Caou v. Atty Gen USA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

5-12-2005

Caou v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-4256

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-4256

YUN JUN CAO

Petitioner

v.

ATTORNEY GENERAL

OF THE UNITED STATES OF AMERICA,

Respondent

On Petition for Review of Order of the

Board of Immigration Appeals

(Board No. A79 309 920)

Argued November 18, 2004

Before: ROTH, SMITH, and BECKER, Circuit Judges.

(Filed: May 12, 2005)

NORMAN KWAI WING WONG (argued)

401 Broadway, Suite 1205

New York, NY 10013

Attorney for Petitioner

PETER D. KEISLER

JOHN C. CUNNINGHAM

MICHELLE R. THRESHER

JEFFREY M. SENGER (argued)

Office of Immigration Litigation

United States Department of Justice

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

OPINION OF THE COURT

BECKER, Circuit Judge.

Yun Jun Cao, a Chinese national, petitions for review of the

denial by the Board of Immigration Appeals (BIA) of her

application for asylum and withholding of removal and for

protection under the Convention Against Torture (CAT). Cao

claims that, while working as a pediatrician in a Chinese hospital,

she discovered that the hospital was committing infanticide in an

attempt to comply with China’s population control policy. After

her letter to a Hong Kong news reporter exposing this practice was

intercepted by the Chinese government, she says that she was

detained for three months, interrogated, and physically abused.

Upon release from prison, Cao fled China and arrived in the United

States on a visitor’s visa.

Cao’s allegations that she was persecuted for exposing and

criticizing the practice of infanticide, if credible, would be

sufficient to establish a valid asylum claim under the amended 8

U.S.C. § 1101(a)(42)(2005). The Immigration Judge (IJ), however,

denied Cao’s claim for relief on the basis of an adverse credibility

determination. After declaring that Cao’s demeanor as a witness

was “quite perfect,” the IJ discredited virtually every aspect of

Cao’s testimony. With respect to the infanticide issue, the IJ

proceeded on the basis of the notion that there is no real distinction

between infanticide and forced abortion, which led her to be

incredulous that Cao could be so offended by infanticide when she

was already aware of the practice of forced abortion. The IJ made

no attempt to anchor this aspect of her credibility finding to the

record. Additionally, the IJ found a lack of credibility with respect

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to a number of other aspects of Cao’s testimony, each of which turn

out to be either based on speculation or without any support in the

record. The IJ thus improperly discredited Cao’s testimony in a

number of material respects.

The BIA summarily affirmed the IJ’s decision without

opinion. Thus, we review the IJ’s decision alone. Because the IJ’s

determination does not meet the substantial evidence standard

under which the decision must be reviewed, see infra Part II, we

will grant Cao’s petition for review and remand to the BIA for

further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Cao attended the Gaungxi Province College of Traditional

Chinese Medicine and then practiced as a pediatrician at the

Second Affiliated Hospital of Guangxi Province in the city of

Nanning. She is married and has a daughter, and both her husband

and daughter remain in Nanning at this time. The following is

Cao’s testimony about the events beginning in 1999.

In that year, after fifteen years of medical practice, Cao

discovered that her hospital was killing live born babies who were

born in violation of China’s population control policy, described in

the margin. 1 Although she had been aware of China’s family

planning policy and had previously known that officials would at

times force women to have late-term abortions in which the fetus

1 In 1979, the Chinese government first instituted a

comprehensive family planning policy which established quotas on

the number of children permitted for each couple. The policy has

changed over time, relying in varying degrees on education,

economic incentives, propaganda, and coercive measures to ensure

compliance. See U.S. State Department, China: Profile of Asylum

Claims and Country Conditions 20 (1998) [hereinafter 1998 China

Profile]. While the government officially denies that physical force

is used to compel abortion or sterilization, there are widespread

reports that such coerced procedures nevertheless occur. Id.

Neither the Chinese government nor the U.S. State Department has

officially recognized the use of infanticide as part of China’s

population control policy.

3

was terminated before exiting the birth canal, Cao did not know

that the hospital was committing infanticide until 1999.

Cao realized that the hospital was committing infanticide

only after her Pediatrics department moved to the same floor as the

Obstetrics/Gynecology (Ob/Gyn) department due to hospital

renovations. One day, she noticed a woman crying in the

Obstetrics ward and was told that the woman’s child had died

suddenly after she had given birth. Cao’s suspicions were raised

because the obstetricians had not consulted with the Pediatrics

department. An Ob/Gyn nurse told Cao, “never mind about that,

that was business for family planning policy.”

After this incident, Cao began to notice other women crying,

each of whom claimed her baby had died shortly after birth. She

finally confronted Lao Zi Juan, a friend from medical school, who

worked in the Ob/Gyn department, about the infant deaths. Lao Zi

told her that the mothers did not have family-planning permits, and

so, under the hospital rules, nurses would inject newborn babies

with alcohol to cause death. Cao claims that she was shocked to

learn that the hospital was killing children born alive to comply

with the population control policy.

According to Cao, a few months later, at a party in a friend’s

home, she encountered Suen Yut, a reporter for the Hong Kong

magazine, Cheng Ming Monthly. In the course of their

conversation, Suen Yut asked Cao if she had heard that infanticide

took place at Chinese hospitals. Cao told him what she had

witnessed at her hospital. Suen Yut asked Cao to write a detailed

account about the practice of infanticide and send it to him so that

he could write an article exposing the practice. While hesitant at

first because she was worried about losing her job, Cao eventually

agreed to send the information to Suen Yut after he assured her that

the article could be published anonymously.

Because she was concerned about using the mail for sending

such sensitive information, Cao first mailed Suen Yut a test letter,

containing nothing controversial. This letter reached him without

being intercepted. She then mailed a second letter detailing what

she had observed about the practice of infanticide. This letter was

sent by registered mail, which required her to give her name. The

letter, however, was intercepted by the Chinese authorities and

traced back to Cao.

As a result, Cao was arrested at her home in Nanning on

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April 25, 2000. She says that the authorities then gave her husband

a notice of detention, which she submitted in evidence at the

proceeding before the IJ. She claims that, after her arrest, she was

detained, interrogated, and beaten. The officers presented her with

the letter to Suen Yut and she eventually confessed that she had

written it. She testified that the interrogations included beatings

and electric shocks, and that she continues to have recurring pain

in her shoulder, neck, and fingers as a result. At her hearing before

the IJ, Cao testified that she thought her interrogators were public

security officials, although they were not always in uniform. In

her asylum application, Cao had said she was tortured by fellow

inmates, at the officer’s instigation, but she did not mention this

fact in her oral testimony.

Cao was not charged with any crime, but the security

officers told her that she could be charged with sedition and

sentenced to ten years imprisonment. Cao testified that she was

detained for three months and was conditionally released on July

25, 2000. She says that the officials released her so they could use

her to lure Suen Yut back to mainland China. On release, she had

to post bail and report to public security every week, but she

believes that she remained under surveillance. On July 26, 2000,

she received notice that her employment with the hospital had been

terminated.

After her release, Cao managed to send word to Suen Yut

through a friend who was visiting Hong Kong, warning him not to

contact her or to come to Nanning. The friend mailed the warning

letter from Hong Kong. Suen Yut apparently did not return to

mainland China and was not apprehended by Chinese officials.

On October 16, 2000, Cao made her last weekly report to

public security. That afternoon, she absconded from Nanning and

went to the Shanghai airport, where she bribed a relative of a friend

with “30,000” to provide her with an exit permit. 2 Though her

house had been searched after her arrest and again after her release,

the public security officers did not find her passport, which was

stored in a safe deposit box at a bank. Cao boarded a plane in

Shanghai, and arrived in the United States on a B-1 visa on

2 The record does not make clear whether the amount of the

bribe is measured in yuan or U.S. Dollars.

5

October 20, 2000. In filling out her temporary visa application,

Cao lied about the purpose of her visit to the United States, and

falsely stated that she had never been arrested, and that she was still

employed at the hospital. Cao admitted these falsehoods at her

hearing before the IJ.

Cao was authorized to remain in the United States only as

a temporary visitor. After she overstayed her visa, she was

interviewed by an asylum officer who referred her claim to an

Immigration Judge. On October 26, 2001, Cao was served with a

Notice to Appear charging her with removability pursuant to

Section 237(a)(1)(B) of the Immigration and Nationality Act. Cao

conceded removability and requested asylum, withholding of

removal, and protection under the Convention Against Torture.

In addition to testifying to the aforementioned facts, Cao

introduced documentary evidence to corroborate her story. She

submitted her passport and hospital identification card. She offered

a letter from her husband in China to Cao at her address in New

Jersey. The letter relates that after Cao escaped to the United

States, the public security officers came to Cao’s house in China to

search for her and “harassed” her husband and daughter,

confiscated letters, and threatened them with a gun. When the

officers found nothing, her husband said the public security officers

“request[ed] me to notify you to return back to China to surrender

yourself and accept the punishment by law. Otherwise we would

face more serious punishment . . . if you were arrested or if you

were sent back to China some day.”

In addition, she offered a document, which she claims was

given to her family upon her arrest by the Nanning City National

Security Bureau, which states that she was arrested and jailed for

“contribut[ing a] reactionary article for overseas publication.”

Further, Cao introduced her dismissal letter from the Gaungxi

College of Traditional Chinese Medicine, which denounced her as

being “poisoned by Capitalistic anarchism for [a] long time. She

has [an] intimate[] relationship with overseas anti-China forces and

post[ed a] contribution . . . outside of China to make vicious attack

against the national basic policy of China.”

When asked by the IJ how she received these documents,

Cao explained that she had asked her family to send evidence

supporting her asylum claim, and that her husband had a friend

mail his letter and the other documents from Guangzhou province.

6

Cao testified that she did not retain the envelope, but that the

package did not appear to have been opened when she received it

in the United States.

Finally, Cao provided a letter, dated July 31, 2001, which

she claims is from the reporter Suen Yut at the Cheng Ming

Monthly in Hong Kong. The letter states in the first paragraph that

[Cao] suffered arrest, imprisonment and torture

because she provided me the news clues, in

which she reviewed the fact[] that [the] Chinese

government kill[s] infants by medical means in

nationality autonomous regions for the purpose

of population control. She therefore escaped to

your country to avoid further persecution.

The letter goes on to discuss more generally human rights abuses

in China and other unrelated instances of China’s restriction of free

speech and other civil liberties.

The IJ issued a lengthy decision denying Cao’s asylum,

withholding of removal, and CAT claims on the ground that Cao

was not credible. The IJ justified her adverse credibility

determination on several purported inconsistencies and

implausibilities in Cao’s story. Because this credibility

determination goes to the heart of Cao’s claim on appeal, we will

discuss the substance of the IJ’s findings below.

Cao appealed to the Board of Immigration Appeals, which

affirmed the IJ without opinion pursuant to the streamlining

regulations, 8 C.F.R. § 1003.1(e)(4). She timely petitioned for

review.

II. JURISDICTION, SCOPE AND STANDARD OF REVIEW

This Court has jurisdiction to review final orders of removal

under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed the IJ

without opinion, this Court reviews the IJ’s opinion alone. See Dia

v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We

review the IJ’s opinion under the “substantial evidence” test, set

forth in 8 U.S.C. § 1252(b)(4)(B): “the administrative findings of

fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” See also Abdille v.

7

Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (agency’s finding

“must be upheld unless the evidence not only supports a contrary

conclusion, but compels it.”). Under this standard, “[T]he Court

will uphold the agency’s findings of fact to the extent that they are

‘supported by reasonable, substantial, and probative evidence on

the record considered as a whole.’” Gao v. Ashcroft, 299 F.3d 266,

272 (3d Cir. 2002) (citations omitted).

The credibility determination, like all IJ factual findings, is

subject to substantial evidence review. Abdulrahman v. Ashcroft,

330 F.3d 587, 597 (3d Cir. 2003). Adverse credibility

determinations may be based on “inconsistent statements,

contradictory evidence, and inherently improbable testimony.”

Dia, 353 F.3d at 249. While the standard of review is deferential,

this Court still must exercise meaningful review of the IJ’s

decision:

Adverse credibility findings are afforded substantial

deference so long as the findings are supported by

specific cogent reasons. The reasons must be

substantial and bear a legitimate nexus to the

finding.

Gao, 299 F.3d at 276 (citations omitted).

III. DISCUSSION

A. The Legal Standard

The Attorney General may grant asylum to an alien who is

a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42). See 8

U.S.C. § 1158(b)(1). To be eligible for asylum, an alien must show

that he or she:

is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of

[the country of such person’s nationality or in which

such a person last habitually resided] 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

8 U.S.C. § 1101(a)(42)(A). A showing of past persecution gives

rise to a rebuttable presumption of a well-founded fear of future

persecution. 8 C.F.R. § 1208.13(b)(1). While asylum constitutes

discretionary relief, an asylum applicant is entitled to withholding

of removal if he or she can satisfy the higher burden of

demonstrating that it is more likely than not that life or freedom

would be threatened because of a protected ground if he or she

were removed. 8 U.S.C. § 1231(b)(3)(A) (1999); Miah v. Ashcroft,

346 F.3d 434, 439 (3d Cir. 2003).

The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110

Stat. 3009 (Sept. 30, 1996), amended § 1101(a)(42) to specify,

inter alia, that individuals persecuted for resistance to a coercive

population control program “shall be deemed to have been

persecuted on account of political opinion,” and thus are eligible

for asylum.3 Cao has alleged that she was persecuted for exposing

and criticizing the practice of infanticide committed as part of

China’s population control policy. If credible, Cao’s allegations

would qualify her for asylum under the amended 8 U.S.C.

§ 1101(a)(42), as constituting “other resistance” to China’s

population control policy.

There is little precedent defining the scope of the population

control portion of Section 1101(a)(42)’s protections in cases where

the applicant does not claim he or she was personally subjected to

3Section 1101(a)(42) provides, in relevant part:

[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.

9

forced abortion or sterilization. Nevertheless, the statute plainly

specifies that a person who engages in “other resistance to a

coercive population control program, shall be deemed to have been

persecuted on account of political opinion.” It appears to us that

writing an article critical of population control practices and

exposing the practice of infanticide constitutes such “other

resistance.” At all events, even if we did not hold that the

population control provision specifically applied, it is clear that

Cao’s allegations of detention and physical abuse for exposing and

criticizing a government practice would be encompassed in the

more general asylum protections for those who have been

persecuted on account of political opinion. See Grava v. INS, 205

F.3d 1177, 1181 (9th Cir. 2000) (“[W]here the whistle blows

against corrupt government officials, it may constitute political

activity sufficient to form the basis of persecution on account of

political opinion.”); Marquez v. INS, 105 F.3d 374, 381 (7th Cir.

1997) (noting that “political agitation against state corruption”

could be considered grounds for asylum).

Therefore, as Cao’s allegations would be sufficient to make

out an asylum claim, Cao’s ability to seek relief hinges on the

credibility determination.

B. Review of the IJ’s Credibility Determination

1. Abortion and Infanticide

Cao testified that when she discovered infanticide was

occurring in her hospital she was “shocked” and grew “despondent”

to find that “they would kill [a] baby like that.” Cao said that she

had known that forced abortions, even late term abortions, had

occurred, but that she did not know until her Pediatrics department

was moved to the same floor as the Ob/Gyn ward that nurses were

killing live infants after delivery. The IJ, however, was troubled

that Cao would distinguish between infanticide and forced

abortions. The IJ stated:

[Cao] seemed to make [a] very distasteful distinction that

she believes that the saline abortions, in her opinion, were

less offensive than the infanticide that was being

performed on live born children. In other words, she seems

10

to make a distinction in her own peculiar mind that a saline

abortion that kills the fetus before it exits the birth canal is

somehow distinguishable from the infanticide or forced

death of the child born alive.

Later in her opinion, the IJ again expressed discomfort that

Cao would make such a distinction, “How somebody can . . .

mak[e] a distinction between saline abortions and others is really

disturbing.” The IJ’s view that the two procedures should be

deemed equally offensive or functionally equivalent led her to

discredit Cao’s professed “shock” at discovering that infanticide

occurred, because Cao had admitted that she was previously aware

that forced abortions had occurred at the hospital. Since the IJ

equated abortion and infanticide, she could not believe that Cao

would be shocked to discover infanticide was occurring since “this

concept of forced abortion is nothing new to anybody” (emphasis

added). The IJ continued by adding that “[Cao] eventually admitted

that she knew that all the hospitals in China were probably

performing forced abortions, despite the fact that she went into

sudden shock in 1999 just because one of the methods was different

from all the rest.”

Because the IJ herself did not distinguish between abortion

and infanticide, she seemed unwilling to believe that Cao would

make such a distinction. She thus discounted Cao’s testimony that

she was surprised to find that the hospital was not only practicing

forced abortions and other more widely known coercive population

control techniques, but was actually killing live born babies. The

IJ was similarly skeptical of Cao’s testimony that she only became

aware that infanticide was occurring after her department was put

on the Ob/Gyn floor. The IJ concluded that “[Cao’s] story that she

didn’t know what was going on is absurd.”

The conclusion that Cao’s testimony was not plausible was

once again driven by the IJ’s unwillingness to believe that Cao did

not equate abortion and infanticide. The IJ opined,

Working in the same place for 17 long years, the

respondent makes it seem as if she must have stayed in a

cube the entire time that she was there . . . [Cao] never

pieced together the fact that even though family planning

officials were in her hospital, and that even though she

11

knew that they were performing saline abortions on

women and probably other procedures to force abortions

on women who were earlier in their pregnancies, that she

never quite was able to put together how it was that other

women who where already in their ninth month of

pregnancy were having their pregnancies terminated.

(emphasis added). The IJ thus seems to have believed that since

Cao knew there were abortions occurring, she should have

ineluctably concluded that infanticide was also practiced. The IJ

asked, “[H]ow could the respondent not know that infanticide was

being practiced at that hospital where the family planning officials

were terminating pregnancies in the ninth month?”

By accepting this reasoning, the IJ disregarded the seemingly

logical explanation of why Cao did not discover the practice of

infanticide until 1999. Cao testified that for the prior fifteen years

she had worked in a different part of the hospital, which used a

different entrance from the Ob/Gyn department. Thus, Cao said

that she did not have contact with the Ob/Gyn patients prior to the

1999 relocation of her department. It was only when she was on

the same floor as the Obstetrics ward and noticed women crying in

the hall that she discovered infanticide was occurring. At all

events, there is nothing in the record to support the IJ’s statement

that a pediatrician would have to “have stayed in a cube” not to

know the specific practices of other medical departments located in

physically different portions of the hospital. This conclusion is

mere speculation and is unsupported by the evidence in the record.

The IJ’s beliefs regarding abortion and infanticide similarly

led her to dismiss the claim that Chinese authorities would have had

an interest in concealing the practice of infanticide by arresting

Cao, putting her under surveillance, and investigating her and the

reporter Suen Yut. The IJ wondered why China would want to

“cover up something that the world already knows about.” She

continued,

you would have to be an ostrich with your head in the

sand if you were going to try to believe that China

doesn’t know that the world knows that it has been

definitely involved in forced sterilization and abortions

and terminations of pregnancy. Why the respondent

12

believes that China would want to suppress information

that is already out and made public in the world is

something beyond logic.

There are three apparent fallacies in the IJ’s reasoning.

First, while China does not deny that it has family planning

regulations, the U.S. State Department’s country profile states that

the official Chinese government policy is that it “prohibits the use

of force to compel a person to submit to abortion or

sterilization . . . . [T]he [Chinese] Government does not condone

the practice of forced abortion and . . . the responsible officials are

disciplined and undergo retraining if it occurs.” 1998 China Profile

at 25. Even though there have been prior exposés of forced

abortions and sterilizations, and even though the United States has

recognized in the IIRIRA that such practices occur, the Chinese

government apparently maintains that forced abortion and coerced

sterilization are prohibited. A chronicle that local officials were

violating the government policy would reveal a breakdown in

Chinese central control---something an authoritarian government

like China’s would likely want to keep secret.

Second, even to the extent that the Chinese government

might acknowledge that instances of forced abortion or sterilization

nevertheless occur, infanticide is certainly not acknowledged by the

Chinese government as a potential abuse of the population control

policy, much less as an officially sponsored practice. Cao testified

that the nurses told her infanticides were being conducted pursuant

to official policy, yet infanticide is not even mentioned in the 1998

U.S. State Department report. Once again, the IJ’s belief that

forced abortion and infanticide are equivalent led her to the

untenable conclusion that China would have no interest in

suppressing stories that live born babies are killed after birth, when

China does not publicly acknowledge that infanticide occurs.

Finally, the IJ’s position that the Chinese government would

not want to suppress criticism of otherwise well-known or even

official policies is inconsistent with China’s propensity to deal

“harshly and arbitrarily” with “challenges to the CCP’s political

authority.” 1998 China Profile, at 3. According to the U.S. State

Department, the Chinese government continues to “use repressive

measures such as intimidation, administrative detention, imposition

of prison terms, house arrest, or exile to control tightly dissent” and

13

has displayed only “some limited tolerance of public expressions of

opposition to government policies.” Id. at 14. The IJ’s supposition

that China would not want to suppress an article that is critical of

any government policy runs contrary to the nature of an

authoritarian regime that brooks little criticism, particularly in the

international press.

It is clear that late term abortion and infanticide are

functionally different procedures. Neither party challenges the

proposition that forced abortion and infanticide are abhorrent

practices. The IJ’s adverse credibility determination was in large

part driven by her unwillingness to believe that Cao might make a

moral distinction between infanticide and forced abortion, that she

was motivated to take new action upon learning of the practice, or

that the Chinese government would persecute Cao for exposing and

criticizing the practice. In refusing to believe that Cao would make

that moral distinction, the IJ did not rely on “specific, cogent

reasons,” Dia, 353 F.3d at 250, but on “speculation, conjecture

[and] otherwise unsupported personal opinion.” Id. Accordingly,

the IJ’s conclusion that Cao did not distinguish between the

procedures lacks substantial evidence.

At oral argument, the government contended that the IJ’s

statements regarding infanticide and abortion were only incidental

to her adverse credibility determination. We disagree. Cao’s

professed belief that infanticide is more reprehensible than forced

abortion or sterilization was the motivating factor behind her

decision to send the article to Suen Yut, which led to the

persecution at the heart of Cao’s asylum claim.

In sum, because the IJ equated forced abortion and

infanticide, she declined to credit Cao’s testimony about her

attempt to expose the practice of infanticide and refused to believe

the Chinese government would act to suppress Cao’s article

publicizing the stories of infanticide at her hospital. The IJ’s

unwillingness to recognize that Cao and others might recognize

such a distinction was critical to her adverse credibility findings as

to nearly every aspect of Cao’s testimony and was unsupported by

substantial evidence in the record.

2. The Other Credibility Determinations

In addition to her credibility determinations relating to

14

infanticide and abortion, the IJ discredited other portions of Cao’s

testimony.

a) Interactions with Suen Yut

The IJ found an inconsistency between Cao’s written asylum

application and her testimony at the hearing regarding Cao’s

conversation with Suen Yut. In her testimony, Cao stated that Suen

Yut asked her questions about infanticide. In her written asylum

application, Cao said it was she who initiated the conversation and

that the reporter became “indignant” upon learning about the

practice of infanticide. The IJ seized on this small difference in the

Cao’s account, concluding that “from the very beginning, we’re not

talking the same story.”

After reviewing the record, we cannot find support for the

IJ’s conclusion that Cao changed her story in any material respect.

First, Cao’s written asylum application does not state who initiated

the conversation, but instead notes, “[Suen Yut and I] had a very

pleasant conversation. I told him the wrong[]-doing at our hospital

during the performance of the Birth Control Planning. He was

indignant after know it.” It is not clear from Cao’s written

application who brought up the specific topic of infanticide.

Moreover, contrary to the IJ’s conclusion, there is no

inconsistency in Cao’s description of Suen Yut’s reaction to her

story about infanticide. In her oral testimony, Cao claimed that

Suen Yut responded, “I cannot imagine in China today there is such

corruption and . . . infanticide.” In her written application, she

states that he grew “indignant.” The IJ seemed to believe it was not

possible for someone could grow “indignant” about a practice of

which he already had general knowledge stating, “the respondent

stated in her written asylum application that when the reporter

learned about [the practice of infanticide], he became indignant . .

. . Yet, in her testimony, the respondent is very clear that the

reporter knew that this was going on . . . and he wasn’t shocked and

indignant at all . . . .”

We disagree that the IJ has identified any material

inconsistency in Cao’s statement that Suen Yut became “indignant”

after discussing the practice of infanticide with Cao. First, there is

nothing about the term “indignant” which requires an element of

surprise. More importantly, the term “indignant” is a translation,

15

and thus this one choice of word should not be accorded

determinative weight. This purported inconsistency was made

much of by the IJ in holding against Cao; however, the IJ’s reliance

thereon is not supported by the record.

b) Letter from Suen Yut

The IJ did not believe that the purported letter from Suen

Yut to Cao was authentic. The first reason the IJ doubted the

authenticity of this letter was that the letter lacked details relevant

to Cao’s asylum claim and “goes on to have basically three

paragraphs of political diatribe irrelevant to this case.” The letter

did, however, state in the first paragraph that Cao had “suffered

arrest, imprisonment and torture because she provided me the news

clues, in which she reviewed the fact[] that [the] Chinese

government kill[s] infants by medical means in nationality

autonomous regions for the purpose of population control. She

therefore escaped to your country to avoid further persecution.” AR

434. The remainder of the Suen Yut’s letter contained a general

criticism of the Chinese government and its suppression of civil

rights.

The second reason the IJ discounted the letter was Suen

Yut’s apparent lack of journalistic style: “it is amazing that a

supposed reporter doesn’t understand that [he] should provide this

Court with supposed details and facts. In other words, frankly, the

letter doesn’t even sound like one that a reporter would have

written.” While criticizing the letter, on the one hand, for its

absence of relevant information, the IJ wondered how Suen Yut

knew of certain details regarding Cao’s asylum claim because

Cao’s original letter detailing the facts about infanticide was

intercepted by the Chinese authorities.

We find the IJ’s critique of this letter to be unfounded. First,

Suen Yut’s letter does not contain any information about the

contents of Cao’s intercepted letter. Instead, Suen Yut’s letter

states only that Cao provided Suen Yut with “news clues” about the

practice of infanticide, which could refer to the information

discussed at the party. Moreover, Cao claimed that she had talked

with Suen Yut and written to him after her release, but the IJ

disbelieved this explanation because Suen Yut did not say that Cao

had subsequently spoken with him in his letter.

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Second, we do not believe Cao should be burdened with

Suen Yet’s supposed lack of journalistic acumen or his failure to

know what facts are relevant to Cao’s asylum claim under

American law. Indeed, if the letter had displayed such

sophistication and had contained only relevant facts, we might have

reason to doubt its authenticity. While the IJ’s point about the lack

of authentication of the letter might justify giving this letter little

weight, there is nothing about the letter which should create an

adverse credibility determination against Cao.

c) Cao’s Escape from China

The IJ also did not find Cao’s story of her escape from China

to be credible. The IJ found it implausible that Cao was able to

retain her passport, leave her province while under surveillance, get

to the Shanghai airport, and bribe an official to obtain an exit

permit. The IJ’s incredulity, however, does not appear to be

justified in light of Cao’s clear explanation for each aspect of her

escape, which is not undermined by anything in the record.

Cao testified that even though the authorities searched her

home, they did not discover her passport, which she had stowed in

a safety deposit box at a bank. Further, while Cao claimed she was

under “surveillance” when she was released from detention, the

record shows that “surveillance” meant that she had to go to public

security every week to explain what she did that week, not that her

movements were regularly observed by the authorities. Thus, there

seems to be no implausibility about Cao’s story that she was able

to flee after her weekly interview.

The IJ could not believe that Cao could bribe a public

official for her exit visa, stating “[Cao] may want to pretend that

it’s all okay because she had to pay a bribe, but the bribe was paid

to a public official. Why would any public official dare, in China,

the most repressive government we can imagine[?]” This argument

is dispatched by our opinion in Dia, 353 F.3d at 252. There, the IJ

rejected the petitioner’s similar claim that a Guinean policeman

helped him cross the police border for a bribe of 300,000 Guinean

francs, which was equivalent to about 150 U.S. Dollars. The IJ

“question[ed] why this policeman would risk his reputation, not to

mention, his life, to assist the respondent, a wanted political

opponent, evade detection by the police . . . for . . .$150.” We

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rejected the IJ’s contention in Dia because it was

not explained, and appear[ed] to be pure conjecture. It is

not only not based on the record, but, in fact, it

contravenes key parts of it. The Country Report confirms

that Guinean police extort money from citizens at road

blocks and that corruption at road checkpoints is

widespread and “systematic.” In addition, figures

contained in the record show that $150 U.S. is nearly a

quarter of the per capita GDP in Guinea for 1999, a sum

likely tempting to a policeman in a poor country replete

with corruption within its police force.

Id.

As in Dia, the IJ’s disbelief that such bribery would occur is

controverted by the State Department’s country profile which

indicates that bribery is in fact widespread in China. See 1998

China Profile, at 22. Moreover, Cao testified the bribe was

“30,000,” although she did not specify if this figure was in yuan or

U.S. dollars. In either dollars or yuan, however, this bribe was

clearly a substantial sum. Given the evidence in the record that

bribery is in fact widespread among Chinese officials and the

potentially large amount of money involved, we find, as we did in

Dia, that the IJ’s opinion that a public official would not dare take

a bribe in China is pure conjecture.

d) Cao’s testimony regarding her detention

The IJ found that Cao had been inconsistent in relating who

had tortured and beaten her while she was in detention. In her

written application Cao had claimed she was “tortured by the

inmates” at “police[] instigation”; however, in her oral testimony

she said that the people questioning and interrogating her were “in

general” police officers, who “sometimes had uniforms, sometimes

not.”

We do not find a significant inconsistency between the two

statements. At the hearing, Cao was asked only who questioned her

and not who had tortured her—the statement that she was only

questioned by officers is not inconsistent with the statement that she

was tortured by inmates at the officer’s instigation.

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e) Vagueness of her asylum application

The IJ also expressed frustration that Cao’s written asylum

application was not supplemented when Cao obtained counsel. The

IJ says that the “application doesn’t seem to say anything” and was

“intentionally vague,” such that the application’s “tricky little

vaguely written manner and presentation” prevented her from

making credibility determinations or assessing the validity of the

claims. The IJ stated that Cao thereby left herself with an

“opportunity to not only add information to her case, but actually

change the entire claim, in terms of the basic presentation of facts.”

A review of the Cao’s written asylum application, however,

does not support the IJ’s scathing characterization. Rather, Cao’s

four-page, type-written statement lays out, in material terms, all of

the claims and allegations made in her oral testimony. She

describes in some detail how she discovered the infanticide

practices, how the infanticide procedure was done, her encounter

with Suen Yut at the party, the interception of the letter to Suen

Yut, her detention, and her escape to the United States. We

therefore disagree that the application would have allowed Cao to

“change her entire claim.”

One way in which the IJ claimed that Cao used strategically

open-ended language is that Cao’s written application states that

she was “arrested” after the letter to Suen Yut was intercepted but

her oral testimony specified that she was “arrested at home” and

provided additional details about the arrest incident. The IJ found

this “convenient because there is no way that the Court can

determine whether she is being consistent with the representations

that were supposed to have been written down.” Similarly, the IJ

found suspicious that Cao had written that she was interrogated

“several times” whereas she refined this statement in her oral

testimony to the more specific “six times.”

Cao testified, in response to questioning from the IJ, that she

did not include some of these details because she believed they

were “very specific points” encompassed by her more general story.

Whether or not this is so, we agree with Cao that the vagueness

cited by the IJ does not constitute a meaningful omission which

should lead the court to make an adverse credibility finding. See

Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996) (“[A]n

applicant’s testimony is not per se lacking in credibility simply

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because it includes details that are not set forth in the asylum

application.”). These details are essentially collateral points. The

increased specificity in her oral testimony as to certain aspects of

her story does not justify the allegation that Cao was somehow

intentionally vague in her application or that Cao would have been

able to change her story in any material respect.

f) Use of the Mail

Cao testified that she had mailed Suen Yut the letter

detailing her story about infanticide through registered mail only

after sending a test letter that arrived without detection. Cao

represented that she believed it was “prudent” to test the security of

the mail in this way and that, after the first letter went through, she

felt it was relatively safe to send the second letter with the

infanticide story.

The IJ did not believe that Cao would have mailed the letter

to Suen Yut knowing that there was a risk that it could be

intercepted. The IJ said:

In other words, if that first [letter] was a trial or a test of

whether her mail was going to be intercepted, then [Cao]

absolutely knew that it was reckless and absurd to put

something in the mail that was critical of the Chinese

government, which tolerates no criticism. This is one reason

why this Court just can’t believe this story. Why the

respondent would choose such a reckless route . . . is

inexcusable and illogical and it just lacks the ring of truth.

(emphasis added).

The IJ similarly found “ridiculous” Cao’s claim that she sent

a letter, upon her release from detention, warning Suen Yut not to

come to mainland China or to contact her. The IJ stated, “It is

unbelievable that the respondent would have . . . mailed a warning

to the same reporter after she had been supposedly put in jail for

three months for mailing something else to him earlier.” The IJ did

not seem to credit Cao’s testimony that she took further precautions

in warning Suen Yut by having a friend mail the warning letter to

Suen Yut from Hong Kong, not from mainland China.

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In the same vein, the IJ doubted the authenticity of a letter

allegedly sent from Cao’s husband in China to Cao in New Jersey

on November 11, 2001. In addition to informing Cao that public

security officials had come to their house in China looking for her,

the letter also criticized the Chinese government in other respects.

The IJ’s main reason for doubting the authenticity of the letter,

however, was that she did not believe that “the respondent’s own

husband . . . again put something in the mail [that was] highly

controversial, when the respondent herself testified that he is

supposedly being threatened and surveilled and having guns

pointed at him. I don’t think that her husband would have mailed

anything controversial in an envelope if this story is true.” Later

she wrote that “the Court just can’t believe that anybody with a lick

of sense, if this story were true,” would have mailed a critical letter

from China. The fact that Cao testified that her husband also

mailed her the arrest warrant and the hospital dismissal certificate

from China was also a factor in the IJ’s denial of the authenticity of

those documents.

While the IJ would surely not be compelled to credit Cao’s

testimony regarding her and her husband’s risks in using the mail,

in this case, we find the IJ’s adverse credibility determination to be

impugned by her rhetoric, which characterizes Cao’s and her

husband’s conduct as “ridiculous,” “reckless,” “absurd,”

“inexcusable,” and “without a lick of sense.” While perhaps taking

such risks is unusual, it is not implausible. Indeed, we can conceive

of many instances where an individual would be willing to risk him

or herself to protest a policy which he or she abhors or to protect a

friend or loved one. See Dia, 353 F.3d at 255 n.24 (citing a number

of reasons that a wife might urge her husband to flee the country

without her and concluding that the IJ should have considered these

“equally likely scenarios”). At all events, even deferring to the IJ’s

skepticism on this point, given the many errors already identified in

the IJ’s analysis, this alone would not be sufficient to support the

IJ’s overall adverse credibility finding.

C. Application of the Substantial Evidence Standard

Under the deferential “substantial evidence” standard we

require an IJ to provide a “sound basis---whether supplied by the

record evidence or by background knowledge---to support the IJ’s

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findings.” Dia, 353 F.3d at 251. In Gao we stated,

Adverse credibility determinations based on

speculation or conjecture, rather than on evidence in

the record, are reversible. Generally, minor

inconsistencies and minor admissions that reveal

nothing about an asylum applicant’s fear for his

safety are not an adequate basis for an adverse

credibility finding. The discrepancies must involve

the heart of the asylum claim.

299 F.3d at 272 (citations and internal quotation marks omitted).

Here, a “sound basis” is wholly lacking. The portions of the IJ’s

opinion relating to infanticide and abortion are a function of the IJ’s

personal notions, which led her to draw untenable conclusions

about Cao’s claim. With respect to the other purported

inconsistencies and implausibilities, each of these has proven to be

based, not on evidence in the record, but on the sort of speculation

or conjecture that Gao proscribes.

Finally, while we find IJ’s conclusions with regard to the

plausibility of Cao’s testimony to be unsupported by the record, we

reiterate that the IJ found Cao’s observable demeanor to be, “quite

perfect. She is the utter professional, very well spoken, and the

Court is convinced that she is a well educated medical practitioner

as she claims.” Having explained why the IJ’s credibility

judgments are untenable, the IJ’s finding that Cao’s demeanor

suggested truthfulness leaves no further bases on which to deny

Cao’s claim. See Dia, 353 F.3d at 252 (“Absent a reason such as

implausibility or inconsistency based in the record, or that

[petitioner’s] demeanor in some way led her to question his

veracity, the IJ should not have summarily dismissed [petitioner’s]

testimony . . . .”).

In sum, we conclude that the IJ’s adverse credibility finding

is not supported by substantial evidence in the record. We will

therefore grant Cao’s petition for review of the order of the BIA,

vacate the BIA’s order, and remand the matter to the BIA for

further proceedings.4

4 While we find that the IJ lacked substantial evidence to

make the adverse credibility determination, we note that we are not

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finding Cao to be credible nor determining Cao’s eligibility for

relief. This determination is for the BIA in the first instance on

remand. See INS v. Ventura, 537 U.S. 12, 16-17 (2002) (requiring

the court of appeals to remand the ultimate question of eligibility

for relief to the BIA); Dia, 353 F.3d at 260-61 (remanding to the

BIA to clarify or supplement the record without regard to the prior,

erroneous credibility determination).

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