Jiang, Chung R. v. Gonzales, Alberto R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3142
CHUN RONG JIANG,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A78 957 311
____________
ARGUED APRIL 17, 2007—DECIDED MAY 14, 2007
____________
Before KANNE, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Chun Rong Jiang applied for
asylum, withholding of removal, and protection under the
Convention against Torture (CAT) based on religious
persecution he claims to have suffered in China both as a
Christian and as the founder of an underground church.
The immigration judge (IJ) denied relief because he found
Jiang’s testimony incredible and, alternatively, because
he believed that Jiang had suffered only harassment, not
persecution. The Board of Immigration Appeals (BIA)
adopted and affirmed the IJ’s decision, and Jiang now
petitions for review.
Jiang entered the United States in the summer of 2002
without inspection through Brownsville, Texas, but shortly
2 No. 06-3142
after his arrival he was placed in removal proceedings.
Within a year of his arrival Jiang applied for asylum,
withholding of removal, and relief under the CAT.
In his application and testimony before the IJ, Jiang
asserted that he started facing persecution once he
founded an underground Christian church in October
2001 in Fujian province. As a child Jiang attended a
church run by the Chinese government, but when he
became an adult he chafed at the government’s use of
the church to control Christians and decided to hold
religious services at his home. This underground church
remained small, but even still he received many warn-
ings from government officials to stop the services.
Jiang also stated that during a church service held in
February 2002, four uniformed officers broke into his
house. When Jiang asked them if they had a warrant, an
officer slapped him in the face, proceeded to search his
home, and confiscated all his religious materials. The
officers then handcuffed everyone attending the service,
including Jiang, and took them to the police station.
Once at the station, Jiang asserted that officers ordered
him to squat while they interrogated him about his
underground church. During this interrogation the officers
repeatedly beat him with batons and pushed him to the
ground while his hands remained cuffed. The officers
then put him into a cell with four other prisoners who
repeatedly beat him; he testified that the guards instigated
this violence and never intervened to protect him. After
seven days, Jiang’s relatives gathered enough money to
pay a fine and he was released.
Following his release Jiang testified that he immedi-
ately went to the hospital, where he stayed for two weeks
while doctors treated his injuries. Jiang submitted med-
ical records demonstrating that he had suffered soft tissue
injuries, swelling, and bruising on his abdomen and legs.
No. 06-3142 3
According to Jiang, upon his discharge from the hospital
he was prohibited from attending church, lost his job at a
state-owned hotel, and was required to report to the
police weekly, all of which motivated him to flee China.
Within one day, he procured commitments from family
members to pay—once he arrived safely in the United
States—the $60,000 fee required to smuggle him out of
China on a fraudulent passport.
The IJ denied Jiang’s application for relief. The IJ
discredited Jiang’s testimony based on: (1) his “lack of
knowledge” about Christianity; (2) his testimony that he
arranged to leave China in one day, an account the IJ
found implausible; (3) Jiang’s purportedly inconsistent
testimony regarding his fraudulent Chinese passport; and
(4) the medical records, which the IJ described as “sus-
pect.” Alternatively, the IJ concluded that, even assum-
ing that Jiang testified credibly, the harm he faced did not
rise to the level of persecution. Since Jiang did not qualify
for asylum, the IJ also denied Jiang’s applications for
withholding of removal and relief under the CAT. The
BIA adopted and affirmed the IJ’s decision with a one-
paragraph order that contained no additional analysis.
Jiang argues on appeal, and we agree, that none of the
IJ’s four reasons for rejecting his testimony are supported
by substantial evidence. Jiang first maintains that the IJ
erred by discrediting his testimony that he led an under-
ground church. Specifically, Jiang contends that the IJ
erred by concluding that he lacked knowledge about
Christianity based not on the record but on the IJ’s own
beliefs about Christianity and what should be common
knowledge for Christians in China.
We will overturn an IJ’s adverse credibility determina-
tion if it is not supported by “specific, cogent reasons” that
“bear a legitimate nexus to the finding.” Gjerazi v. Gonza-
les, 435 F.3d 800, 807 (7th Cir. 2006) (citations omitted).
4 No. 06-3142
Findings that rest on an IJ’s own speculation, conjecture,
or unsupported personal opinion are improper. Chen v.
Gonzales, 420 F.3d 707, 710 (7th Cir. 2005); Lin v.
Ashcroft, 385 F.3d 748, 755-56 (7th Cir. 2004). Likewise,
an IJ’s “personal beliefs or some perceived common
knowledge about the religion . . . [are] not a proper basis
for an adverse credibility finding.” Huang v. Gonzales, 403
F.3d 945, 949 (7th Cir. 2005).
Jiang correctly argues that the IJ impermissibly relied
on personal beliefs and his perceived common knowledge
when concluding that Jiang “has, at best, rudimentary
if any knowledge about Christianity.” We have cautioned
IJs against using an applicant’s “ignorance of the details
of religious doctrine . . . as evidence that an individual is
not a true believer,” Muhur v. Ashcroft, 355 F.3d 958, 961
(7th Cir. 2004); see also Huang, 403 F.3d at 949; Iao v.
Gonzales, 400 F.3d 530, 534 (7th Cir. 2005), but that is
precisely what the IJ did here as evidenced by this exam-
ple:
IJ: Are you aware of the biblical injunction render
unto Caesar the things that are Caesar’s and to God
the things that are God’s . . . .
Jiang: As far as my basic belief, understanding of the
Bible is that—
IJ: What I’m asking you is to explain the phrase to me.
Jiang: I cannot explain very thoroughly because my
understanding of the Bible is very limited and my
understanding of, the basic understanding is the
truth and the path . . . .
IJ: Well, the reason I ask you this particular phrase
is because . . . the phrase is well-known . . . . I thought,
that you would know it.
The IJ assumed that Jiang would be familiar with and
understand this particular biblical text. The IJ used
No. 06-3142 5
Jiang’s inability to interpret it as evidence that he was
not, as he claimed, a real Christian. This is a bit like
concluding that someone is not a baseball devotee because
he can’t explain the intricacies of the balk rule. The IJ
also questioned Jiang about the difference between the
Old and New Testaments but rejected his response, even
though Jiang identified Adam, Eve, Isaac, and Solomon;
described Jesus as “savior”; and described the New Testa-
ment as the story of Jesus and his 12 disciples and how
they “fight with evil,” “cure the diseases,” and “spread the
gospels.”
In the Profile of Asylum Claims, the Department of
State informs adjudicators that “because of a lack of access
to religious training and literature, some committed
Chinese Christians may have difficulty responding to”
simple doctrinal questions. Instead of accounting for this
limited doctrinal knowledge, the IJ here erroneously
discredited Jiang’s testimony based on an exaggerated
notion of how much people in China actually should know
about Christianity.
Jiang next argues that the IJ impermissibly relied on
speculation and conjecture when he discounted as implau-
sible his account of arranging to leave China on short
notice, without pre-paying any portion of the smuggling
fee. Jiang maintains that the manner in which he fled
China is irrelevant to the heart of his claim of religious
persecution and that, in any event, the IJ rejected this
testimony based on his own opinions about how smug-
gling operations work in China.
As an initial matter, an “IJ’s adverse credibility finding
must be based on issues that go to the heart of the appli-
cant’s claim,” see Adekpe v. Gonzales, No. 05-3951, 2007
U.S. App. LEXIS 5840, at *16, *24 (7th Cir. Mar. 14, 2007)
(citations omitted), and the manner in which Jiang was
smuggled out of China has nothing to do with his claim of
6 No. 06-3142
religious persecution. Moreover, we have previously
reversed an IJ’s adverse credibility finding when it was
based on his own assumptions of how long it should take
Chinese residents to arrange passage to the United States,
see Chen, 420 F.3d at 709-10; the IJ made the same
assumptions here. A 2004 report on China, released by
the United Kingdom’s Immigration and Nationality
Directorate, reveals that Fujian province has a “huge”
network of smugglers that work in concert together,
including transporters, guides, and corrupt public officials,
and the IJ pointed to no evidence suggesting that this
sophisticated ring of smugglers was incapable of arranging
for Jiang’s departure in one day. And contrary to the IJ’s
assumption, this same report and newspaper articles
submitted by Jiang reveal that many of those smuggled out
of China do not pay any portion of their fee before leaving,
and that debt collectors based in the United States and
China ensure payment upon safe arrival. The IJ erred by
discrediting Jiang’s account of arranging to leave China in
one day without first paying his smugglers.
Jiang also maintains that the IJ mischaracterized his
testimony when the IJ concluded that he testified incon-
sistently regarding whether he traveled with a valid
passport and when he obtained a passport. Jiang contends
that he consistently testified that he received a fraudulent
passport from a smuggler the day he left China.
A review of the record reveals that the IJ did
mischaracterize Jiang’s testimony, and that cannot justify
an adverse credibility finding. See Ssali v. Gonzales, 424
F.3d 556, 563 (7th Cir. 2005); Lin, 385 F.3d at 753. Jiang
did testify on direct examination that he had no valid
passport when he left China, but his testimony is con-
sistent with his later revelation that he presented the
INS with a fraudulent passport bearing his name and
picture. The IJ also noted that the fraudulent passport
was purportedly issued in September 2001, and the IJ
No. 06-3142 7
found this inconsistent with Jiang’s testimony that he
decided to leave China in March 2002. But the IJ’s finding
overlooked Jiang’s explanation that the issuance date, like
the rest of the passport, was fraudulent and that he did
not receive the fake passport until the day he left China.
Jiang also maintains that the IJ erroneously discounted
the records of his two-week hospital stay. Jiang argues
that the IJ found these documents “suspect” not based on
record evidence, but based on his own assumptions
regarding what information is included in Chinese hos-
pital documents. We agree with Jiang on this point.
The IJ stopped short of calling the medical records
fraudulent, but he was “skeptical of the records” because
they stated in “colloquial and layman’s language” that
Jiang “sustained unbearable pain and discomfort.” This
characterization ignores the hospital records’ more
precise description of Jiang’s diagnosis—which includes
swelling, bruising, and soft tissue injury, particularly
in the abdomen below the navel and on both of his
legs—and fails to recognize that a more professional tone
could have been simply lost in translation. What’s more,
the IJ did not point to anything in the record to support
his suggestion that the hospital records were not genuine.
See Ayi v. Gonzales, 460 F.3d 876, 883 (7th Cir. 2006)
(vacating adverse credibility finding based on IJ’s specula-
tion that documents were forgery); Uwase v. Ashcroft, 349
F.3d 1039, 1042 (7th Cir. 2003).
Jiang also contends that the record compels this court
to overturn the IJ’s alternative finding that Jiang’s
experiences did not rise to the level of persecution. Jiang
argues that the IJ reached this finding by impermissibly
considering only his detention and beating at the hands of
the police and ignoring other evidence of persecution, like
his testimony about the repeated beatings by other prison-
ers at the instigation of the police, the illegal search of his
home, and the confiscation of his religious materials.
8 No. 06-3142
Persecution is “punishment or the infliction of harm for
political, religious, or other reasons that this country does
not recognize as legitimate.” Liu v. Ashcroft, 380 F.3d
307, 312 (7th Cir. 2004) (citations omitted). We have
recognized that “detention, arrest, interrogation, prosecu-
tion, imprisonment, illegal searches, confiscation of
property, surveillance, beatings, or torture may be suffi-
cient to establish persecution,” Soumahoro v. Gonzales,
415 F.3d 732, 737 (7th Cir. 2005) (citations omitted), but
the harm suffered must rise above the level of “mere
harassment.” Liu, 380 F.3d at 312. Finally, the IJ is
required to consider the evidence as a whole when deter-
mining whether an asylum applicant has suffered persecu-
tion in the past. See Cecaj v. Gonzales, 440 F.3d 897, 899
(7th Cir. 2006).
In concluding that Jiang had not suffered past persecu-
tion, the IJ erroneously focused only on Jiang’s detention
and beating, concluding that “[t]o be sure, kicking and
then injury to the soft tissue around the stomach is mere
harassment.” The IJ failed to consider the entire sequence
of experiences that Jiang underwent. The IJ made no
mention of Jiang’s testimony that he was prohibited from
attending church, that police illegally searched his home,
that police confiscated his religious materials, and that
police continued to track his whereabouts after his re-
lease by requiring him to check in weekly. See Gomes v.
Gonzales, 473 F.3d 746, 754 (7th Cir. 2007) (remanding
where IJ concluded that breaking into alien’s home,
confiscating property, and threatening at knife point
constituted harassment); Kantoni v. Gonzales, 461 F.3d
894, 898 (7th Cir. 2006) (“A credible threat that causes
a person to abandon lawful political or religious associa-
tions or beliefs is persecution.”); Gjerazi, 435 F.3d at 808(noting that persecution may include illegal searches,
confiscation of property, and surveillance). The IJ also
neglected to sufficiently address the repeated beatings
No. 06-3142 9
that Jiang claims to have suffered at the hands of other
prisoners during his week-long detention. The government
can abet—and thus become responsible for—private
discrimination by inciting religious violence or refusing
to protect a target of such violence. See Gomes, 473 F.3d
at 754. Here, Jiang repeatedly and consistently testified
that the police instigated and refused to prevent these
attacks.
Finally, Jiang argues that even if the court upholds the
IJ’s finding that he experienced only harassment in the
past, he is still eligible for asylum based on his well-
founded fear of future persecution. In his asylum ap-
plication and testimony, Jiang explained that he feared
detention and physical abuse if he returned to China and
that, according to his parents who remain in China, police
officers visit their home weekly looking for him. Despite
this evidence the IJ failed to make a finding regarding
Jiang’s fear of future persecution, and that’s yet another
reason this case requires a remand. See 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(B)(i) (describing eligibility
for asylum based on well-founded fear of future persecu-
tion); Mema v. Gonzales, 474 F.3d 412, 418 (7th Cir. 2007)
(remanding where IJ failed to sufficiently consider evi-
dence of applicant’s fear of future persecution).
Accordingly, we GRANT the petition for review, VACATE
the removal order, and REMAND for a new hearing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-14-07