Tingting Ye v. Jefferson Sessions, III ( 2017 )

Case: 15-60726 Document: 00514119750 Page: 1 Date Filed: 08/17/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-60726
Fifth Circuit
Summary Calendar
FILED
August 17, 2017
Lyle W. Cayce
TINGTING YE, Clerk
Petitioner,
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 124 761
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
Tingting Ye, a professing Christian and a native citizen of the People’s
Republic of China, petitions for review of a decision by the Board of
Immigration Appeals. The Board’s decision upheld the Immigration Judge’s
determination that Ye was not eligible for asylum, withholding of removal, or
relief under the Convention Against Torture. Because we conclude that the
Immigration Judge’s and Board’s decisions were not based on a full and fair
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-60726 Document: 00514119750 Page: 2 Date Filed: 08/17/2017
No. 15-60726
consideration of Ye’s case, we GRANT the petition for review, VACATE the
Board’s decision, and REMAND for further proceedings consistent with this
opinion.
I.
Ye testified that she grew up on an island in Fujian, China, where she
began attending Christian gatherings at the age of sixteen, and eventually
converted to Christianity. Three years after she began attending Christian
gatherings, Ye was present at a meeting that was raided by local police.
Though Ye escaped arrest, the police confiscated Bibles, destroyed a cross, and
arrested meeting attendees, including Ye’s aunt, and severely beat those who
were arrested.
Ye testified that, after the raid, police came looking for her at her home.
Ye went into hiding at the home of her uncle, who lived in another village. A
few days later, her mother told her that Ye’s photograph had been posted on
the village bulletin board, together with pictures of other church members and
a notice that those pictured should turn themselves in to the authorities for
their crimes. Ye believed that if she stayed on her island she would eventually
be jailed and beaten like the other Christians whom the authorities
apprehended. On two occasions, Ye went to a government office on the
mainland to obtain a passport, but her application was confiscated and she was
told that she could not get a passport because she was not allowed to leave her
island. Ye concluded from this and from the notice posted in her village that
she had been blacklisted for her participation in unauthorized Christian
meetings.
Because local authorities were continuing to search for Ye and she could
not obtain a passport under her own name, Ye testified that her extended
family paid smugglers to obtain a passport for her under a false name, and she
2
Case: 15-60726 Document: 00514119750 Page: 3 Date Filed: 08/17/2017
No. 15-60726
used the passport to flee to the United States. Ye joined a Christian church
and was baptized. She testified that she now attends Sunday worship, Sunday
school, and a Friday Bible study each week.
Ye filed an application for asylum, withholding of removal, or relief
under the Convention Against Torture (CAT), voluntarily disclosing that she
fled China on a false passport. A few months later, she was charged with
removability on the ground that she was admitted to the United States as a
student but had not attended school. Ye admitted the allegations and repeated
her request for relief on the grounds of religious persecution.
In support of her application for relief, Ye sought to corroborate portions
of the testimony summarized above. The Immigration Judge admitted letters
by two Christians from Ye’s village who described how the police raided a
Christian meeting on the date Ye specified, confiscated Bibles, broke a cross,
arrested and beat Christians, and publicly posted photos identifying
Christians. He also admitted a letter from Ye’s pastor in the United States,
who stated that Ye was active in his church and was planning to be baptized
and to become a church member. The Immigration Judge excluded five
identifying documents that contained Ye’s photo and name on the ground that
the English versions of the documents were not accompanied by certifications
that the translator was proficient in both languages. Finally, the Immigration
Judge heard testimony by Ye’s cousin, Ms. Chen, that Chen’s mother had told
her of the events Ye described; that Chen’s mother-in-law, who lives on Ye’s
island, had shared similar stories of persecution by local authorities; that when
Ye came to America she moved in with Chen, talked with her about
Christianity, and asked her for help finding a church; that Chen and Ye were
baptized together; and that Chen and Ye attended church meetings every
Friday and Sunday.
3
Case: 15-60726 Document: 00514119750 Page: 4 Date Filed: 08/17/2017
No. 15-60726
The Immigration Judge found that Ye had not demonstrated her
eligibility for asylum, withholding of removal, or CAT relief. He acknowledged
that the events Ye described “would be enough to establish a case of past
persecution.” However, the Immigration Judge made a general determination
that “the respondent is not a credible witness.” The Immigration Judge went
on to explain two grounds for denying Ye’s application. First, “[s]ince I have
found the respondent to be an incredible witness, I will not accept her
testimony as to her true identity.” Because the record did not contain other
evidence corroborating her identity, the Immigration Judge explained, Ye had
failed to establish who she was, as required by Matter of O-D-, 21 I & N Dec.
1079, 1082 (BIA 1998). See also Afatika v. Holder, 312 F. App’x 626, 627 (5th
Cir. 2009). Second, “[b]ecause the respondent is not a credible witness, I find
that the events that she described did not actually occur and therefore there is
no basis to grant asylum [or other relief].”
Ye appealed to the Board of Immigration Appeals, challenging the
Immigration Judge’s adverse credibility determination in several ways,
including on the grounds that it was not supported by the record, ignored
corroborating evidence, and characterized her testimony as implausible and
inconsistent without adequate reason. The Board dismissed her appeal in a
short order that adopted the Immigration Judge’s adverse credibility
determination. The Board upheld the credibility determination based on “the
problems within the respondent’s testimony and between her testimony and
supporting documents, as identified by the Immigration Judge.” In light of this
adverse credibility determination, the Board held that it was not unreasonable
for the Immigration Judge to reject Ye’s petition based on her failure to
corroborate the posting of her photograph and summons for arrest with a
statement from her mother.
4
Case: 15-60726 Document: 00514119750 Page: 5 Date Filed: 08/17/2017
No. 15-60726
Ye now petitions for review of the Board’s decision and challenges its
adoption of the Immigration Judge’s adverse credibility determination.
II.
Because the Board’s decision adopts the Immigration Judge’s credibility
analysis, we review the Immigration Judge’s decision as well as the Board’s.
See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). Although “[t]he
testimony of the applicant may be sufficient to sustain the applicant’s burden
without corroboration,” this is only the case “if the applicant satisfies the trier
of fact that the applicant’s testimony is credible . . . .” 8 U.S.C.
§ 1158(b)(1)(B)(ii); see also 8 C.F.R. § 1208.16(c)(2) (“The testimony of the
applicant, if credible, may be sufficient to sustain the burden of proof without
corroboration.”). It is the factfinder’s duty to make determinations based on
the credibility of witnesses, and we cannot substitute our judgment for that of
the Board or Immigration Judge with respect to factual findings based on
credibility determinations. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
However, we may not accept an adverse credibility determination
“blindly.” Kabamba v. Gonzales, 162 F. App’x 337, 339 (5th Cir. 2006). We
review for “substantial evidence” and must assure ourselves that the agency
decision was based on a “full and fair consideration of all circumstances” and
“reflect[s] meaningful consideration of the relevant substantial evidence
supporting the alien’s claims.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005); Abdel-Masieh v. United States INS, 73 F.3d 579, 585 (5th Cir. 1996). An
adverse credibility determination will not be upheld if it is “based on pure
speculation or conjecture.” Wang, 569 F.3d at 537. Rather, it “must be
supported by specific and cogent reasons derived from the record.” Zhang, 432
F.3d at 344.
5
Case: 15-60726 Document: 00514119750 Page: 6 Date Filed: 08/17/2017
No. 15-60726
III.
The Immigration Judge concluded that Ye was not credible and that Ye
had not provided sufficient corroborating evidence to support her claims. We
do not attempt to exhaustively address the Immigration Judge’s litany of
concerns, but provide the following examples to show that the Immigration
Judge relied on speculative and conjectural reasoning and failed to consider all
relevant evidence. Given this, we cannot conclude that the Immigration
Judge’s credibility determination gave “full and fair consideration” of Ye’s
claim. See Abdel-Masieh, 73 F.3d at 585.
The Immigration Judge relied on a series of speculative conclusions
regarding the veracity of Ye’s faith. For example, the Immigration Judge found
that “it would not have been possible” for Ye’s pastor to “have made a well-
informed decision” about whether Ye “was an actual practitioner.” Similarly,
the Immigration Judge sought to undercut Ye’s religious commitment by
criticizing the level of detail she provided regarding her baptism. According to
the Immigration Judge, Ye “provided no details about either how the baptism
went, what the concepts behind it were, or how she came to the decision to be
baptized,” and so “th[e] significant conversion that [Ye] indicates that she
underwent is not correlated with the level of detail that one would have
expected for a person who has gone through such a significant transformation
of their personal life.” And finally, the Immigration Judge found it implausible
that Ye would have decided to be baptized at a church she had only been
attending for six weeks. According to the Immigration Judge, because baptism
is a “significant event for anybody,” it was implausible that Ye would “have
reached this decision in this amount of time” because this “is not the timeframe
that is normally taken for such a significant event in somebody’s life.”
6
Case: 15-60726 Document: 00514119750 Page: 7 Date Filed: 08/17/2017
No. 15-60726
These judgments are wholly unsupported by evidence, and involve
speculation wholly outside the proper purview of the Immigration Judge. The
Immigration Judge offered no concrete basis to support its conclusion that Ye’s
pastor was incapable of assessing the genuineness of Ye’s faith, nor did the
Immigration Judge provide any reliable basis for concluding that Ye’s limited
description of baptism and her decision to be baptized somehow fails to
correlate with the significance of her conversion. Not that it is proper for the
Immigration Judge to assess such a “correlation” in any event. Likewise, the
Immigration Judge relied on nothing more than raw conjecture in concluding
that the timeframe within which Ye decided to be baptized at her current
church does not fit the “normal[ ]” time allotted for significant life events. Not
one of these speculative conclusions was based on concrete evidence, and all of
them involve inquiries into matters emphatically outside the competency of a
government administrator. See Employment Div., Dep’t of Human Res. of
Oregon v. Smith, 494 U.S. 872, 887 (1990) (“Repeatedly and in many different
contexts, we have warned that courts must not presume to determine the place
of a particular belief in a religion or the plausibility of a religious claim.”).
Other aspects of the Immigration Judge’s opinion are also concerning.
For example, the Immigration Judge cast doubt on Ye’s claim that a Christian
gathering she was attending was raided by the Chinese police, but the
Immigration Judge failed to consider the letters submitted from two Chinese
Christians who corroborated Ye’s account of the raid. See Adjonke v. Mukasey,
255 F. App’x 914, 915–16 (5th Cir. 2007) (vacating and remanding where BIA
failed to take account of letters that would have supported applicant’s
testimony); Liu Xiu Fang v. Holder, 465 F. App’x 338, 342 (5th Cir. 2012)
(vacating BIA determination for failure to discuss relevant evidence).
Similarly, the Immigration Judge concluded that Ye’s testimony regarding the
7
Case: 15-60726 Document: 00514119750 Page: 8 Date Filed: 08/17/2017
No. 15-60726
timing of the alleged raid was “highly suspicious” because the alleged raid
“immediately followed [Ye’s] graduation from high school.” According to the
Immigration Judge, this close temporal proximity between her graduation—
“right at the time when she is trying to decide what to do with her life”—and
the alleged raid strongly suggested that Ye fabricated the raid in order to gain
passage to the United States for economic reasons. This conclusion, however,
is entirely speculative. See, e.g., Cai Gui Chen v. Filip, 308 F. App’x 785, 787
(5th Cir. 2009) (“The IJ’s suspicion that the Chen family came to the United
States for economic reasons only was not based on record evidence and thus
did not constitute substantial evidence.”). Finally, the Immigration Judge also
thought it implausible that Ye had been placed on a “blacklist” due to her
involvement in a Christian church, given that the passport authorities did not
detain her when she went to obtain a passport. But we have previously held
that “[a]pparent inconsistencies in treatment by various government officials
provide an insufficient basis to deny asylum where a person has suffered
persecution at the hands of some such officials.” 1 Kabamba, 162 F. App’x at
342.
In assessing an adverse credibility determination, we are mindful that
our role is not to substitute our judgment for that of the Board or Immigration
Judge, Chun, 40 F.3d at 78, but neither will we give our stamp of approval to
credibility determinations “based on pure speculation or conjecture.” Wang,
569 F.3d at 537. We must instead ensure that adverse credibility
determinations are grounded in a “full and fair consideration of all
1The Immigration Judge also criticized Ye for providing “a remarkably little amount
of detail” about house gatherings of underground Christians, faulting her for not identifying
other participants, disclosing what they discussed at their meetings, what materials they
used, where they met, and how far their houses were from one another. In fact, Ye did provide
information on these subjects. And in any event, we fail to see the relevance of a failure to
volunteer the contents of underground church discussions.
8
Case: 15-60726 Document: 00514119750 Page: 9 Date Filed: 08/17/2017
No. 15-60726
circumstances” and “reflect meaningful consideration of the relevant
substantial evidence supporting the alien’s claims.” See Abdel-Masieh, 73 F.3d
at 585.
Here, the Immigration Judge—and the Board in affirming the
Immigration Judge’s ruling—based their credibility determinations on
unfounded conclusions regarding whether Ye’s pastor could assess the
genuineness of her faith, and whether Ye’s decision to be baptized and her level
of understanding of her faith were correctly “correlated” to the Immigration
Judge’s view of the impact her conversion should have had in her life. Such
matters are well outside the federal government’s competency, and these
conclusions were not “supported by specific and cogent reasons derived from
the record.” Zhang, 432 F.3d at 344. Likewise, the Immigration Judge’s failure
to consider the corroborating letters from Christians in Ye’s home province and
its reliance on a belief that Ye fabricated a story of persecution to fulfill her
economic desires do not reflect a “full and fair consideration of all
circumstances” and a “meaningful consideration of the relevant substantial
evidence supporting the alien’s claims.” See Abdel-Masieh, 73 F.3d at 585.
In summary, the decisions of the Immigration Judge and the Board
failed to reflect meaningful consideration of substantial evidence that
corroborated Ye’s testimony and included numerous findings of fact that are
not supported by specific, cogent reasons derived from the record. Given the
flaws underlying the Immigration Judge’s credibility determination, and
because we cannot determine the extent to which these errors influenced the
Immigration Judge’s determinations as to Ye’s credibility and, relatedly, her
identity, 2 the Immigration Judge’s and Board’s rulings cannot stand. See, e.g.,
2 Ye authenticated her high school diploma, her junior high school diploma, her
elementary school diploma, her residential ID card, and her student ID at the hearing. The
Immigration Judge explicitly stated in his decision that he was not excluding these
9
Case: 15-60726 Document: 00514119750 Page: 10 Date Filed: 08/17/2017
No. 15-60726
Adjonke, 255 F. App’x at 915–16 (vacating and remanding where “not
convinced that [petitioner] received full and fair consideration of the
circumstances giving rise to his claims”).
IV.
Accordingly, we GRANT the petition for review, VACATE the Board’s
decision, and REMAND for reconsideration consistent with this opinion.
documents based on a failure of authentication. Given that the documents were authentic
diplomas and ID cards, the only information that had to be culled from them in order to verify
Ye’s identity was her photo and her name. The photo obviously did not need to be translated,
and the record showed what Ye’s name looked like in Chinese so that the Immigration Judge
could have recognized it without translation. Moreover, the Immigration Judge could easily
have directed the court translator to translate the documents at the hearing so that he could
give meaningful consideration to the corroborating evidence Ye attempted to provide.
10