Chun He Li v. John Ashcroft, Attorney General

NOONAN, Circuit Judge,

dissenting:

Here is the heart of Li’s asylum claim based on probable future persecution: A citizen of China, Li violated the law of China by fathering three children. A vio *965 lator of the law of China, he has every reason to fear persecution for his violations. This fear of probable future persecution entitles him to asylum in this country. Nothing in the IJ’s decision offers reason to impugn the testimony supporting the claim. Nothing in the opinion of this court offers reason to impugn the claim. Indeed, the IJ found credible Li’s testimony that he had three sons. Nonetheless, the IJ denied Li any consideration on the merits of his probable future persecution claim.

Making matters worse, the IJ discredited Li’s presentation regarding past persecution based on the sterilization of Li’s wife by relying on forbidden grounds for an adverse credibility ruling. To affirm, the court ignores two of our central rules regarding adverse credibility findings: the rule that adverse credibility findings cannot be justified by speculation or conjecture, Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.2004), and the rule that “[a]n adverse credibility finding is not based on substantial evidence when the BIA or the IJ did not comment on an applicant’s explanation, nor suggest any reason that it found his explanation not credible.” Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir.2004) (internal quotation marks and brackets omitted).

Three truths are not challenged by this court or by the opinion of the IJ:

1. China forbids married couples to procreate more than one child and punishes those who do.

2. The Congress of the United States has determined that such a governmental policy, deeply offensive as it is to human dignity, is a form of persecution from which the United States will provide asylum.

3. Chun He Li fathered three sons in China. They are now aged 19, 17 and 15.

On these undoubted facts and under controlling law, Li and his wife face the probability of persecution in China. Nothing in the discrepancies alleged by the INS alters this probability.

Inconsistencies must “go to the heart” of the asylum claim to justify an adverse credibility finding. Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir.2002) (internal quotation marks omitted). Very recently, we had to reverse a decision of the BIA denying an applicant whose wife was forced by Chinese authorities to undergo two abortions because her pregnancies violated the government’s one-child policy. The denial was based on the IJ’s adverse credibility determination. That determination was based on the IJ’s speculation. Ge v. Ashcroft, 367 F.3d at 1124 . The instant case is scarcely stronger for the INS. It is all too reminiscent of yet another case in which we were compelled to reverse the BIA because the IJ “picked at minor memory laps and inconsistencies on issues at the periphery.” Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). We reminded the BIA:

Although we review an adverse credibility finding under the deferential “substantial evidence” standard, He v. Ashcroft, 328 F.3d 593, 595 (9th Cir.2003); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003), such a finding “must be supported by a specific, cogent reason.” de Lean-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997) (quoting Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir.1992)). The inconsistencies on which the IJ relied are not “significant and relevant” and do not support an adverse credibility determination. Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.2000).

Id. at 810-11. No significant and relevant inconsistency undermines Li’s presentation of his paternity and his consequent expo *966 sure to reprisal by the draconian anti-population policy of China.

The sole hearing at which Li had the opportunity to testify before the IJ was conducted on'August 26, 1999. At the conclusion of the testimony, the IJ dictated her decision. She then reviewed the written transcript of her decision, conscientiously noting that she did so “without benefit of Record of Proceedings.” She failed to relate her reasons to his principal claim. What is worse, her reasons show her to be making up a case against an applicant she disfavors:

1. Li “did not appear interested in providing complete answers to the questions posed about his refugee claim. For example, applicant stated that he did not tell his current attorney that he is a Catholic, when she was filling out page 1 of the form 1-589, because he didn’t think it was necessary to tell her about it.” As the court now notes, the information was indeed irrelevant. Why does the IJ pounce on his reticence?

2. The IJ impugned Li’s credibility because he did not testify that he had been fined for marrying too young, and he did not testify that his wife had been required to submit to gynecological exams after her IUD was inserted soon after the birth of their second child. As the court now notes, these matters had “little to do” with the forced sterilization. And these matters also have little to do with the probability that Li will be persecuted for being a father of three. Even more notable is that the very same IJ, ruling against another asylum petitioner from the same province (Fujian) seeking relief from China’s population policy, went out of her way to note that the State Department had reported that China’s policy was not consistently enforced in every aspect. See Wang v. Ashcroft, 102 Fed.Appx. 620 , 2004 WL 1435190 (9th Cir. June 24, 2004) (reversing IJ’s determination); see also United States Department of State, China: Country Conditions and Comments on Asylum Applications 39 (1995). There was no reason for the IJ to expect enforcement in every aspect here.

3. In his airport interview and in his 1992 and 1993 applications Li did not mention his wife’s forced sterilization. These omissions were treated by the IJ as undermining Li’s case. But the court now notes: “Li had less reason to mention his wife’s sterilization in 1992 and 1993 because, at the time, forced sterilization did not constitute persecution as a matter of law;.” Not only did Li have less reason to mention the sterilization, he had no reason at all to mention it. What benefit would he have gained by citing a fact that at the time had no bearing on his asylum application? Was he supposed to have anticipated Congress’s later action in changing the law and the BIA’s extension of the law to cover sterilization of a spouse? Was his credibility to be doubted because he did not recite every indignity and every misery put upon him and his wife for procreating three children?

4. The IJ also found Li’s credibility subverted by his testimony that he remained in China seven years after the forced sterilization of his wife. The court now dismisses the IJ’s inference. Li was in hiding; he was not openly present in China.

5. The IJ gave Li’s credibility another knock because the “fine amount noted in the earlier asylum applications is greatly inconsistent with the fine amount applicant testified to during the hearing, and provided in his 1999 application.” The precise amount of the fines is not a material factor in Li’s application. That Li was fined — ■ and fined amounts that were substantial for a Chinese peasant — is the salient point in both his application and in his testimo *967 ny. Cf. Singh v. Ashcroft, 301 F.3d 1109, 1113 (9th Cir.2002) (holding that a petitioner’s confusion over the location of a political rally he said he attended could not support an adverse credibility finding because the material point was that the petitioner attended a political rally, not the rally’s location). To hang Li for not tailoring his testimony to an application made seven years earlier is to snap at a gnat. By binding circuit authority, we must disregard such irrelevancy. Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir.2003); Singh, 301 F.3d at 1111, 1113 . There is no contradiction going to the heart of his asylum claim.

6. The IJ doubted that Li’s wife had been involuntarily sterilized in 1984. First, the IJ found that the x-rays were “taken in 1998, some 14 years after the alleged operation.” But, at the most, the IJ’s skepticism here went to the corroborating evidence not to Li’s own testimony. Second, the IJ declared that the sterilization “could have been voluntary, since she had three sons, whom they could barely support, in addition to supporting applicant’s mother.” But the IJ’s reasoning at this point is sheer speculation. She had no basis for doubting Li, and so she shifts her ground and finds it “difficult to imagine” why Li didn’t mention the surgery in 1992 and 1993 when forced sterilization was not a ground for asylum. The IJ made a guess and faulted Li because of it.

In sum, based on misinterpreting Li’s candid testimony about hiding in China; exaggerating the significance of his memory of the fines; chastising him for not embroidering what he suffered as officials enforced the official population policy; guessing that his wife’s sterilization was voluntary; and marveling at his non-assertions of a basis for asylum at times when it could not have been legally effective, the IJ found Li incredible on the issue of past persecution. In so finding, the IJ did not conduct herself as an impartial judge but rather as a prosecutor anxious to pick holes in the petitioner’s story. No wonder, the court has not been persuaded by what the IJ focuses on.

But there is more. The IJ attached a sinister significance to the fact that Li’s wife moved back to their home province and occasionally visited their hometown without being arrested for nonpayment of the fine. The court states that it was reasonable to deem the move and visits inconsistent with a family in hiding. But any inconsistency depends on speculation as to how a member of a family in hiding should behave. This conjectural model member of a fearful family must eschew all contact with her home village and scrupulously avoid living within the boundaries of her home province. And if the bonds of home sometimes draws her to her home village despite the risk, or if she resides within the forbidden boundaries, albeit laying low, then she has broken the rules for the IJ’s speculative model of a family in hiding. Such speculation by the IJ or this court violates our precedent. Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.2004).

In short, the IJ cobbled together, from her memory of the recent testimony, bits and pieces of Li’s evidence and, with a persistence and an arbitrariness that do not bespeak dispassion, found Li not to be credible on the basis provided by her own speculation or on the basis of details entirely peripheral to Li’s case.

The court now places most of its upholding of the IJ’s credibility determination on Li’s airport interview in which he denied that he had been persecuted in China. The court declares: “The IJ could reasonably conclude that there is a valid discrepancy between the airport interview and his 1999 testimony.” But Li clearly and cogently explained why he spoke as he did at *968 the airport: “When I first came to the United States, the INS inspector asked me if the Chinese government ever persecuted me, and I always said no, at that time, because I was afraid the U.S. government would notify the Chinese government, and then, I will be sent back to China. I was very afraid that the INS would send me back to China, then I would definitely be jailed.”

The court now says that “the IJ did address Li’s explanation.” Curiously, the court, although invited by this dissent to do so, is not able to cite to any page of the administrative record for the statement. In fact, the IJ makes absolutely no comment on Li’s explanation. For the IJ and the court to attach any weight to Li’s denial of persecution without consideration of his explanation is a clear violation of Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir.2004).

We cannot operate as a court if a panel feels free to disregard a precedent that it finds inconvenient. In the light of its disregard of binding authority, the court’s effort to rehabilitate the airport interview has been expended in vain. And nothing in the airport interview rebuts Li’s primary claim that he will face persecution as the father of three sons. What impartial fact finder would not be compelled to at least consider the merits of Li’s claim that he will, more likely than not, be persecuted for having three sons if our pro-family values government returns him to his country of origin?

For the reasons stated, I respectfully and regretfully dissent.