Kwok, San K. v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3245
SAN KAI KWOK and YU YAN YUENG,
Petitioners,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A77-050-885
No. A77-050-886
____________
ARGUED MAY 4, 2006—DECIDED JULY 25, 2006
____________
Before POSNER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Yu Yan Yueng and her son San
Kai Kwok applied for asylum, alleging that Chinese family
planning officials forced her to undergo an involuntary
abortion. An immigration judge denied the application,
finding that Yueng and San Kai were not credible and had
not demonstrated either past persecution or a reasonable
fear of future persecution. Because the IJ’s adverse cred-
ibility finding is speculative and not supported by sub-
stantial evidence, we grant the petition for review.
2 No. 05-3245
I.
We take the facts that gave rise to this case from the
testimony the petitioners gave at their asylum hearing.
Yueng testified at the hearing that she, her adult son San Kai
Kwok (who was a minor when he and Yueng applied for
asylum in 2000), and her husband Ho Kwok are from
Tingjiang, Fujian province, China, where Ho Kwok still
resides. She is illiterate, with only two years of primary
education. In 1983, after San Kai was born, Yueng sub-
mitted to the mandatory implantation of an IUD prophylac-
tic device, but at some unknown time it “slipped out.”
Yueng testified that in October 1999 she learned she was
pregnant. She went into hiding, she said, to prevent the
“brigade” from aborting her pregnancy, and stayed at a
cousin’s house in the provincial capital of Fuzhou, about “45
minutes by bus” from her own home. She alleged that after
one of her cousin’s neighbors reported her to the govern-
ment, “officials from the brigade” began searching for her.
She testified that the officials went to her house twice “in
February 1999,” after she had gone into hiding. Her attorney
noticed the impossibility of the dates—that she learned of
her pregnancy in October 1999 and authorities consequently
began searching for her in February 1999. When her attor-
ney pressed her to clarify the timeline, however, the IJ told
him, “She, she answered two times already. Move on to the
next question.”
That same February, according to Yueng’s testimony,
her father-in-law informed her that San Kai had been
seized and imprisoned by the authorities, both to question
him about her whereabouts and to pressure her to come
forward. She specified at least twice that this happened in
1999. That same month, she testified, family planning
officials came to her house twice trying to find her; on the
No. 05-3245 3
second occasion, apparently about a week after she learned
that San Kai had been imprisoned, they found her and
seized her. In recounting this chronology, however, she
specifically testified that the month in question was Febru-
ary 2000. The IJ, now realizing the confusion, attempted to
clarify the timeline and asked Yueng whether she was
certain that all of the events in question occurred in Febru-
ary 2000. She affirmed that she was sure. When he pointed
out that she had first pegged the events as happening in
1999, Yueng replied, “Well, because I’m illiterate I didn’t
receive a lot of education, and so I have a slip of tongue, and
I made a mistake. . . . I did confuse ‘99 and 2000.”
During her cross-examination, the government attorney
asked Yueng about her extended family. She testified that
she has six siblings, two of whom have two children each,
and that her husband also has multiple siblings, but that
those brothers and sisters all live in the United States. The
government then asked Yueng whether she had an “abor-
tion certificate,” to which she replied that “all these certifi-
cates were taken away by the officials in our brigade, so I
don’t have any.” Yueng also said that her husband
had joined her in hiding. The government pointed out that a
letter from Ho Kwok had been offered as an exhibit, but that
while he otherwise corroborated her account he said
nothing about hiding from authorities—only that he “placed
[his] wife in a secret place.” Yueng was unable to explain
why her husband’s letter had not mentioned his own flight
from the authorities.
After Yueng testified, San Kai took the stand. He said that
on February 1, 2000, during one of his classes at middle
school, “some officials from the brigade came . . . to take me
away.” He said that the officials “locked me up in a, in a
dark room, no light, and I, I cry all the time.” They ques-
4 No. 05-3245
tioned him about his mother’s whereabouts, and allegedly
treated him harshly: “The first couple days there’s no food.
They kept high pressure on me and what I could do is just
cry.” He told the authorities that he did not know where his
mother was, even though, he testified, “I knew at that time.”
He testified that he lost track of time in detention, but that
his parents later told him that he had been locked up “for
about a week.” On cross-examination, the government
attorney asked San Kai if he had known where his mother
was while he was detained. He answered, contradicting his
earlier testimony, that he “didn’t know where she was.” He
explained, “what I met [sic] is that I didn’t know where she
was. . . . I could not tell them because I didn’t know.” On
redirect, he testified that he knew his mother’s whereabouts
after he was released, but not while he was “locked up.” San
Kai also testified that his mother “doesn’t have the ability to
communicate clearly with other people,” referring to
an apparent speech impediment, and that even he had
trouble understanding her.
The IJ then issued his decision, finding that the petitioners
were not credible and had failed to show either past perse-
cution or a well-founded fear of future persecution if
returned to China. It was “Mrs. Yueng’s testimony, as
compared to [the written statement attached to her
asylum application] that is essentially the basis” for the
credibility finding. Her testimony, the IJ noted, was incon-
sistent both internally and with the written state-
ment attached to her asylum application as well as with
her husband’s letter.
The first and most important inconsistency identified
by the IJ was whether the February of both her son’s alleged
abduction and her alleged abortion was in 1999 or in
2000—this discrepancy was the “key basis, which this Judge
No. 05-3245 5
relies on in finding the respondent’s testimony to be
incredible.” After summarizing Yueng’s confusion as to the
year and her explanation that she was illiterate, the IJ
dismissed that excuse as irrelevant. The IJ considered the
discrepancy to be significant: “There is a significant amount
of difference between the year 1999 and the year 2000. This
Judge is mindful that a mistake could have been made, but
this Judge is not convinced that a mistake was made.”
Although the IJ characterized this confusion as the
“central issue” to his credibility determination, he explained
that he would have ruled the petitioners incredible even if
Yueng’s testimony about the dates had been consistent. The
other factors he addressed were a lack of supporting
witnesses or documentation such as an abortion certificate,
whether Yueng’s husband joined her in hiding, whether her
son had known her whereabouts while he was detained,
where Yueng was taken into custody, whether or not she
surrendered herself, and why she and her husband’s
siblings were able to have multiple children. The IJ also
determined that Yueng failed to present necessary corrobo-
rating evidence such as an abortion certificate, the results of
a physical examination, documentation of a “bona fide”
marriage, and testimony or affidavits from family members
in the United States.
The BIA summarily affirmed the IJ’s decision in December
2004. Petitioners filed a petition for review in this
court. When petitioners discovered that a section of the
transcript was missing from the administrative record, the
BIA sua sponte reopened the case, and we granted the
parties’ joint motion to dismiss the petition for review
pursuant to Federal Rule of Appellate Procedure 42. The
BIA received and considered the transcripts that had been
6 No. 05-3245
omitted, and again adopted and affirmed the IJ’s ruling.
Yueng and San Kai petition for review of that ruling.
II.
The only issue on appeal is the IJ’s credibility finding.
Because Yueng filed her asylum application before the
REAL ID Act was passed, Pub.L. No. 109-13, 119 Stat. 231,
that statute does not affect the credibility analysis in this
case. See Diallo v. Gonzales, 439 F.3d 764, 766 n.1 (7th Cir.
2006) (REAL ID Act “allows an IJ to require a credible
applicant to provide corroborating evidence in certain
circumstances,” but not where petitioner filed an “asylum
application before May 11, 2005.”). Credibility determina-
tions must be supported by cogent and specific reasons and
bear a legitimate nexus to the finding. Gjerazi v. Gonzales,
435 F.3d 800, 807 (7th Cir. 2006); Mansour v. I.N.S., 230 F.3d
902, 906 (7th Cir. 2000). Those reasons must “go to the heart
of the applicant’s claim.” Giday v. Gonzales, 434 F.3d 543, 550
(7th Cir. 2006). We give “substantial deference” to the
reasons the IJ gives for a credibility determination, and we
will reject such a determination only in “extraordinary
circumstances.” Id. But we have explicitly held that “adverse
credibility determinations should not be grounded in trivial
details or easily explained discrepancies” because such
bases lack the necessary “legitimate nexus to the finding.”
Korniejew v. Ashcroft, 371 F.3d 377, 387 (7th Cir. 2004)
(citation omitted). None of the bases relied upon by the IJ in
this case constitutes such a legitimate nexus.
A. Testimonial Inconsistencies
The first (and according to the IJ, most important) reason
for his determination was Yueng’s vacillation as to whether
No. 05-3245 7
the events in question happened in February 1999 or
February 2000. But “adverse credibility determinations may
not be based on minor discrepancies that are easily ex-
plained,” Shtaro v. Gonzales, 435 F.3d 711, 716 (7th Cir. 2006),
which precisely describes this discrepancy. Yueng, who
communicates poorly, confused the dates but consistently
identified the underlying events as occurring subsequent to
and being the result of her pregnancy in 1999. See Georgis v.
Ashcroft, 328 F.3d 962, 968 (7th Cir. 2003) (chronological
inconsistency insufficient to support adverse credibility
finding where petitioner “tried to place the event in ques-
tion in its proper chronology even if she could not calculate
the correct date in our calendar system”). Yueng unambigu-
ously testified that she went into hiding after learning in
October 1999 that she was pregnant, making it impossible
that she could have been referring to events in February
1999. Her testimony that she fled in October 1999 is consis-
tent with the written statement she submitted with her
asylum application, which also dates her encounters with
the family planning authorities to February 2000. On appeal,
Yueng attributes her confusion to her illiteracy, poor
education, and general difficulty communicating. The IJ
dismissed her education as an explanation for the error, but
did not address her communicative difficulties or the
obvious fact that February 1999 was a nonsensical date. The
IJ’s analysis was therefore insufficient because he did not
“attempt to ascertain whether [the inconsistencies] could be
accounted for.” Shtaro, 435 F.3d at 716.
The petitioners also argue that the IJ improperly dis-
credited them by relying on an apparent putative discrep-
ancy as to whether Yueng’s husband hid from the authori-
ties with her. The IJ wrote that, contrary to Yueng’s testi-
mony her husband joined her in hiding at her cousin’s
home, her husband “did not accompany her.” But the record
8 No. 05-3245
contains no basis for this conclusion. Although Ho Kwok’s
written statement is silent as to whether he joined her in
hiding, nothing in it (or elsewhere in the record) contradicts
Yueng’s testimony that “he went into hiding with me, in my
place later.” The IJ’s assertion that Ho Kwok did not hide
with his wife is “unmoored from the record, based on
nothing but the IJ’s personal speculation or conjecture.”
Tabaku v. Gonzales, 425 F.3d 417, 421 (7th Cir. 2005); see also
Lin v. Ashcroft, 385 F.3d 748, 755-56 (7th Cir. 2004) (“The IJ’s
skepticism—utterly unsupported by any facts in the
record—with respect to [an element of petitioner’s testi-
mony] does not form a valid basis for a negative credibility
determination.”). The IJ’s problematic findings on these
issues are sufficiently serious to call into question his
adverse credibility determination.
Other inconsistencies that the IJ identified are more
substantial, but not significant enough to support the
adverse credibility determination. The IJ wrote that Yueng
testified that she “was found in Fuzhou City,” but he
noted that the written statement in her asylum applica-
tion “indicated that she surrendered herself to the township
office1.” And as the government points out, Yueng testified
inconsistently as to the manner in which she was taken into
custody. At one point in the hearing, she clearly and
unambiguously testified that she did not turn herself in; not
long afterwards, however, she admitted that she did turn
herself in to the authorities in order to secure her son’s
release. Similarly, as the IJ also noted, San Kai testified
1
Although the IJ characterizes this as an inconsistency be-
tween Yueng’s testimony and her written statement, he appar-
ently meant to refer to Ho Kwok’s written statement, in which Ho
Kwok writes that his wife turned herself in to the township office.
No. 05-3245 9
inconsistently about whether he knew where Yueng was
while he was detained. He testified that he knew where his
mother was while he was imprisoned, but during his cross-
examination stated that he “didn’t know where she was.”
The IJ was entitled to question the petitioners’ credibility
based on these inconsistencies, but the other grounds for the
adverse credibility finding were too seriously flawed for us
to affirm it on this basis. See Tabaku, 425 F.3d at 423 (grant-
ing petition for review despite inconsistency that made
petitioner “less believable”); Georgis, 328 F.3d at 970 (in light
of five flawed bases for the challenged credibility finding,
“we are not inclined to defer to [that finding] on this
remaining sixth ground alone”).
B. Irrelevant Facts and Evidence
Petitioners next contend that the IJ relied on irrelevant
facts and evidence in finding them incredible. They specifi-
cally address the IJ’s assertion that Yueng, by conceding that
she and her husband have several siblings who have more
than one child apiece, inadvertently showed that the one-
child policy is not currently enforced “in her village, in her
province.” We held in Zheng v. Gonzales, 409 F.3d 804 (7th
Cir. 2005), that where the record provides no details about
a petitioner’s nieces and nephews, “the childbearing
histories of [a petitioner’s] siblings and in-laws have only
limited relevance to her claim.” Id. at 810-11. The petitioners
correctly point out that the record here does not reflect
when Yueng’s nieces and nephews were born, so the IJ
could not know whether her siblings were even subject at
the time to the one-child policy. And even if they were,
reports entered into the record reflect that Fujian follows a
“one-and-a-half child policy” allowing couples to have a
second child if the first is a girl, and that some couples in
10 No. 05-3245
Fujian receive official permission to have an additional child
regardless. With regard to her husband’s siblings, several
live in the United States where there obviously is no govern-
ment mandate limiting one child per family. The IJ’s
analysis on this point is again “unmoored from the record,
based on nothing but the IJ’s personal speculation or
conjecture.” Tabaku, 425 F.3d at 421.
C. Lack of Corroboration
Finally, the petitioners take issue with the IJ’s determina-
tion that they were incredible because they did not intro-
duce corroborating evidence to support their claims.
Specifically, the IJ criticized Yueng for not submitting “any
documents to really establish that there is a marriage that’s
a bona fide relationship,” certification of the alleged abor-
tion, a physician’s report to demonstrate that she had an
abortion, or supporting affidavits or testimony from family
members in the United States. But our precedent precludes
the IJ from demanding that they produce
such corroboration. Under the applicable pre-REAL ID
Act standard an “IJ who denies an asylum claim for lack of
corroboration must first make an express credibility
finding,” as well as “explain why it is reasonable to expect
corroboration and explain why the applicant’s reason for
not supplying corroboration is inadequate.” Diallo, 439 F.3d
764, 765-66 (citation omitted); see also Gontcharova v. Ashcroft,
384 F.3d 873, 877 (7th Cir. 2004). Most importantly, an IJ
may not require an applicant to submit irrelevant corrobo-
rating evidence. See Rodriguez Galicia v. Gonzales, 422 F.3d
529, 537 (7th Cir. 2005); Huang v. Gonzales, 403 F.3d 945, 951
(7th Cir. 2005).
The IJ’s requests were irrelevant. Whether or not Yueng
had a “bona fide relationship” with her husband has no
No. 05-3245 11
bearing on whether or not she was subjected to an involun-
tary abortion, and the IJ did not explain his reasoning to the
contrary. And since Yueng’s hearing, this court has twice
held that the sort of abortion certificate the IJ demanded
probably does not exist, and that applicants may not be
required to present them. See Zhang v. Gonzales, 434 F.3d
993, 999-1000 (7th Cir. 2006); Lin, 385 F.3d at 753-54. Indeed,
any applicants who do present such a certificate may find
that it counts against their credibility. See Huang v. Gonzales,
No. 05-1711 (7th Cir., July 14, 2006). And as for the other
medical testimony the IJ requested, nothing in the record
suggests that it would be possible for Yueng to obtain a
physical examination in this country that would corroborate
an abortion performed several years earlier. Accordingly,
the IJ failed to explain why it was reasonable to require this
evidence. See Diallo, 439 F.3d at 766. Finally, the IJ neglected
to explain why Yueng and San Kai needed family members
in the United States to testify on their behalf. Nothing in the
record suggests that the petitioners’ family members here in
the United States were present for, witnessed, or have
particular knowledge of the alleged persecution Yueng
suffered in China. Without describing what corroboration he
expected from such witnesses, other than generic “testi-
mony as to the stated persecution experienced by both
respondents,” the IJ failed to explain why it was reasonable
to expect such corroboration. Id.
12 No. 05-3245
III.
We hold that the IJ’s credibility determination was
speculative and lacked substantial supporting evidence. The
purported inconsistencies upon which the IJ based
his ruling were, for the most part, so inconsequential that
the determination cannot be supported even though the
IJ identified at least one potentially serious inconsistency.
Nor was the IJ entitled to hold the petitioners responsible
for failing to produce corroborating evidence, when the
evidence the IJ expected to see was irrelevant. The petition
for review is
GRANTED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-06