Huang, Xiu Ping v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4009
XIU PING HUANG,
Petitioner,
v.
ALBERTO GONZALES, Attorney General
of the United States,1
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A77-322-383
____________
ARGUED DECEMBER 15, 2004—DECIDED APRIL 14, 2005
____________
Before KANNE, WOOD, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Chinese citizen Xiu Ping Huang
applied for asylum, claiming that she would be persecuted
because of her membership in an illegal Catholic church if
she returned to China. An immigration judge denied
Huang’s application after a hearing because he found that
she was not credible and had failed to corroborate her tes-
1
We substitute Attorney General Alberto Gonzales for his pre-
decessor, John Ashcroft.
2 No. 03-4009
timony, even though the judge acknowledged that members
of underground Catholic churches in China face widespread
persecution. During the hearing, however, the immigration
judge repeatedly interrupted the examination conducted by
Huang’s attorney and questioned Huang extensively about
her Catholic beliefs and practices. In discrediting Huang,
the immigration judge relied heavily on what he thought
were unsatisfactory answers to his questions—all of which
were based on information outside of the record. Our con-
cerns about the judge’s conduct during the hearing lead us
to conclude that his decision is not supported by substantial
evidence and, accordingly, we grant Huang’s petition for
review.
I. BACKGROUND
Huang arrived in September 2000 at Los Angeles Interna-
tional Airport without proper documents to enter the
United States. She was sixteen years old at the time.
Huang was interviewed at the airport and said that she had
come to the United States because “I want to live here and
hopefully, find a job.” Officials refused her entry into the
country and detained her for five months. At a hearing
before an immigration judge in San Francisco shortly after
her arrival, Huang said that she intended to seek asylum
because she feared she would be persecuted on account of
her religion if she returned to China. Huang then retained
an attorney and applied for asylum. She subsequently moved
to the Chicago area and was granted a change of venue. A
new immigration judge denied her application after a hear-
ing in July 2002. The Board of Immigration Appeals (BIA)
affirmed without an opinion.
At the hearing, Huang testified that in 1997 she and her
parents became active in an underground Catholic church
in Changle, a city in China’s Fujian province. She explained
that the Chinese government allows Catholics to worship
No. 03-4009 3
only at a single officially sanctioned church, which denounces
the authority of the Pope, so many Chinese Catholics
instead worship in illegal underground churches. Huang’s
church had about 15 worshippers, met in a neighbor’s home,
and was led by her father and another member of the con-
gregation. The church held mass when it could, but its priest
was not always available. In addition to mass, the church
members met for scripture readings and Bible study.
Huang testified that officials at her junior high school in
December 1998 discovered a rosary in her purse. Once the
school learned of her Catholic beliefs, she said teachers and
administrators gave her demerits, lowered her grades, and
refused to let her take an entrance exam to attend senior
high school. She testified that she was permitted to finish
the ninth grade, but was refused a diploma for finishing
junior high school and was not able to attend senior high
school. Huang stayed at home for the next ten months, and
during this time she read her Bible and attended church.
Government officials later learned of Huang’s underground
church, and in July 2000 police raided her home. Huang was
not home at the time but she testified that several people
were arrested and that she thereafter went into hiding. She
also testified that her father was later arrested and that her
mother relocated several times to evade the authorities.
During the hearing, the immigration judge repeatedly in-
terrupted Huang’s direct examination and challenged her
about Catholic doctrine and rituals. The judge’s questioning
was extensive, taking up approximately half the pages in
the hearing’s transcript. The information about Catholicism
upon which the judge relied nowhere appears in the record,
and in some instances he refused to allow Huang to explain
what he believed were discrepancies or inaccuracies in her
answers. Huang’s attorney tried repeatedly to object, but the
judge told counsel not to interrupt his questioning.
The immigration judge found that Chinese authorities
“ ‘have tightened their grip’ over the official Catholic Church
4 No. 03-4009
and sought to eliminate the underground Catholic Church
which has not been [sic] to government control.” But he
nevertheless denied Huang’s application because he found
her not to be credible for several reasons: (1) her answers
concerning her knowledge of Roman Catholicism were “dis-
assembling” and contained what he believed was “clearly
inaccurate” information; (2) she was unable to identify the
whereabouts of the priest of her underground church in
China; (3) she was unable to describe the Catholic church
that she claimed to attend in Chicago and did not attend
church regularly for reasons the judge found ranged “from
the transparent to almost the ridiculous”; and (4) she men-
tioned nothing about religious persecution in her initial
interview at the airport. In addition to finding Huang not
credible, the immigration judge found that she failed to
corroborate her testimony with even “the most common-
sensical support” of her Catholic beliefs, such as a letter
from her mother or her priest.
II. ANALYSIS
Huang challenges the immigration judge’s credibility
finding, arguing that it is unsupported by the record and
does not provide substantial evidence for the decision deny-
ing her asylum. Where, as here, the BIA summarily affirms,
we review the immigration judge’s opinion as if it were that
of the BIA. Ghebremedhin v. Ashcroft, 385 F.3d 1116, 1119
(7th Cir. 2004). Our review is limited to determining if the
immigration judge’s decision is supported by substantial
evidence. Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.
2003). When a decision is based on an adverse credibility
finding, we will defer to the immigration judge provided that
the credibility finding is supported by “specific, cogent
reasons” that “bear a legitimate nexus to the finding.” Capric
v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir. 2004) (internal
citation and quotation omitted).
No. 03-4009 5
Huang first argues that she was “hardly given an oppor-
tunity to present a case” because the immigration judge
took over her direct examination, turning it at times into
“an outright interrogation.” Huang does not argue that the
immigration judge’s conduct violated her right to due pro-
cess, see Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir. 2003)
(per curiam) (immigration judge “took over the questioning”
from applicant’s attorney and excluded “complete chunks”
of testimony); Podio v. INS, 153 F.3d 506, 509-10 (7th Cir.
1998) (judge frequently interrupted testimony and refused
to allow a supporting witness to testify), but instead claims
that it influenced his credibility finding. In general, an im-
migration judge may question an asylum applicant provided
that his conduct does not demonstrate impatience, hostility,
or a predisposition against the applicant’s claim. Hasanaj
v. Ashcroft, 385 F.3d 780, 783-84 (7th Cir. 2004). But here
the immigration judge did more than ask Huang a few
questions; he actively interjected himself into the proceed-
ings, far exceeded his role of developing the record, and at
times assumed an inquisitorial role. See id.; 8 C.F.R.
§§ 208.9(b), 1208.9(b) (immigration judge shall conduct hear-
ing “in a nonadversarial manner”). More troubling is the
judge’s repeatedly questioning based on his own assumptions
about Catholicism rather than any information contained
in the record. We are concerned that the judge’s questioning
of Huang’s religious observance tainted his analysis of her
credibility, and with that in mind we turn to Huang’s specific
arguments regarding the grounds given by the immigration
judge for his adverse credibility finding.
Huang argues that the immigration judge’s first ground
for his credibility finding—Huang’s purported lack of know-
ledge about Catholicism—is improperly based solely on the
judge’s own personal beliefs about the religion. Indeed, the
Catholic doctrine and practices about which the judge
assumed Huang should have been familiar are described
nowhere in the record. Furthermore, the judge based his
6 No. 03-4009
credibility finding partly on mischaracterizations of Huang’s
testimony and partly on perceived inaccuracies in her tes-
timony that he did not allow her to explain. For example,
the immigration judge characterized Huang as testifying
that there exists multiple types of baptism in Catholicism,
but then dismissed this testimony as “clearly inaccurate”
because “there are not.” But Huang never testified that there
are multiple types of baptism; in response to repeated ques-
tions from the immigration judge, she stated only that the
word “baptize” can be translated using two different Chinese
terms. Later in the hearing, Huang’s attorney sought to ask
her about the different terms and about the specific ceremo-
nial attributes of each, but the judge cut off this line of
questioning, saying “I don’t think it’s been established
exactly whether this difference, which the respondent did
refer to, I agree, has any resonates in Catholic doctrine or
teaching . . . . Unless you have some information to show
that there is such a distinction made, there’s no reason to
pursue it.” His ruling then faulted Huang for thinking that
Catholics recognize multiple types of baptism—the very
thing he refused to allow her to explain.
The record contains other examples of the immigration
judge questioning Huang aggressively about religious prac-
tices and then mischaracterizing her testimony. At one point,
the immigration judge demanded a specific name for the
service held by a Catholic church on Sundays. Huang re-
plied, “We call it mass,” but added that her underground
church’s priest was not always available to hold mass. That
led to this exchange:
IJ: I see. So there wasn’t always a priest there, you’re
saying.
A: No.
IJ: So then sometimes your father celebrated the mass,
correct?
A: Yes.
No. 03-4009 7
IJ: Okay. Well, do you know that only a priest may
celebrate a mass? Do you know that?
A: Yes, I know that.
IJ: Well, then, how could your father do it then?
A: He’s not in charge of the mass. He’s just leading the
congregation for the scripture reading and Bible
study—Bible reading.
IJ: Well, ma’am, there could be no mass without the
priest. If there was no priest there, there could be
no mass, so—so I take it, then even though—so what
is your response to that, ma’am? If you say that
there was a mass and your father was there and
presiding, how could that—that’s contrary to
Catholic teaching. How could that be?
A: What do you mean, my response to this?
IJ: Well, do you stand by what you said earlier?
A: Yes.
It is unclear from this testimony whether Huang meant
that her father led a mass or whether he led an alternative
ceremony in the absence of the priest, but the immigration
judge acted as if he had caught Huang misstating an ob-
vious fact. Furthermore, nothing in the record establishes
who may lead a mass or any other type of Catholic service—
particularly in an underground Chinese church, which be-
cause of its illegal status might have to deviate from formal
practices.
There is likewise nothing in the record to substantiate
several of the judge’s other questions about the Chinese
church, which included inquiries about the name of Huang’s
“parish,” the “religious order” of her priest, and the name of
the “rectory” where her priest lived. Once again, nothing in
the record establishes, as the immigration judge apparently
assumed, that Chinese Catholics must be members of
8 No. 03-4009
parishes or that priests must belong to orders or live in
rectories. The portion of the immigration judge’s decision
addressing Huang’s knowledge of Catholicism is based en-
tirely on either the judge’s personal beliefs or some perceived
common knowledge about the religion, and is thus not a
proper basis for an adverse credibility finding. See Lin v.
Ashcroft, 385 F.3d 748, 755-56 (7th Cir. 2004) (immigration
judge’s skepticism “utterly unsupported by any facts in the
record” cannot provide basis for adverse credibility finding);
Elzour v. Ashcroft, 378 F.3d 1143, 1153 (10th Cir. 2004) (im-
migration judge may not rely on “speculation, conjecture, or
unsupported personal opinion” to find applicant’s testimony
implausible); Gao v. Ashcroft, 299 F.3d 266, 278-79 (3d Cir.
2002) (immigration judge’s “unsupported assumption”
insufficient basis for adverse credibility finding); Bandari v.
INS, 227 F.3d 1160, 1167 (9th Cir. 2000) (“Personal beliefs
cannot be substituted for objective and substantial evi-
dence.”).
Huang next argues that the second basis for the immigra-
tion judge’s credibility finding—that she could not identify
the “whereabouts” of her priest in China—is improper. We
cannot understand why the immigration judge thought this
issue relevant to Huang’s asylum claim. The judge said that
Huang should have been able to locate the priest “consider-
ing the number of years that she claims she was in contact
with him.” But Huang had not been in China since 2000,
and it is unrealistic for the immigration judge to expect her
two years later to locate the priest of an illegal underground
church whose members have been targeted by Chinese
authorities. Nor do we understand how Huang’s inability to
contact her former priest would bear on her credibility.
Huang next argues that the immigration judge should not
have relied on her irregular church attendance in Chicago
in finding her not credible. Huang testified that she lives in
a Hispanic neighborhood and does not attend the church
nearest her home because services there are conducted only
No. 03-4009 9
in Spanish. The church she attends is further away, but she
does not go all the time because of transportation difficulties
and because she cannot fully understand the services, which
are conducted in English. The immigration judge deemed
Huang’s sporadic church attendance inconsistent with her
professed “fervent catholicism” and dismissed her explana-
tions as ranging “from the transparent to almost the ridicu-
lous.” We do not understand why the immigration judge
would find it “ridiculous” that Huang might not regularly
attend an English-language church service that she could
not fully comprehend, especially at a church located some
distance from her home. Furthermore, the basis for Huang’s
asylum claim is not that she is a “fervent” Catholic—she
never said she was—but rather that she belonged to an
illegal church. Nothing in her testimony or the record
suggests that Chinese officials target only “fervent” mem-
bers of illegal churches.
Next, Huang contends that the immigration judge should
not have based his adverse credibility finding on her failure
to mention her fears of religious persecution when she was
interviewed by immigration officials at the airport. It is true
that an adverse credibility finding can be supported by new
factual assertions made in an application for asylum that
were not made originally to officials upon arrival in the
United States. See Balogun v. Ashcroft, 374 F.3d 492, 501
(7th Cir. 2004); Oforji v. Ashcroft, 354 F.3d 609, 614 (7th Cir.
2003). But the immigration officer at the airport never
asked Huang whether she was afraid of returning to China
or wished to seek asylum. We have previously cautioned
that airport interviews are less reliable when, as here, the
questions asked are not designed to elicit the details of an
asylum claim. See Balogun, 374 F.3d at 505. Moreover, our
misgivings about other parts of the immigration judge’s
decision lead us to conclude that Huang’s failure to mention
her fear of religious persecution at the airport is not suf-
ficient to discredit her. Cf. Georgis, 328 F.3d at 970 (vacating
10 No. 03-4009
order of removal when five of the six reasons for adverse
credibility finding were improper or unsupported).
The immigration judge here exceeded his proper role in
questioning Huang and his conduct during the hearing
tainted his credibility finding. We conclude that the judge’s
adverse credibility finding here was improper because it re-
lies far too much on his own personal experience and be-
liefs, and is thus unsupported by “specific, cogent reasons”
that “bear a legitimate nexus to the finding.” Capric, 355
F.3d at 1086 (internal citation and quotation omitted).
Although we have determined that the immigration judge’s
credibility finding is an inappropriate basis for denying
Huang’s application for asylum, we must also address the
judge’s alternative ground that Huang failed to corroborate
her testimony. See Lin, 385 F.3d at 751. Huang argues that
the immigration judge’s demands for documentation of her
claims—he said she should have presented letters from her
mother and “her priest” attesting to her church member-
ship—were unreasonable and difficult for her to obtain.
When an immigration judge denies an asylum application
for lack of corroborating evidence, the judge must: (1) make
an explicit credibility finding; (2) explain why additional
corroboration is reasonable; and (3) explain why the alien’s
explanation for not producing the requested corroboration
is inadequate. Gontcharova v. Ashcroft, 384 F.3d 873, 877
(7th Cir. 2004).
The corroboration the immigration judge requested here
was unreasonable because it was irrelevant to the key as-
pects of Huang’s asylum claim and would have addressed
only the judge’s unsupported concerns that Huang was not
truly a Catholic. We doubt that the judge would have con-
sidered a letter from Huang’s mother to be particularly
strong evidence. Cf. Lin, 385 F.3d at 757 (“Although the
government suggested at oral argument that affidavits from
her family members could have supported Lin’s case, we are
No. 03-4009 11
hard pressed to believe that these affidavits would have
convinced the IJ that Lin’s testimony was credible.”);
Kourski v. Ashcroft, 355 F.3d 1038, 1039 (7th Cir. 2004) (“it
is odd to think a brother’s affidavit would be persuasive
evidence”). As for the letter from “her priest,” it is unclear
whether the immigration judge meant Huang’s priest in
Chicago or her priest in China. A letter from her priest in
Chicago might have helped establish that Huang is now a
practicing Catholic, but that priest could not possibly cor-
roborate any of the key events in China that provided the
basis for her asylum claim. If the judge wanted a letter from
her priest in China, this was not a reasonable request be-
cause Huang testified that she was unable to contact that
priest, and the immigration judge never explained why her
explanation was inadequate. We thus conclude that the lack
of corroboration was likewise an improper basis for denying
Huang’s application for asylum. Lastly, we note that Huang
also originally applied for withholding of removal and relief
under the Convention Against Torture. But neither her brief
to the BIA nor her opening brief in this court addresses
these claims, so they are waived. See Capric, 355 F.3d at
1087.
III. CONCLUSION
The decision denying Huang’s asylum is not supported by
substantial evidence. See Georgis, 328 F.3d at 967. Accord-
ingly, her petition for review is GRANTED, the order of re-
moval is VACATED, and this case is REMANDED for further
proceedings. Because of our concerns about the judge’s con-
duct during Huang’s removal hearing, we encourage the
BIA to assign this case to a new immigration judge. See,
e.g., Muhur v. Ashcroft, 355 F.3d 958, 961 (7th Cir. 2004).
12 No. 03-4009
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-14-05