Chun Sui Yuan v. Loretta E. Lynch , 827 F.3d 648 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2834
CHUN SUI YUAN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A099-525-213
____________________
ARGUED APRIL 26, 2016 — DECIDED JUNE 28, 2016
____________________
Before KANNE, SYKES, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Chun Sui Yuan, a 36-year-old
Chinese citizen, applied for asylum and withholding of
removal based on his asserted opposition to China’s coercive
population-control policy. Central to his eligibility for relief
is Yuan’s testimony that employees of a government birth-
control agency assaulted him because his girlfriend had
2 No. 15-2834
failed to attend a medical examination. An immigration
judge disbelieved much of Yuan’s story, reasoning that his
testimony wasn’t credible and also lacked corroboration. The
Board of Immigration Appeals, in its own standalone
decision, endorsed the adverse credibility assessment but
not the Immigration Judge’s (“IJ”) dissatisfaction with the
amount of corroborating evidence. Yuan petitions for review
of the Board’s decision, arguing that the credibility finding is
flawed because several of the perceived inconsistencies are
illusory and the actual inconsistencies are either immaterial
or trivial. We agree and, thus, remand for further
proceedings.
I. Background
With the assistance of a snakehead, Yuan illegally en-
tered the United States near Hidalgo, Texas, in November
2005. Within a few days, Yuan received a Notice to Appear
charging him with removability for entering without per-
mission. See 8 U.S.C. § 1182(a)(6)(A)(i). Yuan conceded re-
movability at a November 2006 hearing before the IJ in Chi-
cago but applied for asylum and withholding of removal.
(Yuan also applied for protection under the Convention
Against Torture, but that claim has been abandoned.)
In his application Yuan asserted that he feared being ar-
rested or killed by the Chinese government because he op-
poses the country’s coercive family planning policies. He al-
leged that in fall 2003 his girlfriend, Ling Lin, who was then
19 and by law too young to marry, had become pregnant.
When Lin went to a mandatory exam in January 2004, said
Yuan, government officials discovered the pregnancy and
forced her to have an abortion. Six months later Lin skipped
her required follow-up exam, prompting family planning
No. 15-2834 3
agents to visit Yuan’s home looking for her. Yuan allegedly
refused to tell the agents where to find his girlfriend because
he opposed the government’s family planning controls and
was upset about the forced abortion. Afterward the agents
continued harassing him, Yuan said, even “coming to my
workplace and questioning me there.” Yuan said that he
yelled and cursed at the agents, who warned that he would
“suffer serious consequences” if he did not bring his girl-
friend to them within a month.
Then a month later, according to the narrative in Yuan’s
application, the family planning agents visited his parents’
grocery store at 10:00 p.m., while his brother was running
the store. Yuan said he was sleeping in a room above the
store but went downstairs after hearing noise. Several men
were present, and Yuan recognized one of them as an agent
he had argued with at the birth-control office. One man
yelled, “That’s him,” and then two others struck Yuan on the
head and hands with “cleavers.” The attackers fled, Yuan
continued, after his brother ran from the store to get help.
According to Yuan’s application, his brother summoned
their parents. When they arrived and saw his condition,
“they called the police, and the police took me to the
hospital.” Yuan said he had identified his attacker to his
brother and the police, who promised to investigate but
never did, even when pressed by Yuan’s brother and
parents. Yuan added that his parents had been threatened
with jail for falsely accusing a government official. Yuan had
spent two months in the hospital, he said, and then decided
to flee China.
Along with his application, Yuan provided letters from
his brother and parents. His brother’s letter recounts the Oc-
4 No. 15-2834
tober 2004 incident at the family’s grocery store. According
to the letter, a “tall guy” pointed at Yuan and said, “That’s
him!” prompting the others to begin cutting Yuan with
knives. After the assailants had left, the brother says, he
“called the police and my parents to come and hurried my
brother to Lianjiang County Hospital for emergency care.”
Later he learned that the “tall guy” was the officer from the
birth-control office with whom Yuan had argued, but the po-
lice refused to believe this and accused the family of falsely
implicating a government employee. The brother’s letter
states that it took eight months for Yuan to recover.
The parents’ letter similarly recounts the events of Octo-
ber 1, 2004, “the date when our son was almost killed by the
attempted murder initiated by the director of the birth con-
trol office, Wang Dong Ming.” The parents explain that they
had hurried to their grocery store after their other son
phoned, and saw Yuan lying in a pool of blood. Then, the
letter continues, “We called for help and took him to the
emergency and saved his life.” Afterward, the parents add,
they accused Wang of “taking revenge” on Yuan but were
“not only rejected, but also threatened to be put in jail.” Like
Yuan’s brother, the parents assert in their letter that it took
eight months for Yuan to recover from his injuries.
At his final removal hearing in August 2013, Yuan elabo-
rated on the narrative in his application. He testified that he
had been working as an artist in a factory when he fell in
love with Ling Lin, who was studying painting at that same
factory. Lin had moved in with Yuan and his family, and the
couple planned to get married as soon as Lin reached the le-
gal age. As he had said earlier in his application for asylum,
Yuan testified that Lin told him that she had been forced to
No. 15-2834 5
undergo an abortion when her pregnancy was discovered
during the mandatory exam. Because the child had been
conceived illegally outside of wedlock, Yuan said, he paid a
fine of 1,000 RMB, or roughly $150.
About a month later, Yuan continued, Lin had moved
out of his family’s home and moved in with her aunt to
avoid complying with a directive to return for a follow-up
exam after six months. Lin had skipped the exam, Yuan tes-
tified, and then three months later he received a notice say-
ing that his “wife” must appear for her required examina-
tion. When Lin again did not appear, said Yuan, several offi-
cials including one from the family planning office had con-
fronted him at his home in September 2004 and insisted that
Lin must show up the following month. Yuan had replied
that she no longer lived with him (though the men did not
believe him), and he had yelled at them using “words of an-
ger” and accused them of murdering his child. When the IJ
asked Yuan about the allegation in his application that
agents had questioned him at his workplace, Yuan answered
that they had visited the factory once in September 2004 but
he did not see them personally. The IJ asked why, then,
Yuan’s personal statement indicates that he had been “ques-
tioned” and gotten into a verbal altercation at his workplace,
and Yuan responded that the argument had occurred when
the officials visited his home, not the factory.
The next time Yuan was bothered by government offi-
cials, according to his testimony, was on October 1, 2004.
Just as he had stated in his application, Yuan testified that
several men—including Wang, whom he recognized from
the family planning office—had arrived at his parent’s gro-
cery store at 10:00 p.m. and attacked him with knives and a
6 No. 15-2834
stick. His brother had run from the grocery to call his mother
and the police, said Yuan, though it was his mother who had
summoned the police. Once the police had arrived, he stat-
ed, the officers called an ambulance that took him to the
hospital. His brother and mother had followed the ambu-
lance to the hospital, he explained, but did not drive him
themselves. Yuan maintained that he still has scars on his
head and hands, but when he tried showing them to the IJ
and government counsel, the IJ noted for the record that she
“really” could not “tell what it is.”
Once at the hospital, said Yuan, he had received stitches
and an IV. Later on, he said, doctors had taken an X-ray of
his hand and discovered a severed nerve and a “cracked”
bone (though he could not remember if he was given a cast).
When government counsel asked what solution was in the
IV, Yuan answered that he thought “some of them” were
“proteins” because he had lost “a lot of blood.” The
government’s lawyer then demanded to know why Yuan
had not mentioned in his personal statement or testimony
that he had received a blood transfusion and surgery, both
of which are documented in a medical report Yuan had
offered into evidence. Yuan first responded, “They just give
stitches,” and then said, “Right here, the nerve has cut.”
When the government’s attorney pressed him to say
whether the medical report was incorrect, Yuan replied, “I
do not know.”
The government’s attorney also questioned Yuan about
his brother’s whereabouts. Yuan acknowledged that his
brother, too, had been smuggled into the United States and
said he was living in Chicago. Asked by counsel if they lived
together, Yuan said, “No.” When the IJ then joined the ques-
No. 15-2834 7
tioning and asked Yuan where his brother was, Yuan re-
sponded, “Right now, I do not know.” The IJ repeated the
question, and this time Yuan insisted that he did not know
where his brother was, that they talk by phone very seldom,
and that he hadn’t spoken to his brother in about a month.
Again the IJ asked if Yuan’s brother lived with him in Indi-
ana, and this time Yuan replied, “I don’t know where he
working right now.” After more questioning, Yuan finally
acknowledged that his brother did live with him in Indiana,
but explained:
I will hear that you ask where he is right now per-
sonally, so physically where he is right now. I don’t
know where he is physically right now you know.
He working here and there you know. Like me, I
some time working here and there.
….
Yes, yes. We—he live with me but working, he
been working here. He working out of states. He
working other place.
Yuan maintained that he had not spoken to his brother in
“quite awhile,” and said that no one had told him he should
bring his brother to the hearing to testify on his behalf or
that he should update the address in China he included for
his brother in his asylum application.
The IJ denied all relief, reasoning that Yuan had testified
inconsistently on at least four points and thus wasn’t credi-
ble. The IJ explained that, first, Yuan had not disclosed in his
personal statement or testimony that he underwent surgery
and received a blood transfusion in addition to the IV and
stitches. Second, the IJ noted, Yuan had said in his personal
statement that the police took him to the hospital but then
8 No. 15-2834
testified that an ambulance had been called. The IJ added
that the letter from Yuan’s brother says, according to the IJ,
that he took Yuan to the hospital. Third, concerning the al-
leged harassment by agents from the family planning office,
the IJ asserted that Yuan’s testimony that agents had ques-
tioned him at his house contradicted his written account that
agents went to his place of employment and questioned him
there. The IJ noted that in his testimony Yuan had said the
agents spoke only with his supervisor, not him, during a
workplace visit. And fourth, the IJ singled out Yuan’s con-
flicting answers to questions about his brother’s wherea-
bouts, first denying that he knew where to find him, then
admitting that they shared a residence in Indiana.
The IJ further reasoned that Yuan had not introduced ad-
equate evidence to corroborate his claim. The IJ particularly
was troubled by the absence of an affidavit from Ling Lin.
The IJ also characterized Yuan’s corroborating evidence as
conflicting and vague: In the IJ’s view, Yuan’s medical evi-
dence contradicts his personal statement and testimony; his
brother’s letter misled the court into believing that he still
lived in China; and his parents’ letter does not mention Lin,
the harassment at Yuan’s workplace, or the medical treat-
ment Yuan had received at the hospital.
The Board upheld the IJ’s decision, reasoning that there
was “no clear error” in the IJ’s adverse credibility finding.
And without credible testimony, the Board concluded, the
petitioner had failed to sustain his burden of proof for asy-
lum and withholding of removal. The Board did not consid-
er the IJ’s alternative conclusion that Yuan’s claim failed for
lack of corroboration.
No. 15-2834 9
II. Analysis
The parties seem uncertain about the scope of our re-
view. Yuan avoids taking a position, instead stating the ob-
vious point that sometimes we review the Board’s decision
and other times, the IJ’s decision. The government asserts
that we should “primarily” review the Board’s decision and
further implies that, if the IJ’s decision is reviewed at all, we
should limit ourselves to the portion specifically addressed
by the Board (i.e., the adverse credibility finding). In fact,
since the Board endorsed the IJ’s reasoning but did not
adopt the decision itself, we technically review only the
Board’s standalone opinion. See Moab v. Gonzales, 500 F.3d
656, 659 (7th Cir. 2007); see also Krasilych v. Holder, 583 F.3d
962, 966 (7th Cir. 2009).
Factual findings and credibility determinations must be
supported by substantial evidence, Lishou Wang v. Lynch, 804
F.3d 855, 858 (7th Cir. 2015); Tawuo v. Lynch, 799 F.3d 725,
727 (7th Cir. 2015), while legal conclusions are reviewed
de novo, Lishou Wang, 804 F.3d at 858; Antia-Perea v. Holder,
768 F.3d 647, 658–59 (7th Cir. 2014). Yuan’s application was
filed after enactment of the REAL ID Act of 2005, see Pub. L.
No. 109–13, 119 Stat 231, under which an adverse credibility
finding may rest on any inconsistency, whether or not it
“goes to the heart of the applicant’s claim.” See 8 U.S.C.
§ 1158(b)(1)(B)(iii). But the Board and IJs still must distin-
guish between inconsistencies that are material and those
that are trivial. See Tawuo, 799 F.3d at 727; Krishnapillai v.
Holder, 563 F.3d 606, 616–17 (7th Cir. 2009). And reasonable
explanations for discrepancies must be considered. Tarraf v.
Gonzales, 495 F.3d 525, 532 (7th Cir. 2007).
10 No. 15-2834
In finding that Yuan was not credible, the Board focused
on the same four points of inconsistency as the IJ: the scope
of Yuan’s injuries and medical treatment, Yuan’s transporta-
tion to the hospital after the attack, harassment at Yuan’s
workplace, and the whereabouts of Yuan’s brother. We ad-
dress each point in turn.
A. Scope of Yuan’s injuries and medical treatment
Yuan first challenges the Board’s assertion that his testi-
mony about his injuries and treatment after the October 2004
attack contradicts his personal statement and the medical
evidence. The IJ had characterized this purported incon-
sistency as the “most important[]” reason for the adverse
finding, but Yuan argues that his explanation for not fully
recalling and describing his injuries and treatment—his head
injury—was never considered. He further argues that his
testimony was “not limited to his claim to have received an
IV and stitches” and that he “described in detail much of the
additional treatment he required,” leaving no material in-
consistency between his testimony and his statement and
medical documentation.
We don’t see the “inconsistency” between the medical
report and Yuan’s testimony and personal statement. We
note that neither the government nor the Board ever
suggested that the medical record is fabricated, and unless the
mention of “surgery” and a “blood transfusion” in that
report is untrue, the situation really amounts to a claimant
not fully appreciating the extent of his injuries or the precise
medical treatment he received. Why does this imprecision
matter? It might be a different situation if Yuan was accused
of exaggerating his injuries at the hands of the family
No. 15-2834 11
planning agents, but how would he benefit by minimizing
those injuries?
Regardless, Yuan’s testimony that physicians had to
“open” up his hand “and find the veins” because a bone had
been cracked and a nerve severed essentially describes a
“surgery.” And as for omitting the “blood transfusion,”
Yuan did explain that he received an IV (which he believed
contained “proteins”) because he had lost a lot of blood. That
Yuan may not have known the content of the fluids he was
receiving intravenously does not undermine his credibility.
Rather, there are several potential explanations, such as his
head injury (which rendered him unconscious for at least
some of the time he was hospitalized), his lack of
sophistication about medical procedures, and the translation
of both the medical report and Yuan’s testimony from
Chinese to English. See Lishou Wang, 804 F.3d at 858
(concluding that IJ had improperly discredited petitioner’s
testimony based on his “innocent confusion” over name of
medical procedure even though petitioner’s description of
procedure was consistent throughout his testimony);
Kueviakoe v. U.S. Att’y. Gen., 567 F.3d 1301, 1305 (11th Cir.
2009) (rejecting as neither plausible nor material Board’s
finding of inconsistency between petitioner’s use of word
“truck” in his application and “car” in his testimony and
noting that petitioner’s words had been translated to English
on both occasions). In fact, when the subject of his treatment
came up in the first hearing, Yuan stated that he “couldn’t
say what kind of treatment … they gave me because I’m, I’m
not educated enough to understand.” Yuan’s description of
the treatment he received is not inconsistent with how a lay
person might describe a blood transfusion (receiving an IV
of proteins for loss of blood) or minor surgery (cutting open
12 No. 15-2834
a hand and giving stitches), nor did the Board or IJ grapple
with any of these potential explanations.
B. Yuan’s transportation to the hospital after the attack
Yuan next argues that the Board mischaracterized the
record in finding that his testimony was inconsistent with
his documentary evidence regarding how he arrived at the
hospital after his injury. Once again, it is difficult to see any
significant inconsistency; there is no disagreement by the
government that Yuan was transported to the hospital
by someone. In his personal statement Yuan says that
“the police” took him to the hospital, and when he testified
he said that an ambulance was called for him. As Yuan ar-
gues, whether the police or an ambulance took him to the
hospital is irrelevant in light of his larger claim that he was
beaten and slashed by agents from the birth-control office,
prompting his brother and mother to call the police for help.
See Kueviakoe, 567 F.3d at 1305 (noting that use of incon-
sistent terms to describe police vehicle was immaterial, espe-
cially where “all of the other pertinent information remained
the same”).
Moreover, the IJ wrongly asserted that the letters from
Yuan’s brother and parents further contradict his accounts of
how he reached the hospital. According to the IJ, Yuan’s
brother said that he took Yuan to the hospital, but, in fact,
Yuan’s brother wrote, “I called the police and my parents to
come and hurried my brother to Lianjiang County Hospital
for emergency care.” Yuan’s parents similarly stated, “We
called for help and took him to the emergency aid and saved
his life.” Both of these letters have been translated from Chi-
nese to English, so we think the IJ should have been cautious
about an overly technical parsing of language. See Kueviakoe,
No. 15-2834 13
567 F.3d at 1305 (noting that no important inconsistency
could be found based on word choice when petitioner’s
words were translated from French to English). In their let-
ters neither Yuan’s brother nor his parents state that they
personally drove Yuan to the hospital. Rather, the state-
ments suggest that the family simply made sure that Yuan
was taken to the hospital—a reading that is consistent with
Yuan’s explanation that his family called the police, who
summoned the ambulance, and then the family followed the
ambulance as it transported Yuan to the hospital. Once
again, the salient point is that no one disputes that Yuan’s
injuries required emergency hospitalization. That greater de-
tail is provided in live testimony than was included in an
asylum application is not a reason to reject a petitioner’s tes-
timony as not credible. See Tarraf v. Gonzales, 495 F.3d 525,
532 (7th Cir. 2007); Kllokoqi v. Gonzales, 439 F.3d 336, 342
(7th Cir. 2005)
C. Yuan’s statements about harassment by authorities at his
workplace
Yuan next challenges the Board’s conclusion that his tes-
timony regarding harassment by family planning agents at
his workplace was inconsistent with his personal statement.
The third paragraph of Yuan’s personal statement, as
amended during the final hearing, reads as follows:
However, in September 2004, agents came again to
my home to check why she didn’t go to her exami-
nation. When they couldn’t find her they came to
me to find out where she went, but I refused to tell
them as I was opposed to the government’s coer-
cive family controls and I was upset over what they
did to my fiancée. The agents believed that I knew
where she was and although they left that day, they
14 No. 15-2834
continued to harass me by coming to my workplace
and questioning me there as well. I became angry
with them because my girlfriend’s issue had noth-
ing to do with me and then I accused them of kill-
ing my child and now maybe they want to kill my
fiancée, too. They cursed me and I cursed them
back. Then they warned me that if I did not bring
her to them in a month that I would suffer serious
consequences.
Yuan argues that his testimony at the hearing—that he
had not actually spoken to the officials when they came to
his workplace and that his account of becoming angry and
cursing the officials referred to their visit to his home, not his
workplace—clarified, rather than contradicted, his personal
statement. Given the placement of the reference to the work-
place visit in the middle of a paragraph that primarily is
about the officials’ visit to his home, it seems plausible that
the cursing and yelling describes what happened at his
home, not work. Moreover, we don’t perceive an incon-
sistency between saying, “Government officials harassed me
by coming to my work and asking questions,” and Yuan’s
explanation. We can easily imagine a worker describing as
harassment the presence of government officials at his
workplace asking about him. Even if the ambiguity is re-
solved as an inconsistency, the inconsistency cannot support
a general finding that Yuan isn’t credible. See Hongting Liu v.
Lynch, 788 F.3d 737, 742 (7th Cir. 2015) (concluding that peti-
tioner’s technically inconsistent testimony regarding timing
of her visa and passport applications did not support ad-
verse credibility finding).
No. 15-2834 15
D. Yuan’s testimony about his brother’s whereabouts
Last, Yuan contends that the fourth inconsistency
identified by the IJ—the whereabouts of his brother—was
explained by his testimony that he believed he was being
asked where his brother was at that moment rather than
where his brother was living. Yuan does not argue that his
testimony was consistent, and for good reason. His
testimony on this point is confusing, if not blatantly
inconsistent. While this may be the strongest evidence
supporting a finding that Yuan was not entirely credible as a
witness, the Board did not make any effort to explain why
Yuan’s evasiveness about his brother was sufficiently
material to warrant discrediting his entire claim for relief.
See Hongting Liu, 788 F.3d at 742; see also Krishnapillai,
563 F.3d at 617 (noting obligation, even after REAL ID Act,
to distinguish between inconsistencies that are material and
those that are not); Kadia, 501 F.3d at 822 (same). And, as
Yuan argues, his explanation was not even considered. At
least a plausible reading of the hearing transcript is that
Yuan was confused about what exactly he was being asked,
and his responses indicate that while his brother technically
lived with him in Indiana, he often left their home for
lengthy periods to seek employment elsewhere.
Finally, Yuan argues that the Board erred as a matter of
law by not considering the corroborating evidence he pre-
sented. Yuan also disputes the IJ’s faulting him for not
providing a letter from his girlfriend. Since the Board did not
address the IJ’s finding regarding corroborating evidence,
we will not assess that question in the first instance. Indeed,
the government has specifically asked that, if we overturn
16 No. 15-2834
the adverse credibility finding, we remand the case to the
agency to assess Yuan’s eligibility on the merits.
III. Conclusion
We conclude that the purported inconsistencies regard-
ing Yuan’s injuries and time in the hospital, his method of
transportation to the hospital, and whether or not govern-
ment officials questioned him at his workplace are either so
easily explained or so trivial as to call into doubt the Board’s
decision. And even though Yuan acknowledges that his tes-
timony regarding his brother’s whereabouts was incon-
sistent, this lone inconsistency is not sufficiently material to
warrant an adverse credibility finding under the REAL ID
Act. Thus the petition for review is GRANTED.