”
sufficient to give him “serious doubts about [Mr. Yan’s] credibility.” Admin. R.
at 41. Second, the IJ stated that Mr. Yan had not shown “that it is likely that he
would be or would have been targeted by the authorities in China on account of
his religious activity.” Id. at 43. As neither of these reasons was supported by
1
Prior to the amendments to the Immigration and Nationality Act made by
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),
“restriction on removal” was known as “withholding of removal.” Wiransane v.
Ashcroft, 366 F.3d 889, 892 n.1 (10th Cir. 2004). Although the BIA referred in
its decision to “withholding of removal,” since this claim was filed after IIRIRA’s
effective date, we will use the term “restriction on removal” here.
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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substantial evidence, we reverse the BIA’s order affirming the IJ’s decision,
and remand for further consideration.
LEGAL STANDARD
To be eligible for asylum, an alien must first show that he is a “refugee.”
Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004). To establish refugee
status, the applicant must demonstrate that he has suffered past persecution or has
“a well-founded fear of [future] persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A). “Aliens basing their asylum claims upon a
well-founded fear of future persecution must show both a genuine, subjective fear
of persecution, and an objective basis by credible, direct, and specific evidence in
the record, of facts that would support a reasonable fear of persecution.”
Wiransane, 366 F.3d at 893 (quotation omitted).
To qualify for restriction on removal, an alien must show a “clear
probability” of persecution in the proposed country of removal. Niang v.
Gonzales, 422 F.3d 1187, 1195 (10th Cir. 2005). The Convention Against
Torture prohibits the return of an alien to a country where “it is more likely than
not that he or she would be tortured.” 8 C.F.R. § 1208.16(c)(2). “The alien must
show, however, that the persecution would be so severe that it would rise to the
level of torture.” Niang, 422 F.3d at 1196.
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STANDARD OF REVIEW
“Since the BIA summarily affirmed the IJ’s decision, we review the IJ’s
analysis as if it were the BIA’s.” Estrada-Escobar v. Ashcroft, 376 F.3d 1042,
1045 (10th Cir. 2004). “We review the [IJ]’s legal determinations de novo, and
[his] findings of fact under a substantial-evidence standard.” Niang, 422 F.3d
at 1196. The agency’s findings of fact are conclusive unless the record
demonstrates that “any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). 3
ANALYSIS
1. Is Mr. Yan Really a Christian?
As noted, the IJ stated that he had “concerns about [Mr. Yan’s]
commitment to Christianity.” Admin. R. at 41. Among other things, Mr. Yan
“seemed to have only rudimentary knowledge of [the] Christian religion.”
Id. at 40. As will be seen, however, the record does not support this finding.
3
The REAL ID Act of 2005 includes new provisions relating to agency
credibility determinations, now codified at 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1229a(c)(4)(C), and 1231(b)(3)(C). These provisions, however, only apply to
aliens who applied for asylum or other relief after May 11, 2005, the effective
date of the Act. See Pub. L. No. 109-13, div. B § 101(h)(2), 119 Stat. 231, 305.
Mr. Yan applied for asylum, restriction on removal, and CAT relief in 2002.
Hence, the new provisions do not apply to his claims.
-4-
On cross-examination in this case, counsel for the DHS administered a sort
of mini-catechism to Mr. Yan. To the extent Mr. Yan was unable to answer the
questions posed to him, some of which were phrased as “trick” questions, the IJ
concluded that Mr. Yan was not really a Christian. To the extent he was able to
answer the questions, the IJ concluded that Mr. Yan had been coached. The IJ
placed very little weight on what would seem to be the most salient factor in
determining the sincerity of Mr. Yan’s beliefs: his highly personal and emotional
testimony about his conversion to faith in Jesus Christ and his participation in
Christian activities in China.
Mr. Yan testified that at the time he became a Christian, he was in the
hospital after injuring his back on the job. Mr. Yan was very depressed as a
result of his injuries. He stated that a co-worker named Shu Wei Gong came to
visit and to talk with him about Christianity. The co-worker told Mr. Yan not to
be depressed because “there’s still good people around in this world.” Id. at 73.
Mr. Gong told him:
in this world, there’s a loving God and he send his beloved son to
come to this world to be our Savior. He sent his beloved son in order
to save us. He was nailed to a cross. He said who in this world will
give their only beloved son to come and to save the world [from] sin.
When I heard all this message, I was very touched.
Id. at 74.
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After he was released from the hospital, Mr. Yan began attending meetings
with other Chinese Christians. The first meeting was at the house of Mi You
Min. There were four people present. They had a Sunday worship service where
they read the Bible together and sang hymns. They also ate a meal together.
Mr. Yan stated that these people were “very friendly and they are different from
people who are outside so I decide to stay.” Id. at 75.
Mr. Yan began attending weekly meetings with his newfound Christian
friends. He supplied an intriguing detail about the members of this “house
church.” They would not come to his house, he said, because he had not yet been
baptized. Mr. Yan remedied this defect on Christmas Day, December 25, 1998.
He described his baptism as follows:
Shu Wei Gong told me that today, we have a Pastor Li coming
here to do a baptismal service on you and everybody clapped their
hand and was very happy. And, after that, we all read our Bible and
we all pray together. And then, after we sing the songs and Pastor Li
said I will hold a baptismal service for Mr. Yan You Ting.
[. . .]
And I was standing there and the Pastor Li put his hand on my
head. He said in the name of the Father, the Son, and the Holy
Spirit, I baptize you, Mr. Yan You Ting that you will belong under
the name of Christ. All of your sins are forgiven and your soul, your
spirit will always go to heaven and then he take some water from the
bowl and sprinkle it on my head and then I say, amen and everybody
say amen.
Id. at 77.
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When asked how the ceremony had made him feel, Mr. Yan stated, “I [felt]
that I have gone through a rebirth experience that was I – that what I was
belonged to my past. Now, I’m a new person.” Id. at 78. He stated further that
All my emotion, my whole being, my mental state that I have
somebody to rely on. I have. Before, I didn’t know that in this
world, there’s such a loving God that will have his son to die for me.
I think he is a great God. I will attend all of the meetings. I will
grow.
Id.
Mr. Yan was asked to sing a Christian hymn, and he did. The translation
was “Jesus loves you. Jesus loves you in your life. The greatest blessing is Jesus
love you.” Id. at 113.
Notwithstanding these displays of evangelical piety, the agency attempted
on cross-examination to trip Mr. Yan up on his knowledge of the Bible and
Christian doctrine. The IJ’s conclusion, that Mr. Yan knew very little about
Christian doctrine, seems surprising in light of the actual testimony presented.
As noted, Mr. Yan had already demonstrated in his testimony under questioning
by his own attorney a very personalized notion of the doctrine of the Atonement
and the concept of rebirth. His subsequent testimony under cross-examination
showed that he also knew a thing or two about the Bible:
Q. When you did your Bible study, which part did you study more,
the Old or the New Testament?
A. Usually, the New Testament more.
-7-
Q. If I said, let’s see, for they shall inherit the kingdom, what is the
part that goes before that? It’s in the Beatitudes?
A. Blessed are the meek for they shall be inheriting the kingdom of
God. Blessed are those who are persecuted and those are the people
that also inherit the kingdom of God.
Q. The meek inherit the earth. People who are persecuted in my
name’s sake are the ones who would be inheriting the kingdom.
[Interpreter] TO JUDGE
That is the interpreter’s fault because meek and shising, they are two
that are very close.
MR. YAN TO [DHS counsel]
A. Meek is the one that inherit the earth.
[Interpreter] TO JUDGE
It is the interpreter’s fault, Your Honor.
[DHS counsel] TO MR. YAN
Q. Okay. Let me try something else. Where would you find the
Book of Nefi [sic]?
A. Never heard of this book Nefi [sic].
Q. Where would you find the collection called the doctrines and
covenants?
A. It is in the Old Testament in the Book of the Law.
Q. Which one’s the Book of the Law?
A. The Book of Moses. The five Book of Moses.
Q. Which one of the five Books of Moses?
-8-
A. It is the Book of Genesis, the Book of Exodus, the Books of
Leviticus, the Book of Deuteronomy, and the Book of the Law.
Q. Which one of those books is considered the Book of Laws?
There’s one that’s considered the Book of Laws?
A. It’s the Genesis and the Book of the Law.
[DHS counsel] TO JUDGE
For the record, the Book of Law is Deuteronomy. And also, for the
record, Nefi [sic] is in the book of Mormon and doctrine and
covenants is not in the Bible. It’s a separate text in the Mormon
church.
MR. YAN TO [DHS counsel]
A. I’m sorry, it should be Deuteronomy. It should not be the
Genesis. My memory is failing bad on me.
[DHS counsel] TO MR. YAN
Q. What are the psalms? What type of writing is the Psalms?
A. Psalms is David’s song of praise to God.
Q. That’s correct.
A. My memory is not very good.
[. . .]
Q. Were you confirmed into the family church?
A. Yes.
Q. How were you confirmed?
A. What do you mean by confirmed?
-9-
Q. Well, you just answered yes. What did you understand it to
mean?
A. How do you get – what you mean by confirm?
Q. You just answered yes to when I asked you.
A. Yeah. I don’t understand what is getting confirmed into the
church. I’m sorry because I really don’t understand your question in
the first place. Could you explain again the meaning to be
confirmed?
Id. at 102-05.
Several observations may be made about this exchange. First, Mr. Yan’s
responses to the Bible questions were fairly accurate. He was able to complete
the Beatitudes question, notwithstanding an error by the interpreter. He knew
four of the first five books of the Bible, and referred to the first five books of
Moses as the “Book of the Law,” consistent with Jewish practice, which calls
these five books as the Torah, or “law.” 4 He had, unsurprisingly, never heard of
the book of Nephi, which is found in the Book of Mormon and not the Bible.
He knew what the Psalms are. While he became confused about confirmation,
that may be understandable if his particular group was Protestant and
non-sacramental. Confirmation is a rite practiced primarily in Western
4
As the government’s counsel pointed out, the book of Deuteronomy
(meaning “second law”) may also be referred to as the “Book of the Law”;
Mr. Yan acknowledged this.
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Christianity among Catholic, Anglican and Lutheran churches. 5 Only Catholics,
among Western denominations, continue to regard confirmation as a binding
sacrament of the Church. It should also be noted that Mr. Yan only has a high
school education, is the only Christian in his family, and at the time of the hearing
had only been a Christian for five years.
Later, there followed an exchange that the IJ found particularly significant:
Q. Did you celebrate Easter this year?
A. Yes.
Q. How did you do that?
A. I celebrated Easter all by myself at home by myself.
Q. What did you do?
A. I make own Holy Communion and I pray.
Q. Do you know when Easter is?
A. Easter is April – April something. Christmas is December the
25th. Easter is – let me think. I cannot really remember. My
memory’s getting bad.
Q. Do you know what Easter celebrates?
[...]
A. I cannot remember. I remember Christmas is the time that we
celebrate Jesus coming.
5
See “Confirmation” in The Catholic Encyclopedia (online version),
http://www.newadvent.org/cathen/04215b.htm (visited Dec. 29, 2005).
-11-
Q. You don’t know what Easter [is]?
A. It’s the resurrection of Jesus.
Q. Why didn’t you remember that before?
A. Cause – because see my mind reacts very slow. Sometimes, I just
got lapses. Because I have had brain injuries twice already.
Id. at 111-12.
Mr. Yan’s inability to remember the exact day of Easter is unsurprising.
The exact date differs from year to year, and actually requires a set of
extraordinarily complex calculations. As the U.S. Naval observatory explains,
Easter can occur at various times each year, between March 22 and
April 25. http://aa.usno.navy.mil/faq/docs/easter.html (visited Dec. 29, 2005).
Christmas, of course, occurs dependably each year on December 25th.
Mr. Yan knew that. While it is true that it took Mr. Yan a moment or two to
remember that Easter concerns “resurrection,” this is a slender reed indeed on
which to make an adverse credibility finding, particularly given the fact that the
word “Easter” is itself an English word referring to a festival of pagan origin 6 and
appears nowhere in the foundational document of Christianity, the Bible.
6
“Easter or Eastre as it is originally, was the name of a pagan goddess of
Spring whose festival was held on the vernal equinox.”
http://www.wordorigins.org/wordore.htm (visited Feb. 9, 2006).
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We are troubled that while the IJ relied heavily on Mr. Yan’s responses to
the mini-catechism administered at the hearing, stressing his formal, doctrinal
knowledge of Christianity, he barely addressed, and gave no good reason for
rejecting, Mr. Yan’s testimony about his personal experiences with Christianity.
We agree with the Eighth Circuit that a detailed knowledge of Christian doctrine
may be irrelevant to the sincerity of an applicant’s belief; a recent convert may
well lack detailed knowledge of religious custom. Ahmadshah v. Ashcroft,
396 F.3d 917, 920 n.2 (8th Cir. 2005). Cf. also Mejia-Paiz v. INS, 111 F.3d 720,
725-29 (9th Cir. 1997) (Ferguson, J., dissenting) (stating that where alien’s
testimony that he belongs to a church is uncontroverted, court’s opining on
sincerity of alien’s religious belief, based on his failure to adhere to particular
religious customs, violates First Amendment). Or, as Mr. Yan’s counsel before
the BIA put it, Mr. Yan is “a believer and adherent of Christianity and not a
seminary student.” Admin. R. at 8.
The IJ also relied on alleged inconsistencies in Mr. Yan’s record of church
attendance in the United States. The IJ noted that Mr. Yan testified on direct
examination that he attends church every week or every other week. Actually,
what Mr. Yan said, in response to a question about how often he attends church
in the United States (not specifically in Denver) was “Sometimes every week.
Sometimes, every two weeks.” Id. at 93. The IJ found this inconsistent with
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Mr. Yan’s statement that he had attended church only twice since moving to
Denver from Los Angeles, about five months before the hearing. Yet Mr. Yan
did provide an explanation for his lack of regular attendance in Denver:
Q. What church do you attend?
A. In Los Angeles, I attended two Chinese church. One is called
Chinese Alliance Church. The other one is called the Glory Church
but in here [Denver], I cannot find any Chinese church so I attended
American church. Only been there twice.
Id. at 108.
Mr. Yan further testified that all the services in the Denver church were in
English, and he really couldn’t understand anything. Mr. Yan also presented
testimony from a witness, Mr. Chen, who knew Mr. Yan in Los Angeles, where he
lived for two months immediately after arriving in the United States. Mr. Chen
stated that he had seen Mr. Yan at Glory Church in El Hombre, California, three
or four times, and had spoken to him there. Mr. Chen stated that Mr. Yan had
asked him to testify at the IJ hearing to prove that he had attended the Glory
Church, and that he had come to the hearing to do so, out of a sense of Christian
duty. The IJ found Mr. Chen’s testimony “relatively credible.” Id. at 38.
The only reasonable conclusion to be drawn from this record was that
Mr. Yan did attend Christian services in this country, beginning soon after his
arrival here. Notwithstanding his stumbling over a few points of Christian
doctrine, he presented a coherent, personal testimony of his conversion to faith in
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Jesus Christ in China and continued adherence to those beliefs since he arrived in
the United States. The IJ’s decision provides no valid reason for discounting
Mr. Yan’s claim to be a Christian.
2. Did the Authorities Really Persecute Mr. Yan?
Mr. Yan testified that the authorities broke up his home church, confiscated
his Bible, and threw him in jail, where he was beaten. Relying on the background
material provided from the State Department, the IJ found that a “small and
unobtrusive” house church like Mr. Yan’s (which contained only six or seven
members) would have been tolerated by authorities, if they knew about it at all.
Admin. R. at 42. This conclusion finds at least some support in a State
Department Country Religious Freedom Report in the record. Id. at 150 (stating
smaller house churches made up of family and friends “were tolerated by the
authorities as long as they remained small and unobtrusive”). What is troubling
about this line of reasoning is that the IJ appears to have made an assumption that
just because the authorities do not ordinarily attack home churches, they would
not have done so in Mr. Yan’s case. 7
7
Mr. Yan did supply some documentary evidence to support his claim. The
IJ found this evidence “of limited evidentiary value,” Admin. R. at 38, primarily
because Mr. Yan had not complied with the authentication procedures described
in 8 C.F.R. § 287.6. Since these procedures generally require attestation of
documents by the very government the alien is seeking to escape, courts generally
do not view the alien’s failure to obtain authentication as requiring the rejection
(continued...)
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The IJ did not supply any other reason for disbelieving the particular facts
that Mr. Yan related about the episode of persecution he endured in China. He
mentioned only one specific inconsistency, in whether Mr. Yan actually signed
any documents under interrogation. Id. at 39. His conclusion that “the
respondent would appear to be the most recent new member of a very small group
which this Court finds was very unlikely to have come to the attention of the
authorities in China,” id. at 43, is notably inconsistent with his earlier conclusion
that Mr. Yan was not even a Christian. In sum, the IJ gave no reason, other than
the minor inconsistency previously noted, to discount the particular facts Mr. Yan
related concerning the persecution he endured as a Christian from the Communist
government of China.
3. Conclusion
The reasons the IJ gave for rejecting Mr. Yan’s asylum, restriction on
removal, and Convention Against Torture claims are not supported by substantial
evidence in the record. We must therefore reverse and remand for further
proceedings in this case.
7
(...continued)
of a document. Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 404
(2d Cir. 2005). Here, however, the IJ did not reject the documents; he merely
found their evidentiary value to be limited.
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The BIA’s final order of removal is REVERSED and this case is
REMANDED for further proceedings.
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Yong Ting Yan v. Gonzales
Court: Court of Appeals for the Tenth Circuit
Date filed: 2006-03-02
Citations: 438 F.3d 1249
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