Chen, Jinlong v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3965
JINLONG CHEN,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A70-885-665
____________
ARGUED JULY 6, 2005—DECIDED AUGUST 25, 2005
____________
Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Jinlong Chen claims that he was
detained and abused in his native China by police
who wanted him to testify against the pastor of his under-
ground church. This detention and abuse are not mentioned
in Chen’s initial asylum application, which he filed soon
after arriving in the United States in 1993. Chen blames
the omission on an agency that he says prepared the
application without asking him about his history.
The immigration judge (“IJ”) did not credit this explanation
and, finding other aspects of Chen’s testimony also implau-
sible, denied Chen’s requests for asylum, withholding
of removal, and relief under the United Nations Convention
2 No. 04-3965
Against Torture. We conclude that the reasons the IJ gave
for his decision are not supported by substantial evidence,
and we therefore grant Chen’s petition for review.
Chen says that in January 1992, a classmate at his high
school in Changle, Fujian province, introduced him to
Guoping Lin, the pastor of an unauthorized Christian
church. Chen soon joined the church, and he and his
classmate began proselytizing at their school. School
officials notified the police, who arrested the two students.
Over the next six days, the police repeatedly beat Chen
(particularly in the face) and withheld food to force him to
implicate Lin for the crime of “spreading an evil cult.” Chen
finally relented, signed a statement, and was released two
days later. He was told to report to the police daily until
Lin’s trial ten days later, at which he was to testify. Unwill-
ing to go through with testifying, Chen with his family’s
assistance arranged to escape to the United States on a
smuggler’s boat, paying $1,000 to the smuggler up-front and
promising him another $24,000.
Chen arrived in New York without inspection on April 20,
1993. There, he saw an advertisement in a Chinese-lan-
guage newspaper from an agency called “Xinlong” offering
help applying for asylum. He contacted the agency and told
them he was a Christian having problems with the Chinese
government, but gave them little information beyond that.
The agency then prepared an asylum application, which
included a three-paragraph typewritten declaration in
English describing Chen’s participation in a “secret Chris-
tian fellowship” at his school and various actions taken
against him by school authorities, such as confiscating his
religious books and refusing to issue him a diploma upon
graduation. The declaration made no reference either to
Pastor Lin or to any episode of detention or abuse by police.
Chen says that he signed the application without knowing
its contents.
No. 04-3965 3
The application was filed, but nothing came of it until
2001, when Chen was placed in removal proceedings. The
counsel Chen retained at that time prepared a new
asylum application, containing Chen’s own handwritten
affidavit (in Chinese, with English translation) describing
his relationship with Pastor Lin and his encounter with the
police. At a hearing in May 2003, Chen testified concerning
the events described in his affidavit and submitted corrobo-
rating letters from Pastor Lin (who ended up serving a six-
year sentence for his unauthorized ministry) and Chen’s
high-school classmate (who spent eighteen months in a
reeducation camp). He also claimed that the police were
still asking his parents about his whereabouts, and ex-
pressed fear that if he returned to China he would be
arrested and prosecuted both for his proselytizing activities
and for obstructing justice by failing to testify against
Pastor Lin.
The IJ found Chen’s testimony not credible. He gave
four reasons: (1) the abuse Chen claimed to have suffered
was inconsistent with his account of what he did after being
released (walking home three kilometers; not going to the
doctor), and was unsupported by photographic or other
evidence; (2) it seemed unlikely that Chen and his parents
(who were indigent farmers) would be able in the space of
a few days to arrange his smuggling and pay an up-front fee
of $1,000; (3) Chen’s central story of detention and abuse
was not contained in his first asylum application; and (4) it
seemed unlikely that the police would still care to pursue
him after ten years for something he did when still in high
school. The IJ therefore denied all of Chen’s requested
relief. The Board of Immigration Appeals affirmed in a one-
paragraph decision, finding the IJ’s credibility finding not
clearly erroneous.
Chen now contends that none of the IJ’s stated reasons
for finding him not credible is supported by substantial
evidence. See Huang v. Gonzales, 403 F.3d 945, 948
4 No. 04-3965
(7th Cir. 2005). Although § 101(a)(3) of the REAL ID Act
of 2005, Pub. L. 109-13, 119 Stat. 302, 303, codified at
8 U.S.C. § 1158(b)(1)(B), changed the standards governing
credibility determinations in asylum cases, our review
in this case is unaffected because Chen’s application
was filed prior to the effective date of that amendment,
which is not retroactive, see REAL ID Act § 101(h)(2),
119 Stat. at 305; Olujoke v. Gonzales, 411 F.3d 16, 22 n.4
(1st Cir. 2005).
We agree that there is not substantial evidence sup-
porting the IJ’s reasons for finding Chen not credible. First,
the IJ found it implausible that Chen would be able to walk
the three kilometers home from the detention center after
being, as Chen described it, “tortured beyond recognition.”
But it is unclear how the facial disfigurement he claimed to
have suffered would impair his ability to walk, nor is it
clear that three kilometers is a particularly onerous
distance. The IJ thought it unlikely that Chen would not
have visited a doctor after such treatment, but he did not
address Chen’s explanation that his injuries were all
external and sufficiently treatable at home. The IJ insisted
that, besides Chen’s testimony, there was “no other evi-
dence attesting to his condition” after his beatings. But the
nature of his injuries was corroborated in the letter of his
classmate, which described meeting Chen briefly on the
second day of their detention and seeing that he “had been
tortured so brutally that I could barely recognize him right
away,” that there was “a big blue bump on his forehead,”
and that “[t]here were many cuts and bruises on his body.”
These statements are consistent with Chen’s own testimony
about his injuries (“[O]ne of the policemen pushed my head
against the wall and cause [sic] a big bruise on my head and
they also used different devices like a club, a police club to
beat me.”).
Second, the IJ found it implausible that Chen would
be able, in the nine days between his release from detention
No. 04-3965 5
and his escape from the country, to “make arrangements
with a smuggler and have his poor farmer parents get
together with relatives to pay $1,000 and make those
arrangements to come all the way to the United States,
which involved a couple of vessels and movements to reach
his destination.” This description exaggerates the complex-
ity of Chen’s voyage—the two boats Chen described were a
“big boat” traveling directly from China to the United
States, and a “small fishing boat” used to ferry him from the
shore to the big boat. This itinerary appears no more
complicated than any other smuggling operation, and the IJ
does not explain why he thought it would take more than
nine days to arrange. Nor does the IJ indicate how long he
expects it should take for a rural Chinese family to pool
together $1,000 to pay for such an arrangement. Chen is
justified in describing the IJ’s rejection of these claims as
conjectural and speculative. See Korniejew v. Ashcroft,
371 F.3d 377, 383 (7th Cir. 2004) (reviewing court will not
uphold adverse credibility determinations based on specula-
tion or conjecture rather than on evidence in the record)
(citing Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)); see
also Huang, 403 F.3d at 949.
The third reason the IJ discredited Chen’s story was its
absence from his original 1993 asylum application. Signifi-
cant discrepancies among different versions of an alien’s
statement are generally a permissible basis for an ad-
verse credibility decision. See, e.g., Capric v. Ashcroft,
355 F.3d 1075, 1089-90 (7th Cir. 2004). Nevertheless, we
and other courts have noted that initial asylum applications
should not always be considered completely reli-
able, particularly when filled out without the assistance
of counsel. See Pop v. INS, 270 F.3d 527, 532 (7th Cir. 2001)
(“Asylum forms are frequently completed without the advice
of counsel by poor, illiterate people who do not speak
English.”); see also Alvarez-Santos v. INS, 332 F.3d 1245,
1254 (9th Cir. 2003) (recognizing that “preparers, whether
6 No. 04-3965
lawyers or non-lawyers, are not always scrupulous” and
that “[i]nconsistencies due to an unscrupulous preparer,
without other evidence of dishonesty . . . do not provide a
specific and cogent basis for an adverse credibility finding”);
cf. Canaveral Toban v. Ashcroft, 385 F.3d 40, 46 (1st Cir.
2004) (finding no prejudice caused by the filing of a fraudu-
lent asylum application by a sham attorney, given that the
IJ allowed applicant to submit a new application and did
not consider earlier fraudulent application decisive on issue
of credibility).
Chen insisted that the omissions in the earlier application
were caused by a preparer who did not adequately inquire
into his circumstances. The IJ rejected that explanation,
giving three reasons: first, there was no indication on the
form itself that anyone had assisted with its preparation;
second, Chen had no evidence of the agency’s existence; and
third, “the application contains information that only the
respondent could have provided to anyone who filled out
this application, and the respondent has acknowledged that
except for two statements, the information is correct.”
The first two reasons are insubstantial. If the agency that
prepared the application was as unscrupulous as Chen’s
story suggests—soliciting no more than a few details from
the applicant, more or less inventing a story around those
details, and having the applicant sign the story without
reading it to him first—it is not surprising that it would not
go to the trouble of putting its own name on the form. Nor
is it surprising that evidence of its existence would be hard
to find ten years later.
But the existence or non-existence of the agency is
not really the issue. It is obvious that someone assisted
Chen with the application—the form and statement are
entirely in English, and there is no suggestion that
Chen knew any English when he arrived in the United
States. The relevant question is whether the person
No. 04-3965 7
who prepared the statement did so with or without signifi-
cant contribution from Chen. If Chen was the primary
source of the narrative, the IJ reasoned, then one would
expect it to refer to the events involving Pastor Lin, and the
absence of any such reference would suggest that those
events did not actually happen.
The IJ believed that Chen was the primary source for
the narrative because it contained information that
only Chen could have provided and, except for the omission
of the story of Pastor Lin, it was essentially “the same as in
[Chen’s] testimony.” But the application’s narrative and
Chen’s testimony are in fact quite different. The application
speaks of Chen’s joining a “secret Christian fellowship” at
his high school; but the church he later described was based
not at his school but at Pastor Lin’s house. The application
recounts the school’s efforts (including “disseminat[ing] a
circular”) to discourage students from becoming Christians;
but Chen testified only that the school officials reported his
proselytizing to the police. The application says that the
school authorities “went to my dormitory and took away my
religious books”; but at his hearing Chen explicitly denied
that school authorities had ever taken away his books. The
application asserts that school officials “even refused to
issue me a diploma” upon graduation; according to his
testimony, he was dismissed by the school before he was
able to graduate. The only information particular to Chen in
the statement is that he was a student at Changle High
School—one of the few pieces of information that he
testified giving to the agency (“I told them I was a student
at Changle Number One High School and I’m a Christian
and just those basic informations [sic].”). The IJ’s conclusion
that the original narrative could not have been drafted
without significant input by Chen thus lacks substantial
support.
That leaves the fourth of the IJ’s stated reasons for
finding Chen not credible—the unlikelihood that the police
8 No. 04-3965
would still be interested in pursuing him. The IJ explained:
“It seems most unlikely that the authorities would want to
again incarcerate [Chen] who they released in 1993 after he
gave a confession implicating the pastor simply because he
failed to show up for the pastor’s hearing ten years after
these events occurred. It seems most unlikely to me. In
addition, this was an event which occurred when the
respondent was a high school student. He is now 28 years
of age.” The IJ appears to be saying that Chinese authori-
ties will be indifferent to Chen’s infraction because of the
passage of time and his relative youth, but he points to no
evidence supporting that conclusion. Cf. Lian v. Ashcroft,
379 F.3d 457, 459-60 (7th Cir. 2004) (observing that “the
age of adult criminal responsibility in China is only 16”). In
any event, such a conclusion has no bearing on the credibil-
ity of Chen’s account of past persecution, but concerns only
whether Chen has a well-founded fear of future persecution
—a question the IJ did not explicitly address. See 8 C.F.R.
§ 208.13(b)(1); Diallo v. Ashcroft, 381 F.3d 687, 697 (7th Cir.
2004) (once past persecution has been shown, the burden
falls to the government to show that the applicant’s fear of
future persecution is not well-founded).
In sum, the IJ provided several reasons for discrediting
Chen’s testimony, but he did not identify substantial
support in the record for any of them. Although the stan-
dard of review for an IJ’s credibility determination is highly
deferential, see Nigussie v. Ashcroft, 383 F.3d 531, 534
(7th Cir. 2004), we cannot uphold the IJ’s decision in this
case, even under that deferential standard, see id. (credibil-
ity determinations must be “well-reasoned” to warrant
deference). We therefore GRANT Chen’s petition for review,
VACATE his order of removal, and REMAND the case for
further proceedings.
A true Copy:
Teste:
No. 04-3965 9
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-25-05