Lin Quan v. Alberto F. Gonzales , 428 F.3d 883 ( 2005 )

WHALEY, District Judge:

Petitioner, Lin Quan, and her husband, Linsheng Li,¹ natives and citizens of China, petition for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an immigration judge’s denial of her application for asylum. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence. Abebe v. Ashcroft, 379 F.3d 755, 758 (9th Cir.2004). We grant the petition for review, vacate and remand.

I

Petitioner Quan’s opening brief includes a request for independent relief for Linsh-eng Li. The brief contends that the appeals of Quan and her husband, Linsheng Li, have been consolidated. Under Fed. R.App. P. 3(b)(2), “[w]hen the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals.” No such consolidation has occurred. Instead, the petition of Linsheng Li v. Ashcroft, Case No. 03-70631, was dismissed on November 26, 2003, for failure to file an opening brief pursuant to Ninth Circuit Rule 42-1. No motion was filed to reopen the appeal.² Accordingly, the cases of Lin Quan and Linsheng Li have not been consolidated for appeal, and only the petition of Lin Quan is properly before this court.

II

The Respondent argues that the Court should refuse to consider the Petitioner’s opening brief because it fails to cite to the 896-page administrative record, in violation of Fed. R.App. P. 28(a)(9)(A), which provides that the appellant’s brief must include “citations to the authorities and parts of the record on which the appellant relies.”

We are sympathetic to the Respondent’s argument. “[W]hen an appellant has approached our rules with such insouciance that we cannot overlook its heedlessness, we have not hesitated to strike an appellant’s briefs and dismiss the appeal.” Dela Rosa v. Scottsdale Mem’l Health Sys., Inc., 136 F.3d 1241, 1243 n. 1 (9th Cir.1998) (citations and quotations omitted); see also Mitchel v. General Elec. Co., 689 F.2d 877, 878 (9th Cir.1982) (dismissing case where appellant failed to cite to excerpts of record).

Because we have conducted our own independent review of the administrative record, we do not find it necessary to impose sanctions in this case. We do, however, admonish counsel of record that “attorneys should accept the responsibility of presenting an appeal of professional quality, which necessarily includes full compliance with the rules of court for the Ninth Circuit.” Dela Rosa, 136 F.3d at 1244.

Ill

The IJ issued an adverse credibility finding, citing numerous bases, falling into roughly five categories: (1) the date Quan began practicing Christianity; (2) the date Quan told her husband she was practicing Christianity; (3) where Mr. Li resided during his father’s illness; (4) Quan’s arrest; and (5) her release on bond. The IJ’s adverse credibility finding must be supported by “a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir.2004) (citations and quotations omitted).

First, the IJ found that Quan’s testimony about first “joining Christianity” in 1996 was not credible, because her husband testified that he told Quan about his Christian beliefs at the time of their marriage.³ Because Mr. Li never testified that his wife began practicing Christianity prior to 1996 (at most, he stated she believed in Jesus Christ at an earlier date), there was no true inconsistency. While the testimony may have been unclear, “unclear testimony may not serve as substantial evidence for an adverse credibility finding when an applicant is not given the chance to attempt to clarify his or her testimony.” Guo, 361 F.3d at 1200 (citing He v. Ashcroft, 328 F.3d 593, 602 (9th Cir.2003)).

Second, the IJ noted a discrepancy between Quan’s account that she informed her husband of her home church participation in early or late July 1996, and Mr. Li’s testimony that he remembered learning of her participation at his father’s funeral on August 25, 1996. Mr. Li stated that he did not notice his wife’s participation at an earlier date because he was busy with work and was often away from home.⁴ Even assuming that the IJ was correct in finding that there was a discrepancy regarding the timing of her participation in the home church, the discrepancy was only of one to one-and-a-half months. “[M]inor discrepancies in dates that ... cannot be viewed as attempts by the' applicant to enhance h[er] claims of persecution have no bearing on credibility.” Damaize-Job v. INS, 787 F.2d 1382, 1337 (9th Cir.1986); see also Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986) (reversing adverse credibility determination based on “trivial errors” about date the petitioner joined a paramilitary group).

Third, the IJ found that Quan’s testimony was not credible because she testified that her husband was living at “her father-in-law’s home” while Mr. Li testified that he was staying “at his brother’s share at the hospital.” The record, however, is devoid of any reference to Mr. Li staying “at his brother’s share at the hospital,” as noted by the IJ. Even if an inconsistency were deemed to exist, it did not go to the heart of the asylum claim. See, e.g., Ke-bede v. Ashcroft, 366 F.3d 808, 811 (9th Cir.2004) (finding testimony regarding the petitioner’s brother’s place of residence was minor and based on witnesses’ difficulties with English). There is no dispute that Mr. Li was not residing at his home during his father’s illness, and this is the only issue marginally relevant to Quan’s claim.

Fourth, the IJ found that Quan’s testimony that her home was raided and she was arrested after participating in so few meetings was not plausible. The IJ explained that

[i]n a country the size of China, for a person to be so unlucky to have just joined a small group of seven or eight according to her testimony, conduct four secret meetings in homes not always her home, and then be arrested is highly improbable and at a minimum implausible. Furthermore, the fact that she explained that the local committee was with the arresting officials does not diminish this implausibility.

We find that this conclusion was not supported by the record. Quan testified that she attended ten meetings, not four, and that of these meetings, five were held at her home. Moreover, the IJ’s finding that due to the “size of China” Quan would not be found and arrested after five months of participation in a home church is speculation. An inference of a country’s police capabilities cannot be drawn merely from its geographical size. See Guo, 361 F.3d at 1199 (“Conjecture and speculation can never replace substantial evidence as the basis for an adverse credibility finding.”) (citations omitted). Further, the IJ’s disregard of the presence of a member of the Neighborhood Committee, Ms. Jian, at Quan’s arrest was not supported by coherent reasons.- Quan’s testimony that she personally knew Ms. Jian, that Ms. Jian was affiliated with the Chinese government, and that Ms. Jian knew where she lived, directly impacted the plausibility of her arrest. The IJ, however, did not provide a coherent reason for disregarding these facts. See id.

Finally, the IJ focused on Quan’s account of where her mother obtained the 3,000 RMB needed for her bail on October 27, 1996. Quan testified that her mother made the withdrawal from her savings bank on Sunday, October 27,1996. The IJ found it implausible that banks in China would be open seven days a week. There is no evidence in the record that Quan’s mother’s savings bank was not open on Sunday. For the IJ to come to this conclusion, he had to assume facts not in evidence. See id.⁵

For the above reasons, we find that the IJ’s adverse credibility finding was not supported by substantial evidence. Because we find that the IJ’s adverse credibility finding is not supported by substantial evidence, we accept Quan’s testimony as true for the purposes of the remaining analysis. See Wang v. Ashcroft, 341 F.3d 1015, 1023 (9th Cir.2003).

IV

The IJ found that Petitioner Quan failed to demonstrate that she was persecuted by Chinese authorities. To demonstrate eligibility for asylum, an applicant must establish “either past persecution or a well-founded fear of present persecution on account of [a protected ground].” Mejia-Paiz v. INS, 111 F.3d 720, 723 (9th Cir.1997) (quotations omitted); 8 U.S.C. § 1101(a)(42)(A). We review the IJ’s determination for substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 481-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The IJ’s factual findings overlook or significantly understate the treatment Quan endured. The IJ stated that the Chinese authorities “pulled [Quan’s] hair” while she was in detention; however, Quan testified that her interrogator “pulled [her] head and kept shaking [her] head and push [her] head.” Quan described her treatment-as a “beat[ing].”

The IJ also found that Quan’s electrocution with a rod was not sufficient to present a case of persecution, because she did not report any resulting “medical attention or sustained injury.” Using an electrically-charged baton on a prisoner, however, may constitute persecution, even when there are no long-term effects and the prisoner does not seek medical attention. See Guo, 361 F.3d at 1198 (officer used electrically-charged baton to subdue petitioner and held his arms and kicked his legs causing him to fall); see Mihalev v. Ashcroft, 388 F.3d 722, 730 (9th Cir.2004) (reviewing the findings of Guo and noting that “[t]here is no suggestion in Guo that the petitioner was significantly injured as a result of being hit in the face seven or eight times and beaten with a plastic pole”). Moreover, the record demonstrated that Quan did suffer sustained injury from the electric shock. She testified that as a result of her treatment, she experienced a severe headache, was very dizzy, had blurry vision, was perspiring, and was barely conscious. She testified that upon returning home, she was paralyzed with fear, and suffered a severe headache and weakness.

The IJ’s opinion also omits discussion of Quan’s testimony that she was fired from her job as a result of her religious association. See Popova v. INS, 273 F.3d 1251, 1258 (9th Cir.2001) (finding that applicant was persecuted on account of. religion where she was “threatened by police officers at [her place of employment], who said she would be fired if she did not change her [Christian] name”).

Accordingly, the record compels a finding that Petitioner Quan suffered past persecution.

V

After finding that the Petitioner was not credible and did not experience past persecution, the IJ went on to find that the Petitioner did not have a well-founded fear of future persecution. To qualify for asylum based on the well-founded fear of future persecution, the applicant’s fear “must be both subjectively [genuine] and objectively reasonable.” Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003) (alteration in original) (quotations and citations omitted).

Upon a finding of past persecution, the Petitioner is presumed to have a well-founded fear of future persecution on account of her religious beliefs. Mam-ouzian v. Ashcroft, 390 F.3d 1129, 1135 (9th Cir.2004). The government may rebut this presumption by showing “by a preponderance of the evidence that country conditions have changed or that relocation is possible,” thus putting into question the petitioner’s well-founded fear. Id. Where the government has failed to argue, either in its submissions to the IJ or in its briefs before this panel, for the existence of changed country conditions, we need not remand to the IJ but, rather, may determine on our own that the presumption is not rebutted and, therefore, that the Petitioner is eligible for asylum. Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir.2004) (suggesting that, under such circumstances, it would be “exceptionally unfair” to give the government another opportunity to present such information); Baballah v. Ashcroft, 367 F.3d 1067, 1078 & n. 11 (9th Cir.2004) (same). We so hold.

The IJ did not apply the “past persecution” presumption but, instead, made independent findings that Petitioner failed to demonstrate a well-founded fear of future persecution. We review the IJ’s decision on a substantial evidence standard. Mam-ouzian, 390 F.3d at 1135 (citing Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir.2004)).

The IJ’s opinion radically misconstrued the standard of “well-founded fear of future persecution.” There is no requirement that the Petitioner show that “every single” practicing Christian in her home country is persecuted as a matter of “pattern and practice.” No applicant would be able to meet this standard. This court has held that a petitioner need only show a subjective fear of persecution that is objectively reasonable; and “even a ten percent chance of persecution may establish a well-founded fear.” Khup, 376 F.3d at 904.

“In general, an alien satisfies the subjective component of the well-founded fear test by testifying credibly about his fear of future persecution.” Mamouzian, 390 F.3d at 1136. The Petitioner testified that, even after her departure from China, the police continued to monitor her communications with her father, and that she feared she would “be locked up and beaten” if forced to return. The IJ did not make any adverse credibility findings about the Petitioner’s testimony on this issue. Indeed, the IJ found that “the co-respondent is a Christian and is attempting to pursue that religion in the United States.” Therefore, her testimony regarding her fear of future persecution is sufficient to establish her claim on this ground.

Moreover, the record compels a finding that the Petitioner’s fear of future persecution is objectively reasonable. As the IJ noted, the record demonstrates that there have been “crackdowns on Christians in China.” The Government authorities who detained the Petitioner conditioned her release from prison on her ceasing all “anti-government” Christian religious association. If she chose to participate again in home church gatherings, she faced revocation of her bail, and future detention. Furthermore, the Petitioner testified that after she sent home Christian pamphlets, the Government searched her father’s home and accused her of participating in “anti-revolution[ary] activities abroad” and attempting to “assist the foreign elements to stir, up the agitation.” Based on these accusations, the Petitioner faces an objectively reasonable possibility of future persecution should she return to China.

Based on a full review of the record, we find that a reasonable fact-finder would be compelled to conclude that Quan has shown sufficient evidence of past persecution and a well-founded fear of future persecution. We do not address Quan’s entitlement to withholding of removal or relief under the Convention Against Torture because Quan did not raise these issues in her brief to this court. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (holding that issues not raised in the appeal brief are deemed abandoned).

We grant the petition for review, vacate and remand so that the Attorney General may exercise his discretion as to whether to grant asylum relief. See Sael v. Ashcroft, 386 F.3d 922, 930 (9th Cir.2004).

PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.

1 . The record is unclear as to whether Quan’s husband’s name is phonetically spelled Linsh-eng “Li” or Linsheng "Lin.’’ We use "Li” because that is the spelling employed on Quan's asylum application.

2 . The Petitioner refers to a "Motion for Relief from Dismissal for Failure to Prosecute and to Consolidate Petitions,” but no such motion was ever filed. Petr.’s Opening Br. at 2.

3 . We do not address the claim in the Respondent's brief that the Petitioner’s father was imprisoned for 24 years for being Christian. This contention is unsupported by the record, and was not relied on by the IJ in making his credibility determination.

4 . The IJ’s opinion does not weigh the significant fact that Quan's husband was in America from mid-April 1996 through June 1996, or the fact that from June 1996 through August 25, 1996, he did not live at home. The IJ's opinion merely states that "the fact that the respondent's husband was going back and forth to the United States during this time frame, does not diminish this implausible conduct.” This conclusory statement does nothing to address the evidence.

5 . Moreover, publicly available information indicates that banks in China are typically open on Sundays. See TravelChinaGuide.com, http:H www.travelchinaguide.com/essen-tiallbusiness-hour.htm ("Hospitals, post offices, banlcs, monuments and museums are usually open seven days a week from 8:30 or 9:00 a.m. to 6:00 p.m.”) (emphasis added); see also id., http://www.travelchina-guide.com/essential/tibet/money.htm (stating that some branches of the Bank of China are open on Sundays).

In its footnote, the dissent entirely misses the point of the availability of the information obtained by these simple internet searches. In his oral decision, the IJ explicitly referred to Quan's "implausible testimony that the banks were open on Sunday.” We do not use the search results to establish one way or the other whether Quan’s mother's bank was open on that particular Sunday. Rather, this information merely underscores our position that any finding on the question of the bank’s hours could only be based upon conjecture and speculation, impermissible bases under our controlling law. See Guo, 361 F.3d at 1199.