[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 11, 2009
No. 08-12212 THOMAS K. KAHN
________________________ CLERK
Agency No. A95-710-226
LIN LIN TANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 11, 2009)
Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.
WILSON, Circuit Judge:
Lin Lin Tang, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing her appeal of the Immigration
Judge’s (“IJ”) denial of her applications for asylum, withholding of removal, and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”). 8 U.S.C. §§ 1158,
1231; 8 C.F.R. § 208.16.
I. BACKGROUND
Tang seeks protection in the United States because she claims that she has
suffered persecution by the Chinese government on account of her religious
beliefs, specifically on account of her participation in an unauthorized Christian
house church. She fears future persecution should she return to China.
Tang was born in 1985. Her father is a transportation worker, and her
mother is a director of a government family planning office. She grew up
attending a government-sponsored Catholic church with her grandmother, but she
left because she did not like the church. While in high school, she was introduced
to an underground family church by a friend and believes that she became a
Christian at that time.
The underground church met at her pastor’s home, where the church
members studied the Bible, sang, gave testimonies, and prayed. On December 24,
2004, she was at church when seven or eight police officers arrived, arrested her
2
along with other church members, and took them to the police station. The police
accused them of belonging to a cult and beat them with fists and batons. Tang was
detained for more than 10 days, during which time she was regularly taken into a
small room for interrogation and beaten. The officers instructed Tang to sign a
letter of confession stating that there was no God, but only the Chinese Communist
Party; she refused. Tang was finally released when her parents paid the police
5,000 RMB1 as bond and 10,000 RMB as a guarantee that she would not
participate in her religious activities.
Tang was required to report to the police station every Friday at 2:00 p.m.
The police arrested her again in January, February, March, and twice in April
2005, on suspicion that she continued to belong to a family church. Each time she
was arrested, she was beaten. When she was arrested in February, she was held for
over a week, and when she was released, her parents had to take her to the hospital
to be treated for her injuries. She was severely beaten in March when she argued
with the police at the station.
1
The renminbi yuan (“RMB”) is the currency of China. U.S. Central Intelligence Agency,
The World Factbook: China (May 27, 2009), available at
https://www.cia.gov/library/publications/the-world-factbook/geos/CH.html.
3
Her medical records confirm that, in January 2005, Tang was bruised from
beatings “in the back, hand, and feet.”2 She had “multiple bruises” and was “cut on
[her] right wrist.” Tang’s medical records further report that, in March 2005, she
was “beate[n] by someone,” resulting in “[b]ack, chest, and foot pain with multiple
bruises.” Additionally, she suffered “three serious internal injuries in the back,” as
well as “two at the chest.” Furthermore, her medical records report that she
suffered “[o]ral bleeding,” along with “[b]ruises on [the] right side of [her] face.”
As a further consequence of police brutality, Tang’s medical records report that she
suffered from “[v]aginal bleeding.” Finally, the records state that she was treated
for seven days.
Tang was so distraught from this persecution that she could no longer attend
school. By the end of April 2005, Tang’s mother and grandmother believed she
could no longer remain in China and arranged for her to leave. Her grandmother
provided her with a French passport and instructed her to leave her Chinese
documentation at home. Tang alleges that she did not know that the French
passport she carried was illegally altered until she was so informed by authorities
in the United States. She traveled first to Japan, where she remained for a week,
but did not stay because “America has more freedom,” and her grandmother had
2
As discussed below, contrary to the BIA’s statement, the medical records were
introduced into evidence in a timely manner, as part of Exhibit 4.
4
arranged for her to go to the United States. While she was in Japan, she called her
family, who told her that when she did not show up at the police station as
scheduled, the police came to their home and beat up her parents. She then
traveled on to the United States.
In her airport interview, when asked the purpose of her travel to the United
States, Tang responded that she was Christian and that there were “no rights [and]
no [f]reedom” in China and that the “government must approve what church you
can go to.” When asked to which church she belonged, she replied, “It’s just
family style.” When asked the name of the church, she replied, “Never went to
church, just go to people’s houses.” In her credible fear interview, she testified
about her underground church, multiple arrests and beatings, and that there was
nowhere else in China where she could live and be safe.
While in the United States, Tang has been living with her aunt and uncle in
Andalusia, Alabama. She regularly attends the First Baptist Church in Andalusia
and has spoken with the pastor about her religious persecution.
None of Tang’s friends or relatives testified at her hearing before the IJ,
either because they were busy or had to work. The IJ issued an oral decision in
which he determined that Tang did not establish eligibility for asylum because she
was not credible based on inconsistencies in her testimony as well as her
demeanor. The IJ, after refusing to consider untimely filed documents, found that
5
Tang had failed to present probative corroborating evidence. The IJ found that
Tang’s responses seemed “well-rehearsed,” primarily because she stated, more
than once, that she was detained by the Chinese police for “more than 10 days” and
because she was unable to answer questions when posed in different ways. The IJ
concluded that it was implausible that her mother, a “ranking member of the
government of China,” would either pay “bribes” to get Tang out of prison or help
Tang leave China illegally, or that the daughter of a government official “would be
jailed and beaten for merely being a member of a house church.” The IJ noted that
Tang had not mentioned her longtime, regular Catholic church attendance in either
her airport interview or her credible fear interview. The IJ found it significant that
she did not mention her detentions and beatings by Chinese authorities at her
airport interview. Tang appealed to the BIA, on the grounds that the IJ should
have accepted her documentary submissions and should not have ruled her
incredible. The BIA held that Tang’s documentary submissions were untimely and
that Tang was incredible. Tang then petitioned this court for review, asserting the
same two grounds for appeal.3
3
Ordinarily, we can affirm on any grounds supported by the record. See, e.g.,
American United Life Ins. v. Martinez, 480 F.3d 1043, 1059 (11th Cir. 2007). However, in this
case, because the Government has not expressly asked us to rely on the IJ’s alternative holding
denying Tang asylum in his discretion, and because the BIA has not expressed any opinion on
this alternative holding, we decline to comment on this holding. This does not, however,
preclude the BIA from considering it on remand.
6
“[Where], as here, the BIA issues its own opinion, we review only the
decision of the BIA, except to the extent that the BIA expressly adopts the IJ’s
decision.” Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir.
2007) (per curiam). Here, the BIA issued its own opinion, without expressly
adopting the IJ’s opinion, but affirmed and relied upon the IJ’s decision and
reasoning. Therefore, we first review the IJ’s opinion, to the extent that the BIA
found that the IJ’s reasons were supported by the record. We then review the
BIA’s decision, with regard to those matters on which it rendered its own opinion
and reasoning.
II. DISCUSSION
A. Due Process
Tang first argues that the IJ denied her due process right to a full and fair
hearing by not exercising his discretion to admit her untimely-filed supporting
documents and that the BIA erred in affirming the IJ’s decision. We have
“jurisdiction to review substantial constitutional claims raised in the immigration
context.” Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1218 (11th Cir. 2006) (per
curiam).
“Due process requires that aliens be given notice and an opportunity to be
heard in their removal proceedings.” Fernandez-Bernal v. Att’y Gen. of the United
States, 257 F.3d 1304, 1310 n.8 (11th Cir. 2001). “To establish due process
7
violations in removal proceedings, aliens must show that they were deprived of
liberty without due process of law, and that the asserted errors caused them
substantial prejudice.” Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341-42 (11th
Cir. 2003) (per curiam). However, “the failure to receive relief that is purely
discretionary in nature does not amount to a deprivation of a liberty interest.”
Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (internal
quotation marks and citation omitted).
Here, Tang sought to have admitted into evidence several statements from
her family and friends after the filing date set by the IJ. The record demonstrates
that Tang was notified in February 2006, when she filed her asylum application,
that she was to file all of her supporting documents by September 1, 2006 for a
September 18, 2006 hearing. Her hearing was eventually reset for November 13,
2006. According to local rules, Tang was to file her supporting documents at least
22 days before her hearing. She had over seven months to file her documents, and
she did file several documents in August 2006.4 Tang has not shown good cause
for missing the deadline.
4
Tang’s attorney moved for a continuance (see page 346 of the record) on October
27, 2006, and the IJ denied it on November 3, 2006 (see page 359) stating: “If counsel accepts
representation on a scheduled case counsel must be prepared to go forward on the scheduled
date.”
8
We conclude that the IJ’s decision to exclude evidence offered for
submission after a court-ordered filing deadline is discretionary. The governing
regulations provide the IJ with administrative control over the removal hearing. 8
C.F.R. § 1003.31(c). The IJ “may set and extend time limits for the filing of
applications and related documents and responses thereto, if any. If an application
or document is not filed within the time set by the [IJ], the opportunity to file that
application or document shall be deemed waived.” Id. Tang does not have a
constitutionally protected liberty interest in the admission of evidence after the
court-ordered deadline; thus, she cannot establish a due process violation based on
the IJ’s adverse decision. Accordingly, Tang’s petition is denied as to her due
process claim.
B. Credibility Finding
Tang also argues that the IJ’s and BIA’s adverse credibility findings were
not supported by specific, cogent reasons or by substantial evidence. She argues
that the record compels a reversal.
i. Standard of Review
Factual determinations, including credibility determinations, are reviewed
under a substantial evidence standard, which provides that the decision “can be
reversed only if evidence ‘compels’ a reasonable fact finder to find otherwise.”
9
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (per curiam);
see also D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004)
(“Credibility determinations likewise are reviewed under the substantial evidence
test.”). This test requires us to “view the record evidence in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en
banc). We must affirm the agency’s decision “if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” D-
Muhumed, 388 F.3d at 818 (internal quotation marks and citation omitted). “To
reverse the IJ’s fact findings, we must find that the record not only supports
reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th
Cir. 2003).
In order to establish eligibility for asylum, an applicant must provide
evidence in the record that is “credible, direct, and specific.” Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (quotation omitted). If an alien’s
testimony is credible, it may be sufficient, without corroboration, to satisfy her
burden of proof in establishing her eligibility for relief from removal. Id.; 8 C.F.R.
§ 208.13(a). Likewise, a denial of asylum relief can be supported solely by an
adverse credibility determination, especially if the alien fails to produce
corroborating evidence. Forgue, 401 F.3d at 1287. If the court explicitly
10
determines that the alien lacks credibility, the court “must offer specific, cogent
reasons” for the finding. Id. The burden then shifts to the alien to show that the
credibility decision was not supported by “specific, cogent reasons” or was not
based on substantial evidence. Id.
In the REAL ID Act of 2005, Congress amended the law regarding
credibility determinations for applications for asylum and withholding of removal
filed after May 11, 2005. See Pub. L. No. 109-13 § 101, 119 Stat. 302. As 8
U.S.C. § 1158(b)(1)(B)(iii) now reads:
Considering the totality of the circumstances, and all relevant factors,
a trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant's or witness's account, the consistency
between the applicant's or witness's written and oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal
consistency of each such statement, the consistency of such statements
with other evidence of record (including the reports of the Department
of State on country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant's claim, or
any other relevant factor. There is no presumption of credibility,
however, if no adverse credibility determination is explicitly made,
the applicant or witness shall have a rebuttable presumption of
credibility on appeal.
Tang’s application, which was filed in February 2006, is governed by the REAL
ID Act, whose provisions apply to applications for asylum filed on or after May
11, 2005.
11
An alien applying for asylum must show that she is a refugee. 8 C.F.R.
§ 208.13(a). An alien qualifies as a refugee if she can establish that she has
suffered past persecution or has a well-founded fear of future persecution, based on
a protected ground, in her country of origin. 8 C.F.R. § 208.13(b)(1) and (2). The
five protected grounds are “race, religion, nationality, membership in a particular
social group, or political opinion. . . .” 8 U.S.C. § 1158(b)(1)(B)(i). In order to be
well-founded, an applicant’s fear of persecution must be “subjectively genuine and
objectively reasonable.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1011
(11th Cir. 2008) (quotation omitted).
An alien seeking withholding of removal must show that her “life or
freedom would be threatened . . . because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion” if she returned to the
country in question. 8 U.S.C. § 1231(b)(3)(A). To do so, she must demonstrate
that she “more-likely-than-not would be persecuted or tortured upon h[er] return to
the country in question.” Mendoza, 327 F.3d at 1287.
If an alien establishes past persecution in her country based on a protected
ground, it is presumed that her life or freedom would be threatened upon return to
her country unless the government shows by a preponderance of the evidence that
(1) the country’s conditions have changed so that the applicant’s life or freedom
would no longer be threatened upon her removal; or (2) the alien could avoid a
12
future threat to her life or freedom by relocating to another part of her country, and
it would be reasonable to expect her to do so. 8 C.F.R. § 208.16(b)(1)(i);
Mendoza, 327 F.3d at 1287.
ii. Perceived Inconsistences in Tang’s Testimony
We agree with the BIA’s conclusion that the IJ erred in (1) relying on letters
from Tang’s family and friends to discount Tang’s testimony, despite his refusal to
admit those letters into evidence; and, (2) misstating a significant portion of Tang’s
testimony as to the number of times she had been detained and beaten.5 To the
extent that these errors led the IJ to find inconsistencies in Tang’s testimony and to
eventually find her incredible, we agree with the BIA that such purported
inconsistencies need not be credited.
However, we also disagree with two additional grounds on which the IJ
based his adverse credibility finding. The IJ concluded that Tang was incredible
because (a) he did not believe that her mother would have paid bribes to get her out
of jail or would have helped her leave China illegally because her mother worked
for a government family planning office; and (b) the IJ concluded that her
responses as to whether she was “Christian” prior to joining the family church
were inconsistent. Although the BIA indicated its approval of these purported
5
In particular, the asserted inconsistency that we will not credit is Tang’s and her parents’
characterization of her December 2004 detention as lasting for “over 10 days.”
13
inconsistencies, we conclude that the record compels us to find that Tang’s
testimony in these regards was wholly consistent.
First, there was no evidence that Tang’s mother was a high ranking member
of the Chinese government who could protect her from police brutality. The IJ’s
statements to that effect were invented out of whole cloth. Furthermore, the IJ’s
supposition that Tang’s mother would not have violated Chinese law in order to
protect her daughter are not only without support in the record, but are contrary to
common sense. It is appropriate for us to reverse when a credibility determination
is based solely on speculation and conjecture, and the IJ’s conclusion that Tang’s
mother would not “flagrantly” violate Chinese law to help her daughter flee
amounts to little more than speculation. See Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004) (“[W]e will reverse where the adverse credibility
determination is based upon speculation. . . .”); Gao v. Ashcroft, 299 F.3d 266, 272
(3d Cir. 2002) (“Adverse credibility determinations based on speculation or
conjecture, rather than on evidence in the record, are reversible.”); Salaam v. INS,
229 F.3d 1234, 1238 (9th Cir. 2000) (per curiam) (“This Court reverses an adverse
credibility determination that is based on ‘speculation and conjecture’ and is not
supported by evidence in the record.”) . To the extent that the IJ based his adverse
credibility determination on his personal perceptions about the reasonableness of
14
Tang’s mother’s actions, his determination is not supported by any evidence– let
alone by substantial evidence due deference.
Second, the IJ found inconsistencies between Tang’s testimony at her airport
interview and her testimony at her credible fear interview and asylum hearing with
regard to her early Christian experience. The IJ concluded that Tang was
inconsistent because she did not mention her Catholic-church attendance during
her airport interview. In contrast, we find that her testimony on this point was
wholly consistent.
The REAL ID Act provides that the IJ may rely on “the consistency between
the applicant’s or witness’s written and oral statements (whenever made and
whether or not under oath, and considering the circumstances under which the
statements were made). . . .” 8 U.S.C. § 1158(b)(1)(B)(iii). We conclude that
when an IJ “consider[s] the circumstances” of an airport interview, the IJ should
keep in mind that an airport interview is not an application for asylum. An IJ may
of course consider whether there are contradictions between the airport interview
and later testimony. However, when considering whether later testimony qualifies
as a contradiction, as opposed to an elaboration, of an applicant’s airport interview
statements, an IJ should note that during an airport interview, unlike in a hearing
with full due process accorded, the alien is not represented by counsel and may be
markedly intimidated by official questioning, particularly if the alien has indeed
15
been subject to government abuse in her country of origin. See Balasubramanrim
v. INS, 143 F.3d 157, 163 (3d Cir. 1998) (explaining that “an arriving alien who
has suffered abuse during interrogation sessions by government officials in his
home country may be reluctant to reveal such information during the first meeting
with government officials in this country”). See also Ramsameachire, 357 F.3d at
180 (finding that an interview can be less reliable if it appears that the alien is
reluctant to reveal information due to coercive experiences in her or her country of
origin); Balogun v. Ashcroft, 374 F.3d 492, 504 (7th Cir. 2004) (noting that “if
there are language barriers or if the applicant has a reasonable fear of governmental
authority (perhaps because the applicant recently has been subjected to
governmental abuse or coercion), then evasive answers on the question of fear of
persecution would not be a reliable indicator of a true lack of fear”). Thus, if an
alien’s statements during an airport interview are less detailed than the alien’s later
testimony, the IJ should not focus exclusively on airport interview omissions,
rather than contradictions, when determining whether the alien is credible.
The Seventh Circuit has concluded that “airport interviews are not always
reliable indicators of credibility” subsequent to the passage of the REAL ID Act.
Moab v. Gonzales, 500 F.3d 656, 660 (7th Cir. 2007) (alterations and citation
omitted).
16
As the Second Circuit has held, “because those most in need of asylum may
be the most wary of governmental authorities, the BIA and reviewing court must
recognize, in evaluating statements made in an interview, that an alien may not be
entirely forthcoming in the initial interview.” Ramsameachire, 357 F.3d at 179.
Although the IJ took issue with Tang’s characterization of her childhood as
without religion, since she attended government-sponsored Catholic church with
her grandmother, Tang easily explained this inconsistency by clarifying that she
did not consider herself to have had a religion prior to joining the house church.
Specifically, she differentiated, in her mind, between “Catholic” and “Christian”
churches, as follows:
Q. Okay. Your grandmother is Catholic, so that’s also a Christian
church, correct?
A. No, that, they are different. Catholic church is different from
Christian church.
Transcript of Hearing at 52. She stated consistently throughout her interviews that
her grandmother was Catholic. Tang did not personally accept the government-
sponsored Catholic church, which she understood to be different from Christianity.
Rather, she only decided to belong to a religious practice when she joined the
house church. Given that even in her airport interview she stated that one of her
reasons for coming to the United States was that she was Christian and that in
China the government controls which church one can attend, we do not find any
17
inconsistency in her testimony. Although her hearing testimony was more in
depth, she said nothing that cannot be squared with her earlier statements. Again,
on these facts, that which the IJ considered an inconsistency, we identify only as a
helpful elaboration.
Finally, the IJ relied on the Department of State’s country conditions report,
which reported that house churches were typically targeted when they became too
large, to conclude that, since Tang’s church had only eight members, it would not
have been targeted. The IJ also relied on a Canadian report that identified the
Fujian Province, where Tang lived, as having the “most liberal policy on religion
in China, especially Christianity.”
However, “observations of religious persecution in China are only useful to
the extent that they comment upon or are relevant to the highly specific question of
whether this individual suffered persecution.” Chen v. United States INS, 359 F.3d
121, 131 (2d Cir. 2004) (emphasis in original). The IJ did not suggest that the
country reports conclusively stated that no smaller house church was ever targeted.
Moreover, the record includes evidence that unregistered religious followers were
targeted and that “[a]uthorties frequently disrupted house church meetings and
retreats and detained leaders and church members.” See U.S. D EPT. OF S TATE,
C HINA: P ROFILE OF A SYLUM C LAIMS AND C OUNTRY C ONDITIONS at 6 (Oct. 2005);
U.S. D EPT. OF S TATE, C HINA (INCLUDES T IBET, H ONG K ONG, & M ACAU) (Mar. 8
18
2006). The State Department further reports that “[c]orruption at the local level
was widespread. Police officers reportedly coerced victims of crimes, took
individuals into custody without due cause, arbitrarily collected fees from
individuals charged with crimes, and mentally and physically abused victims and
perpetrators.” U.S. D EPT. OF S TATE, C HINA (INCLUDES T IBET, H ONG K ONG, &
M ACAU). We do not “expect a judge to selectively consider evidence, ignoring
that evidence that corroborates an alien’s claims and calls into question the
conclusion the judge is attempting to reach.” Shah v. Att’y Gen. of the United
States, 446 F.3d 429, 437 (3d Cir. 2006). In contrast to the IJ, who appears to have
considered the State Department report selectively, we conclude that the State
Department country report supports Tang’s testimony.
Two of the IJ’s stated inconsistencies are not as easily rejected. First is
Tang’s demeanor during the hearing, something that the IJ observed and we did
not. However, the IJ’s main criticism of her demeanor was that her testimony was
too complete and seemed rehearsed, and that she was unable to answer questions
when posed in different ways. While it is true that when she answered her own
attorney’s questions her answers were very precise and detailed, the IJ does not
point to where in the record she had trouble answering questions that were posed
differently. In our review of the record, we have not seen any evidence of this.
However, because we were not there to hear or see the testimony, we cannot reject
19
this criticism out of hand. See, e.g., Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004)
(discussing the heightened deference given to demeanor-based credibility
determinations).
We also have some concern about the BIA’s reliance on the inconsistencies
between Tang’s failure to mention her beatings in the airport interview, and her
later testimony as to the beatings. Here, given Tang’s experiences with police
coercion and brutality, it would have been reasonable for her to be less than
forthcoming in her initial interview. Although she did not state that she had been
beaten in China, she was not asked about that. But she was asked what harm
would come to her if she returned to China and logically, one would think that she
would have mentioned the beatings then. However, Tang was not required or
requested to provide further information at that time. Additionally, Tang said
nothing in the airport interview to actually contradict her later testimony that she
was brutally beaten multiple times by the Chinese police. Although the IJ and the
BIA were justifiably suspicious when Tang failed to mention the beatings when
specifically asked what harm would come to her in China, the fact that the medical
records actually corroborated the beatings, and the fact that the BIA erroneously
believed that the medical records were not in evidence are strong factors pointing
to a remand.
20
As noted, the BIA mistakenly believed that the medical records were not in
evidence. However, the IJ accepted the medical records into evidence as Exhibit 4,
part G. See Hearing Transcript at 20-21.6 Because the records did not mention the
surgery that Tang testified about, the IJ appears to have discounted them entirely.
These records, however, document the January and March beatings; the March
record also states that she was treated for seven days and had “three serious
internal injuries in the back, and two at the chest.” The records also state that she
had foot pain, which would comport with Tang’s testimony. Additionally, the
records are extremely sparse, with very little information beyond the diagnosis and
prescriptions; it is conceivable that such records would not include a minor
surgery. Because the medical records buttress the vast majority of Tang’s
testimony, the BIA’s erroneous disregard of the records is a strong factor pointing
to a remand.
Because the medical records corroborate the vast majority of Tang’s
testimony, because the BIA’s erroneous belief that the medical records were not in
evidence (necessarily tainting the BIA’s credibility determination with regard to
the fact of beatings vel non), because of our rejection of two credibility
determinations (i.e. the speculation about Tang’s mother and the perceived
6
Tang timely submitted the medical records to the IJ in August, about two months
before her hearing; the records were not part of the untimely submission that Tang made a week
before her hearing.
21
inconsistencies with regard to Tang’s early Christian experiences), and because of
our concern with regard to two additional inconsistencies relied on by the IJ and
BIA (i.e. Tang’s demeanor and her failure to mention the beatings at the airport
interview), we conclude that it is appropriate to vacate the instant decision and
remand to the BIA to enable the BIA or IJ to reevaluate its decision in this case and
its credibility determinations in light of this opinion and in light of the medical
records. Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 (2006) (per curiam)
(reversing court of appeals because it had decided a definitive issue that the BIA
had not had the opportunity to address and holding that remand was appropriate in
such cases); Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301 (11th Cir. 2009).
Although we deny Tang’s petition as it relates to her due process claim, we
grant the petition in part as it relates to the BIA’s adverse credibility findings,
vacate the BIA’s decision, and remand for further proceedings
PETITION DENIED IN PART, GRANTED IN PART, VACATED and
REMANDED.
22