Lin v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAO LU LIN, 
Petitioner, No. 04-70422
v.
 Agency No.
A79-760-825
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 18, 2005—Honolulu, Hawaii
Filed January 12, 2006
Before: Michael Daly Hawkins, M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge McKeown
387
390 LIN v. GONZALES
COUNSEL
Benjamin V. Chen, Benjamin V. Chen, AAL, LLLC, Hono-
lulu, Hawaii, for appellant Dao Lu Lin.
William C. Minick and Barry J. Pettinato, Office of Immigra-
tion Litigation, U.S. Department of Justice, Washington,
D.C., for appellee Alberto R. Gonzales, Attorney General.
OPINION
McKEOWN, Circuit Judge:
The question we consider in this asylum case is the nature
of evidence required to support an Immigration Judge’s (“IJ”)
adverse credibility finding based on documentary evidence.
We reiterate the longstanding principle that such an adverse
credibility finding must be supported by substantial evidence.
The IJ’s speculation as to what an official document should
look like, conjecture about the significance of the missing
details in the document, and musings as to format of the docu-
ment cannot be regarded as “reasonable, substantial, and pro-
bative evidence” required by the Supreme Court in INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992).
Here, the IJ denied Dao Lu Lin’s (“Lin”) asylum applica-
tion not because she thought Lin lacked credibility or that Lin
told an implausible story. Rather, the IJ denied the application
because she was suspicious about the official documents sub-
mitted by Lin. We readily acknowledge that an IJ need not
accept all documents as authentic nor credit documentary sub-
missions without careful scrutiny. But the rejection must be
premised on more than a guess or surmise. A review of this
record reveals that the IJ’s suspicions derive from nothing
more than her personal and subjective view as to what the
documents should look like. Without any objective support in
LIN v. GONZALES 391
the record, these suspicions do not amount to substantial evi-
dence. We grant the petition and remand to the Board of
Immigration Appeals (“Board”) for review of the IJ’s discre-
tionary denial of asylum.
BACKGROUND
Lin is a native citizen of the People’s Republic of China.
While living in a rural area of a small island called Dongqiang
Town in Pingtan County, China, Lin met his wife, Yu Lan
Chen (“Chen”). Their relationship developed quickly and
Chen unexpectedly became pregnant with their first child,
which prompted the couple to consider getting married.
Because Chen had not reached the legal age for marriage, Lin
contacted a family friend at the marital registration office of
Dongqiang Town to falsify Chen’s age. As a result, the couple
married and received a “Marriage Certificate.”
After they were married, Lin and Chen had three children.
Within a month after the birth of their first child, a girl, the
family planning unit of Dongqiang Town assessed the couple
a fine for having failed to obtain permission to conceive, oth-
erwise known as an “unplanned birth.” The town officials
then detained Lin for seven days until his family was able to
pay the fine.
Shortly thereafter, family planning officials required Chen
to have an intrauterine device (IUD) and periodic gynecologi-
cal examinations in accordance with local family planning
regulations. Lin and Chen were unhappy with this turn of
events as they wanted to have another child. To remedy the
situation, the couple hired a private physician to remove the
IUD, after which they remained in hiding with family mem-
bers until their second child was born. This child was also a
girl. Due to the stringent birthing laws and the couple’s desire
to have a boy, they gave the child to the midwife so that she
could find adoptive parents. Lin later learned that the child
was adopted by a rich couple in Beijing and that the child was
392 LIN v. GONZALES
receiving an education. During this period, Chen missed her
mandated gynecological examinations. In response, family
planning officials confiscated the couple’s furniture and
detained Lin’s mother for eighteen days.
While hiding out, Lin and Chen decided to have a third
child with the hope that it would be a boy. This time they
were successful. The couple returned to their home village,
where they lived with Chen’s family. Upon discovering their
return and the “unplanned” baby boy, the family planning
officials arrested Chen, forced her to have a sterilization pro-
cedure, and detained Lin for seven days. The family planning
unit issued a “Family Planning Operation Certification” docu-
menting Chen’s sterilization and a “Notice of Fine,” giving
Lin’s family seven days to pay a very substantial fine.
Without the ability to pay such a large fine, the couple fled
the village with their two children, after which the family
planning officials destroyed their home and furnishings. The
family moved from place to place, trying to make a living.
While working on a Taiwanese fishing vessel, Lin made his
way to the United States. Lin was eventually arrested and
turned over to United States immigration officials.
Lin applied for asylum, claiming that his wife was forcibly
sterilized as a consequence of multiple violations of China’s
birthing laws. The IJ found that Lin’s “testimony was consis-
tent with his written application. The fact that he was consis-
tent with his written application helps [Lin] establish that
what he is saying is truthful.” The IJ even gave Lin “the bene-
fit of the doubt” as to his oral testimony.
However, the IJ found suspicious and discounted the proba-
tive value of three documents: (1) the Marriage Certificate
issued by Pingtan County Dongqiang People’s Government;
(2) the Family Planning Operation Certification issued by the
Pingtan County Family Planning Bureau documenting that
Chen underwent a female sterilization operation; and (3) the
LIN v. GONZALES 393
Notice of Fine from the Pingtan County Dongqiang Town
People’s Government for the unplanned birth of their son.
After reviewing and weighing this documentary evidence,
particularly the Family Planning Operation Certification, the
IJ denied Lin’s asylum application, stating, “The Court is not
convinced by this evidence that [Lin] has established that his
wife was forcibly sterilized. The evidence taken as a totality
does not appear credible.” The IJ also denied, in the alterna-
tive, Lin’s application as a matter of discretion because he had
given his second child up for adoption at a time that the State
Department reported that “conditions were not good for chil-
dren in Chinese orphanages [and that] kidnapping and buying
and selling of children persist[ed] in rural areas despite gov-
ernment efforts to prevent this.” The IJ went on to state that
“there does not seem to be any reason why [Lin and his wife]
could not have kept that child and continued to live [with rela-
tives], as they did, until their greatly desired son was born.”
On appeal, the Board affirmed the IJ’s denial of relief stat-
ing that “the inconsistencies and omissions in questionable
documents submitted by [Lin] are specific, cogent reasons for
the [IJ]’s final credibility finding.” The Board did not address
the IJ’s discretionary denial of relief.
ANALYSIS
In denying Lin’s asylum application, the IJ observed that
“[t]he crux of this case centers upon what happened to his
wife as he described it. In short, he states that his wife was
forcibly sterilized when local officials learned of the existence
of the [unplanned births of his children].” The IJ correctly
pinpointed the issue—if Lin can prove that his wife was forci-
bly sterilized, he is automatically eligible for asylum and
withholding of removal. See 8 U.S.C. § 1101(a)(42); Qu v.
Gonzales, 399 F.3d 1195, 1198-99, 1203 (9th Cir. 2005)
(holding that “one who has suffered involuntary sterilization,
either directly or because of the sterilization of a spouse, is
394 LIN v. GONZALES
entitled, without more, to withholding of removal”); He v.
Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003) (holding that a
husband is “automatically eligible for asylum” based on his
wife’s involuntary sterilization).
I. ADVERSE CREDIBILITY DETERMINATION
To prove his claim, Lin submitted his application with sup-
porting documentation and testified at the hearing. Nothing
about his story was incredible or unbelievable. The IJ noted
that the consistency between his application and testimony
“helps . . . establish that what he is saying is truthful.” The IJ
did not, therefore, challenge Lin’s application on the basis of
some disbelief in Lin or his account of events. She focused on
the documentary evidence and concluded that she was not
convinced “that his wife was forcibly sterilized. The evidence
taken as a totality does not appear credible.”
[1] Although an IJ may deny an asylum application based
on a finding that the documentary evidence is not credible,
there are baseline requirements to sustain such a denial. For
example, the adverse credibility finding must be supported by
substantial evidence, which is satisfied if the IJ offers “a legit-
imate[,] articulable basis” for the finding and “a specific,
cogent reason for any stated disbelief.” Wang v. INS, 352 F.3d
1250, 1253 (9th Cir. 2003); Shah v. INS, 220 F.3d 1062, 1067
(9th Cir. 2000). More specifically, an adverse credibility find-
ing cannot rest on mere speculation or conjecture, such as the
IJ’s bare subjective opinion about the authenticity or probity
of documents. See Wang, 352 F.3d at 1254; Shah, 220 F.3d
at 1071. Rather, the record must include some “evidence
undermining their reliability,” such that a reviewing court can
objectively verify whether the IJ has a legitimate basis to dis-
trust the documents. Wang, 352 F.3d at 1254. Here, the IJ dis-
counted the probative value of the Family Planing Operation
Certification, the Marriage Certificate, and the Notice of Fine
on the basis of speculation and conjecture and without support
in the record. We address each document.
LIN v. GONZALES 395
A. FAMILY PLANNING OPERATION CERTIFICATION
The main target of the IJ’s suspicions was the Family Plan-
ning Operation Certification, which documented Chen’s
forced sterilization. The IJ found this document “suspect
because the resident identification number is blank. There is
also no evidence that [Lin’s] wife is employed and, therefore,
it is difficult to see why she would have such a certification
issued.” The IJ went on to explain:
But the Court’s primary concern is that this is sup-
posed to be an official document and yet her identifi-
cation and even her birth date is not listed since the
document simply states that she is 25 years old. . . .
In conclusion, although there is some probative
value for the family planning operation certification,
the Court must find this probative value to be low
since there has been no forensic analysis and the
document itself is incomplete. The Department of
State has in the past cautioned that at times docu-
ments from South China are not genuine.
[2] The difficulty with this analysis is that it rests on specu-
lation as to what the document should look like and whether
the absence of a few details renders a document suspect.
Without some evidence in the record, other than the IJ’s bare
personal view, we have no way of knowing whether the IJ’s
suspicions are simply conjecture or legitimate concerns bear-
ing on the reliability of the document. Here, as in Wang,
“[t]he record does not furnish any evidence that . . . authentic
Chinese sterilization records ordinarily supply the dates and
other details omitted in [the petitioner’s] document. While we
understand the IJ’s suspicion, her basis for questioning these
documents ‘amounts to nothing more than a subjective view
of what these documents would look like.’ ” Wang, 352 F.3d
at 1255 (quoting Shah, 220 F.3d at 1071) (internal editing
marks omitted). Such a “non-evidence-based assumption can-
396 LIN v. GONZALES
not support an adverse credibility determination.” Ge v. Ash-
croft, 367 F.3d 1121, 1126 (9th Cir. 2004).
We are not unsympathetic to the IJ’s desire to discern the
authenticity of this certification because it serves as a central
piece of evidence. We also acknowledge the State Depart-
ment’s caution that at times documents from South China are
not genuine. Nonetheless, these concerns do not obviate the
need for actual evidence rather than personal speculation by
the IJ.
We are also mindful that an IJ may develop an expertise by
repetitive examination of particular documents or may
develop familiarity with the document practices of certain for-
eign regions. We do not endeavor here to articulate the
parameters of such expertise or the acceptable reach of judi-
cial notice. It is sufficient to note that any such expertise
should, at a minimum, be articulated on the record so that the
reviewing court can be confident that the IJ’s determinations
are based on objective criteria particularized to the document.
The IJ was suspicious in part because the document “is sup-
posed to be an official document” yet had missing details. To
be sure, informality or incompleteness in an official document
could indicate that it is a forgery. On the other hand, what if
the document format is not atypical for the issuing agency, a
local family planning bureau located on a small rural island
in China?1 It strains credulity, for example, to conclude that
a document is untrustworthy simply because it lists a person’s
1
The Marriage Certificate and Notice of Fine were similarly discounted
by the IJ for having missing details, such as the resident identification
numbers. These documents were issued under the authority of the same
local Pingtan County government. While speculation may lead one to con-
clude that the missing details are indicative of fraud, another inference is
that these documents are genuine because they are consistent with one
another, all missing similar details, and all issued by agencies under the
same local county government. Nothing in the record, however, allows the
IJ or a reviewing court to discern which inference is correct.
LIN v. GONZALES 397
current age rather than their birth date. The reviewing court
should not be in a position of speculating about the IJ’s specu-
lations.
The Eighth Circuit’s decision in Bropleh v. Gonzales, 428
F.3d 772, 777 (8th Cir. 2005), illustrates how judicial experi-
ence combined with obvious warning signs of forgery, when
articulated on the record, may satisfy the substantial evidence
requirement. In Bropleh, the court upheld an IJ’s determina-
tion that a passport had been purposefully altered to conceal
the denial of a United States visa. The court noted that the
record contained adequate support for this determination,
including obvious burn marks on the passport in the area of
the alteration and the IJ’s expertise from reviewing hundreds
of passports:
The IJ observed that the burn-marks on Bropleh’s
passport were “spectacularly inconsistent,” thereby
indicating that Bropleh had tampered with it. . . . The
judge stated he had reviewed “hundreds” of pass-
ports, and was familiar with the precise place a
stamp concerning a visa application would be
placed. Given Bropleh’s testimony that he had not
applied for a visa to the United States, a forensic
expert was not required to find it suspicious that the
passport had been selectively burned in the area
where evidence of an application would be found.
Accordingly, the record indicates the judge made
reasonable inferences from the evidence presented in
concluding that the passport had been purposefully
altered and that this reflected adversely upon Bro-
pleh’s credibility.
Id.
[3] In contrast to the situation in Bropleh, the IJ in Lin’s
case did not indicate that the missing details were unusual or
indicative of forgery based upon her review of numerous
398 LIN v. GONZALES
Family Planning Operation Certifications or other documents
from the Pingtan Family Planning Bureau. Nor did the IJ
point to some other obvious discrepancy or indicia that would
allow one to discredit the document based on logic or com-
mon sense. Although the burden of proof rests with the peti-
tioner, the government did not put on a single witness or offer
any evidence regarding the reliability of these documents or
the document practices of the local issuing entities. In other
words, “[t]here is no evidence in the record to indicate that the
[document is] anything but what [it purports to be].” Shah,
220 F.3d at 1071.
[4] Our insistence on evidentiary support for a finding of
lack of credibility with respect to an official document is in
line with the views of our sister courts. For example, in Chen
v. U.S. Department of Justice, 426 F.3d 104, 115 (2nd Cir.
2005), the Second Circuit held that the record was insufficient
to support an IJ’s adverse credibility findings concerning birth
control certificates submitted by an asylum applicant. The IJ
“found with regard to [the petitioner’s] claim for relief under
family planning that [his] presentation was not credible due to
the documents that he had provided. In particular the IJ noted
that the numbers on the birth control certificates that [the peti-
tioner] submitted were out of sequence.” Id. at 110 (internal
quotation marks omitted). On appeal, the court held that this
adverse credibility finding “was grounded solely on specula-
tion and conjecture” and that the government did not create a
record sufficient to support the IJ’s adverse credibility find-
ing. Id. at 115.
[5] The IJ’s other bases for discounting the probative value
of the certificate are similarly without support. One of the ref-
erenced deficiencies was that “there has been no forensic
analysis.” Our precedent on this point is clear: “[m]ere failure
to authenticate documents, at least in the absence of evidence
undermining their reliability, does not constitute a sufficient
foundation for an adverse credibility finding.” Wang, 352
F.3d at 1254. It is difficult to imagine what the IJ meant by
LIN v. GONZALES 399
her passing reference to the lack of forensic evidence. Surely
an asylum applicant does not have an affirmative duty to have
a document examiner authenticate every piece of documen-
tary evidence. Indeed, the IJ did not conclude that the docu-
ment was a forgery, and a forensic examiner could hardly
address the IJ’s real concern—lack of certain details. It is true
that such an examination could be helpful in some situations
to establish an applicant’s claim (especially if there is objec-
tive evidence undermining the reliability of the document),
but the failure to offer expert authentication of an official doc-
ument cannot itself be the basis for reasonable suspicion. Id.
[6] The IJ also discredited the Family Planning Operation
Certification because there was “no evidence that [Lin’s] wife
is employed and, therefore, it is difficult to see why she would
have such a certification issued.” This assertion is based on
nothing more than the IJ’s conjecture about the practices of
the Pingtan Family Planning Bureau. See Shah, 220 F.3d at
1071.
[7] Finally, the IJ’s reference to the generalized State
Department report’s warning of forgeries from South China is
informative but not a sufficient basis to discredit the Family
Planning Operation Certification, particularly since the State
Department report was not tied to the circumstances of Lin’s
case. See id. at 1069; Wang, 352 F.3d at 1254. Although a
State Department report on widespread forgery within a par-
ticular region may be part of the IJ’s analysis, speculation that
a document is unreliable merely because other documents
from the same region have been forged in the past can hardly
be regarded as substantial evidence.
B. MARRIAGE CERTIFICATE AND NOTICE OF FINE
[8] The IJ’s suspicions regarding the Marriage Certificate
and Notice of Fine suffer from many of the same deficiencies
as the Family Planning Operation Certification. As to the
Marriage Certificate, the IJ stated that it was “not a very reli-
400 LIN v. GONZALES
able piece of evidence” because “the couple’s identity num-
bers are not listed.”2 Regarding the Notice of Fine, the IJ
stated that it “does not give an address for the couple nor their
registration numbers. In addition this notice is not on a pre-
printed form as is often seen such as the one on the family
planning operation certification.”
[9] Nothing in the record, other than the IJ’s unsupported
subjective view, suggests that the missing details or format of
the documents are unusual or indicative of a trumped-up doc-
ument. The corollary to the IJ’s position is that if every item
was filled in, then the document would appear authentic. This
approach is, in fact, counterintuitive. Someone wanting to
forge a document would likely want to make sure to dot every
“i” and cross every “t”—or at least the equivalent in Chinese
—to make the document appear as complete as possible. On
the other hand, bureaucracy does not always yield perfect
results, and it is equally likely that a document missing a few
details is authentic and represents the reality of a clerk pro-
cessing large numbers of documents. The point is that we do
not know the answer to this quandary and speculation cannot
be used to fill in the blanks.
[10] The condemnation of the Notice of Fine not being on
a pre-printed form is a perfect illustration of conjecture with-
2
The IJ also mentioned that the birth date listed for Lin’s wife was
inconsistent with another document. Lin explained that the Marriage Cer-
tificate contained an inaccurate date because his wife was below the legal
age of marriage and thus the certificate needed to reflect an earlier date of
birth. The IJ did not explain how this inconsistency could bear negatively
on the crux of the asylum claim, i.e., the forced sterilization. Such a minor
inconsistency, especially when adequately explained by the applicant, can-
not form the basis of an adverse credibility determination. Shah, 220 F.3d
at 1068 (“[W]e will not uphold an adverse credibility finding unless the
IJ or BIA specifically explains the significance of the discrepancy or
points to the petitioner’s obvious evasiveness when asked about it. If dis-
crepancies ‘cannot be viewed as attempts by the applicant to enhance his
claims of persecution, [they] have no bearing on credibility.’ ”) (second
alteration in original) (citation omitted).
LIN v. GONZALES 401
out evidence. Because the Family Planning Operation Certifi-
cation is on a pre-printed form, the IJ hypothesized that such
a pre-printed form is expected for the Notice of Fine. Maybe,
maybe not. That conclusion relies solely on the IJ’s imagina-
tion of what a “fine” document would look like and, most
likely, on an American-based view of government forms.
Absent any evidence, how can one reasonably conclude that
the fine would be on a standard form? The fine was issued by
a rural authority and we have no way of divining from the
record whether this type of document is typically preprinted
in China generally, let alone in this rural venue. Nor did the
IJ explain how her suspicions regarding these missing details
reflected on the credibility of Lin’s claim that his wife was
forcibly sterilized. See Shah, 220 F.3d at 1068 (“[T]he IJ gave
no specific indication as to why the discrepancy is significant.
In fact, neither the IJ nor the BIA explained why Mrs. Shah
would [include the discrepancy]. We cannot affirm the credi-
bility determination on this basis.”)
[11] Aggregating the suspicions as a “totality,” to use the
IJ’s term, does not salvage the adverse credibility finding.
Stacking one suspicion or conjecture on top of another simply
extends but does not strengthen the flimsy house of cards. If
one suspicion cannot meet the substantial evidence standard,
two are no better. The record lacks “a legitimate articulable
basis,” such that we can verify the IJ’s “specific, cogent rea-
son for any stated disbelief.” Wang, 352 F.3d at 1253.
II. DISCRETIONARY DENIAL OF ASYLUM
Lin also challenges the IJ’s discretionary denial of asylum.
Because this issue was not addressed by the Board, remand is
appropriate. INS v. Ventura, 537 U.S. 12 (2002).3
3
We recognize, as did the IJ, that “asylum is rarely denied as a matter
of discretion. . . .” We also note that the grounds for her discretionary
denial appear to suffer from the same sort of unsupported and unparticu-
larized speculation discussed with regards to her adverse credibility find-
ing. We remand to the Board, however, to consider the discretionary
denial of asylum.
402 LIN v. GONZALES
PETITION GRANTED; REMANDED to the Board to
review the IJ’s discretionary denial of asylum.