Lhanzom, Zigmey v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2889
ZIGMEY LHANZOM,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A79-587-384
____________
ARGUED APRIL 7, 2005—DECIDED DECEMBER 5, 2005
____________
Before MANION, ROVNER and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Zigmey Lhanzom is a Tibetan
Buddhist who sought asylum in the United States as well
as withholding of removal and relief under the United
Nations Convention Against Torture (“CAT”). The immigra-
tion judge (“IJ”) found that Lhanzom missed the deadline
for filing an asylum claim and failed to meet the criteria for
withholding of removal or relief under CAT. He therefore
denied her claim in full and ordered that she be removed to
the People’s Republic of China. The Board of Immigration
Appeals (“BIA”) affirmed, without opinion, the decision of
the IJ. Lhanzom petitions for review and we grant the
petition in part, dismiss it in part, and remand for further
proceedings consistent with this opinion.
2 No. 04-2889
I.
Lhanzom was born in Tibet in 1964. The People’s Repub-
lic of China (hereafter “China”) invaded and annexed Tibet
in 1949 and has occupied Tibet since that time. Tibet
currently is considered part of China and Lhanzom is
therefore considered a citizen of China. In 1957, Lhanzom’s
father, Sedan Khampa, joined a Tibetan military resistance
group called Chushr Gangdruk. As a member of Chushr
Gangdruk, Khampa fought against the Chinese government
primarily in an area of eastern Tibet called Kongo. The
fighting took him at times into Nepal and at times back into
Tibet. He had limited contact with his family during that
time, meeting up with his wife on occasion. In 1965, a year
or so after Lhanzom was born, Khampa and his wife
escaped to Nepal, leaving Lhanzom and her older sister,
Tseyyang, with relatives in Tibet. Khampa and his wife
later settled in Sikkim in India. They resided in Sikkim
from 1966 until 2002. In 2002, Khampa and his wife moved
to the United States where another daughter had obtained
citizenship.
According to her testimony before the IJ, Lhanzom and
Tseyyang had been left in the care of their uncle and his
wife. Her uncle, Gampal, was a lama, a Tibetan Buddhist
monk. Because his brother was a resistance fighter and
because he was a lama, Gampal was eventually arrested by
the Chinese government and imprisoned along with
Tseyyang. Gampal’s home was ransacked and he was
beaten. Lhanzom fled to Chamdo (a city in Tibet) when this
happened, and went into hiding. Gampal and Tseyyang died
in prison in 1986 as a result of beatings and other mistreat-
ment. Lhanzom was subsequently taken to a labor camp
near Chamdo where she spent the next two or three years.
In the labor camp, she was forced to work on road construc-
tion during the day and subjected to Communist propa-
ganda at night. Her captors demanded that she renounce
the Dalai Lama, the ruler and chief monk of Tibetan
No. 04-2889 3
Buddhism, and threatened to beat her if she did not comply.
At times, when she did not comply with their demands,
government agents forced her to stand and bend down for
hours and hours, and beat her on her back. Lhanzom was
22 or 23 when the government placed her in this labor
camp. Two or three years later, in 1989, there was a
relaxation of government policy against Tibetan Buddhists
and Lhanzom was among a number of people released from
the labor camp. She reported that she was released because
she was weak and ill and therefore unable to do much work.
On her release, she went to live with another uncle in
Rioche (another city in Tibet). There she married Nima
Dhondup. This uncle, who was also a lama, had also spent
considerable time in prison and was in a weakened condi-
tion. He died a short time after Lhanzom’s arrival in
Rioche. After her uncle died, Lhanzom and her husband
went on a pilgrimage to Lhasa, the capital of Tibet. During
the journey, Dhondup, who had been in poor health because
of his time in prison, became ill with food poisoning and
died.
Lhanzom, now without family and with no place to go,
stayed in Lhasa and began participating in demonstrations
against the Chinese government. She was promptly ar-
rested and was held for three days. On her release, she met
up with friends who were willing to help her escape
to Nepal. In Lhanzom’s own words (as translated at her
hearing):
The journey took whole month because during the
daytime we hid, sleep, and then at night-time we
escape. On the way we suffered tremendous stress,
pain, and, you know, from hunger because during those
days, it was very cold. There were snowy mountains,
there were big mountains to cross, and there was lack
of food so we were most of the time hungry and I
wondered if I would ever reach Nepal and see other
4 No. 04-2889
people, my family or whoever, but thanks to God, finally
I was able to reach there.
R. at 66.1 Once in Nepal, Lhanzom set about the task of
tracing her remaining family members. With the help of the
Gyatutsang family, she was able to find her father in
Sikkim in India. Although Sikkim was home to many long-
time Tibetan refugees, the government there was much
more suspicious of new arrivals and had a policy of deport-
ing new refugees. To avoid deportation, Lhanzom’s father
took her first to Dharamsala, a town in northern India
which is the home of the Tibetan government-in-exile.
Lhanzom stayed in Dharamsala for a few months but its
distance from Sikkim made it difficult to visit her family so
she moved to Darjeeling, which is a four-hour drive from
Sikkim. In Darjeeling, Lhanzom worked as an assistant
cook at Sonada, a Tibetan monastery. She estimated that
she worked at Sonada from 1991 to 1996. During that time,
she participated in political activities, including marches
and demonstrations in both Darjeeling and Sikkim. These
activities were protests for Tibetan freedom, demanding
that China leave Tibet and restore its independence. During
this time, Lhanzom joined the Tibetan Youth Congress and
the Tibetan Women’s Association, explaining that her
political activities and memberships centered around
Darjeeling and Sikkim rather than Dharamsala because she
was in Dharamsala for only a brief period. Although the
Indian government did not persecute Lhanzom, she had few
rights in India and was unable to obtain any particular
registration or papers from the government. Her only
identification documents came from the Tibetan
government-in-exile. She had no hope of being granted
asylum in India given that, even her parents, who had
1
We take judicial notice that the Himalayan Mountains separate
Tibet from Nepal.
No. 04-2889 5
resided there for more than thirty years, were unable to
obtain asylum.
In the meantime, one of Lhanzom’s sisters had become a
citizen of the United States when the U.S. govern-
ment conducted a lottery allowing one thousand Tibetan
families to immigrate here. Because Lhanzom had no
recognized government papers allowing her to come to the
United States, she went to Nepal and purchased a false
passport which, in combination with a sponsorship letter
from her sister, allowed her to travel to the United States
in 1997. She arrived in Chicago on October 25, 1997. At
first, she came on a tourist visa but later applied to
school and transferred to a student visa. Before her student
visa expired, she applied for asylum. While studying in the
United States, Lhanzom continued to participate in political
activities to protest China’s occupation of Tibet. She
attended demonstrations every March 10, which marked
Uprising Day, the day that Tibetans first resisted the
Chinese occupation. She participated in various demonstra-
tions in New York, Washington and Chicago, protesting the
Chinese occupation of Tibet. During a demonstration at the
Chinese consulate in Chicago, Lhanzom noticed people
inside the consulate taking photographs of the demonstra-
tors.
In support of her claim, Lhanzom presented documentary
evidence at her hearing before the IJ. She presented
pictures of herself at various demonstrations in Nepal,
Delhi, Chicago, and Washington D.C. She also presented a
resident identification card from the Peoples Republic
of China that she received when she was nineteen or twenty
years old. She submitted a birth certificate from the Tibetan
Welfare Office in Sikkim, explaining that no birth certifi-
cates were issued in Tibet itself and that the Indian
government would not provide one either. The Tibetan
government-in-exile issued the birth certificate after her
father certified that Lhanzom was his daughter. She
6 No. 04-2889
presented an identification document issued by the State of
Himachal Pradesh, which an Indian friend helped her
obtain. Finally, she submitted an identification document
from the Tibetan Youth Club in Gangtok, Sikkim, and a
green card from the Tibetan Welfare Office. When asked
what would happen if she returned to Tibet, Lhanzom
stated that she feared she would be imprisoned or executed
because of her personal involvement in demonstrations
against the Chinese government and because of her father’s
participation in Chushr Gangdruk.
Under cross-examination, Lhanzom again confirmed
that her Nepalese passport was a fake, purchased from
agents in Nepal who trafficked in counterfeit documents, a
fact Lhanzom had not hidden. She described how she took
the fake Nepalese passport to the U.S. embassy, along with
the sponsorship letter from her sister, Dawa Dolma, who
had obtained citizenship in the United States. She ex-
plained that it was impossible for her to get a Chinese
passport without going back to Tibet and risking prison
or death. She testified that when she first came to the
United States, she did not know asylum was even a possi-
bility but learned about it through Tibetans she met here.
She spent much of her first year in the United States ill,
unable to adapt to conditions here. According to Lhanzom,
she delayed in filing her asylum application because of
illness and misinformation about the process. Moreover, she
did not have the necessary papers, having taken few things
with her when she left Nepal. Friends in the U.S. gave her
conflicting advice about filing such a claim and she saw the
situation as hopeless until she obtained more accurate
information. She filed her first asylum application on
August 27, 2001.
Lhanzom’s father, Sedan Khampa, also testified at her
hearing. Khampa testified that he joined the military group
Chushr Gangdruk in 1957 in order to fight the Chinese
invasion of Tibet. He fought the Chinese because China
No. 04-2889 7
persecuted Tibetans for their Buddhist religious beliefs. He
described the persecution and imprisonment of family
members that occurred as a result of the Chinese invasion.
He described his wife’s escape from Tibet across the Nepal
border in 1965, leaving their two daughters in the care of
relatives in Tibet. He confirmed that he and his wife settled
in Sikkim in India and lived there from 1966 until coming
to the U.S. in 2002. In 1990, he heard from friends that his
daughter Lhanzom had come to Nepal. When asked if he
knew what had happened to family members he left behind
in Tibet, he replied that he heard what happened to his
family from Lhanzom.
After the government cross-examined Khampa, the IJ
questioned the seventy-nine year old Khampa at length,
and the misunderstandings that are inevitable when
questioner and witness speak very different languages
abound in the record. For example, the IJ questioned
Khampa about moving to Nepal in 1965, when Khampa had
never testified that he moved to Nepal. Khampa testified
that he went to Nepal in 1965 to meet up with his wife but
did not stay long there. On another occasion, when
Lhanzom’s attorney tried to correct the IJ’s misunderstand-
ing about the location of Sikkim, the IJ responded with
unusual defensiveness:
IJ: So then from 1965 until one year ago, you
spent that time where?
Khampa: So I left that resistant movement in 1965
since I heard that my wife has come so
I left that place and joined my wife.
IJ: Where did you go then? Did you stay in—
Khampa: I did not stay much inside Nepal. We
entered inside India.
IJ: Well, you had said that you had gone to
Sikkim which is a mountain kingdom.
Did you go to Sikkim?
8 No. 04-2889
Khampa: At that time, resistant movement was
disintegrating. Some were going there
and some were just all over and I tried to
enter with my wife into India.
Mr. Hagan: Your Honor, can I—
IJ: No, don’t interrupt him, please.
Mr. Hagan: I’m suggesting a question.
IJ: No, I don’t want you to suggest anything,
please.
Mr. Hagan: I believe Your Honor has a misapprehen-
sion.
IJ: Well, I don’t, sir. I don’t interrupt you
with your questions. I’m trying to get—
Mr. Hagan: I’ll redirect then, Your Honor, when I get
a chance.
IJ: Well, I haven’t promised you a chance to
do that. I already did offer you that op-
portunity earlier.
R. at 105-06. Undoubtedly, Mr. Hagan was trying to inform
the IJ that Sikkim is not a “mountain kingdom” as the IJ
erroneously stated but rather is a state in India. In fact,
Sikkim had ceased to be a kingdom and had become an
Indian state in 1975. Thus, the testimony that Khampa and
his wife went to India was not, in fact, inconsistent with his
statement that they went to Sikkim. Unfortunately, the IJ
repeated this error of geography when he found Lhanzom
testified inconsistently about her departure to the United
States, as we will later detail.
Although Khampa had testified that he knew about his
daughter’s life in Tibet only from talking to her after she
escaped in 1990, the IJ nonetheless questioned Khampa
extensively about Lhanzom’s life in Tibet. The IJ asked
No. 04-2889 9
Khampa why his daughter left Tibet, and Khampa re-
plied that the relatives who had cared for her died and that
she had nowhere to stay. The IJ considered this an im-
peachment of Lhanzom’s story that she had been mistreated
in Tibet, remarking that Khampa did not mention anything
happening to Lhanzom in Tibet before her 1990 departure.
A confused exchange followed during which Khampa tried
to clarify that he was not in Tibet when these things
happened to his daughter, that she knew best what had
happened to her, and that he was making assumptions
based on what he knew happened to Tibetans in general.
Because this exchange was crucial to the IJ’s finding that
Lhanzom was not credible, we include it here:
IJ: [F]rom what you said, your daughter left
Tibet because her relatives died, not be-
cause she was being mistreated in 1990.
You didn’t mention that anything happened
to her before her departure in 1990. Why
would there [sic] something happen to her
in 2003?
Khampa: What she, we were separated, what she
suffered in there and she knows best. She
has suffered so much.
IJ: Well, sir, has she had any contact with the
authorities, by that, authorities, I mean the
Chinese police or military before she left in
1990?
Khampa: She has suffered under forced labor.
IJ: When did she experience forced labor, sir?
Khampa: It is not only my daughter but daughters
and sons of all the families whose parents
were involved in the resistant movement. I
was involved in the resistant movement
and our family was treated as reactionaries
10 No. 04-2889
by the Chinese, so reactionaries’ families
always suffer.
IJ: But you’re not answering my question.
I hear what you’re saying, sir, but what I’m
asking you is when did, when was your
daughter forced into slave labor? When?
From what year to what year?
Khampa: Chinese started cultural revolution in 1964
and during that time, all the youngsters
suffered, including my daughter even
though she was very young, but the older
one also suffered so much.
IJ: Okay, But you’re still not, this is the third
time I’m asking you the same question so I
want you to really focus on the question.
You said earlier that your daughter had to
work in forced labor. What year was that
and how long? When did she begin and
when did she end?
Khampa: Maybe she suffered around 1980 to 1990,
and before that she was too young.
IJ: So, for ten years she was working in forced
labor?
Khampa: Yes.
IJ: According to her asylum application, she
was born in 1964. Is that right? Was she
born then?
Khampa: Yes.
IJ: So she was in a forced labor camp from
when she was 20 to when she was 30?
Excuse me, I’m sorry. When she was 16 to
when she was 26?
No. 04-2889 11
Khampa: Yeah, around that time, when she was
around 15, 16, then they started.
IJ: And so she was there until she was 26
about?
Khampa: Yes.
IJ: And why was she released in 1990? Why
was she released in 1990?
Khampa: 1990 was an important point in her life
because many of her relatives, including
sisters have died and she has no where to
go, she has to make a decision and then
that’s why she decided to leave.
IJ: No, I didn’t ask you that, sir. I ask you, you
said that she was in a forced labor camp
until 1990, why was she released in 1990
after 10 years by the Chinese authorities?
Khampa: It is not leaving, it is escaping.
IJ: She escaped in 1990?
Khampa: Yes.
IJ: Okay. Then she left and went and joined
you in Nepal? She did?
Khampa: Yes.
IJ: Now, sir, would it surprise you if I told you
then that your daughter has told us earlier
that she was in a labor camp only two or
three years, not 10 as you’ve told us?
Khampa: To talk about time is difficult because, you
know, they suffered there and I was not
there to see the whole thing. They suffered
for a very, very long time.
12 No. 04-2889
IJ: But, sir, there is a substantial difference in
time obviously between 10 years and two or
three. How do you account for the fact that
you said 10 and she says two or three?
Khampa: My assumption was that, you know, after,
since 19—, when she was 15 years old and
I assumed that, you know, she is considered
as adult, 15, 16, 17, and then, you know, all
others have to undergo forced labor, there-
fore, I considered that, you know, that she
had been suffering for a very long time.
IJ: Sir, you said she escaped in 1990, however,
your daughter when she testified said that
she was let go by the Chinese officials in
1989 because she was so weak. Can you
explain why your version and hers differ?
Khampa: I’m old and I have very bad memory about
the dates and things like that. I make
mistakes, so I may have made mistakes
because I was not there.
IJ: So, could you be completely mistaken about
whether she was in a labor camp at all?
Khampa: I strongly know that, you know, she has
suffered and not only that her sister and
my other relatives all passed away under
the suffering.
R. at 150-53. This dubious cross-examination continued
even though Khampa had now told the IJ at least three
separate times that he was not present in Tibet when these
things happened to Lhanzom, that he was making assump-
tions about what happened to her based on what happened
generally to Tibetan Buddhists under the Chinese occupa-
tion, and that Lhanzom knew best exactly what had
happened to her and when. When he finished his question-
No. 04-2889 13
ing, the IJ excused Khampa and, as promised, did not give
Lhanzom’s attorney any opportunity to redirect and correct
any of the misunderstandings that leap from the transcript
pages. Lhanzom’s attorney and government counsel were
allowed to argue their respective positions to the IJ, who
then recessed and returned with an oral decision.
The IJ began by noting that Lhanzom filed her asylum
application on September 27, 2001 and had entered the
United States in October 1997. Because Lhanzom did not
meet the one year deadline for filing an asylum application,
the IJ considered whether she established extraordinary
circumstances that would justify the delay. The IJ con-
cluded that Lhanzom failed to show extraordinary circum-
stances and failed to show she was in valid student status
or other lawful status up until the filing of the asylum
application. The IJ thus turned to Lhanzom’s alternate
claims for withholding of removal and protection under the
CAT.
The IJ acknowledged that China in fact occupies Tibet
and suppresses the practice of Tibetan Buddhism. The IJ
concluded that Lhanzom proved she is Tibetan, but found
that she misrepresented who she was when obtaining her
passport and visa in Nepal. He found that Lhanzom’s
testimony was consistent with her father’s testimony on the
issue of Khampa’s participation in the Tibetan resistance
movement but that there were material differences in their
testimony regarding Lhanzom’s activities. He set forth
these inconsistencies. First, in the statement Lhanzom filed
with her application for asylum (hereafter “Pre-Hearing
Statement”), she stated that she spent most of her youth in
labor camps during the day and at re-education meetings in
the evenings, from the time she could remember until 1989.
In contrast, the IJ stated, in her testimony Lhanzom
claimed she spent two or three years in a labor camp before
her release due to weakness. The IJ found that Khampa’s
story was inconsistent with his daughter’s statements
14 No. 04-2889
because he testified that she was in labor camps for ten
years before escaping. The IJ concluded that the accounts
differed as to the length of time she spent in labor camps
and the manner of her leaving custody.
The IJ also found inconsistencies in Lhanzom’s account of
what happened to her and where she lived after she left
Tibet. In her Pre-Hearing Statement, according to the IJ,
she reported that she went to Dharamsala, joined the
Tibetan Women’s Association and the Tibetan Youth
Association, and participated in a number of demonstra-
tions that generated much publicity. At her hearing, she
testified that she participated in demonstrations and
political activities in India without providing any detail. In
contrast, according to the IJ, her father testified that she
stayed in a monastery, never had contact with the police,
and left India because her sister was living in the United
States. The IJ also concluded that Lhanzom’s documentary
evidence contradicted her testimony, including a letter from
the Tibetan Welfare Office stating that her last departure
from Sikkim was August 7, 1997, and a letter from the
Tibetan Youth Club stating that Lhanzom was a member of
the regional Tibetan Youth Congress of Gangtok, Sikkim
since 1993 and that during her stay in Sikkim, she was one
of the most active members.
The IJ considered these documents to be evidence that
Lhanzom lived in Sikkim rather than Darjeeling and
faulted her for claiming to have left for the U.S. from India
when the documents stated she left from Sikkim. The
IJ found that Khampa’s testimony that his daughter stayed
in a monastery the entire time she was in Darjeeling
inconsistent with Lhanzom’s testimony that
she participated in demonstrations:
Clearly, there are material inconsistencies in these
accounts. I find that the respondent and her witness
have given inconsistent testimony on material issues in
No. 04-2889 15
this case, that is, the extent of her mistreatment by the
Chinese authorities and her activities and whereabouts
in India after she left in 1989 or 1990. There also are
important inconsistencies between the documents and
her claims. The documents indicate that she is a
Nepalese. She claims she is from Tibet. Assuming that
she is from Tibet, I believe she is, she has not provided
an explanation of why she misrepresented her origins
and citizenship as reflected in the visa, indicating she
is Nepalese.
Oral Decision of the Immigration Judge, February 28, 2003
(hereafter “Oral Decision”), at 9; R. at 27. The IJ was not
persuaded that the Chinese government was aware of
Lhanzom’s participation in demonstrations in Chicago and
elsewhere, calling her claim pure speculation. The IJ
rejected Lhanzom’s claim that she would be mistreated,
incarcerated and abused if she was returned to China,
finding that she was not credible for the reasons he previ-
ously stated and finding that her father’s actions against
the Chinese were too remote in time and therefore unlikely
to cause any retribution against her. The IJ thus denied
Lhanzom withholding of removal or relief under the CAT.
He denied her voluntary departure and ordered her re-
moved to China. The BIA summarily affirmed the IJ’s
decision without issuing a separate decision. Lhanzom
petitions this court for review of the IJ’s order.
II.
In her petition, Lhanzom argues that the IJ erred in
finding that her testimony differed from Khampa’s testi-
mony in any material way. She also contends that she
adequately proved her claim of past persecution and that
her petition for asylum should therefore have been granted.
She maintains that she presented sufficient evidence of a
16 No. 04-2889
well-founded fear of future persecution and that the IJ
should have shifted the burden of proof to the government.
Because the IJ made so many factual errors, she asks that
the case be remanded to the IJ for a proper determination
of the facts. In sum, she contends that she was entitled to
asylum under the facts she proved at her hearing. She also
appeals the IJ’s denial of her claims for withholding of
deportation and for protection under the CAT. The govern-
ment contends that we lack jurisdiction to review the IJ’s
dismissal of Lhanzom’s untimely asylum application. The
government also argues that, if we do have jurisdiction, we
must affirm because substantial evidence supports the IJ’s
conclusion that Lhanzom was not entitled to asylum.
Finally, the government maintains that the IJ properly
denied withholding of removal and protection under the
CAT.
A.
We begin with the jurisdictional issue raised by the
government. The government argues that because the IJ
dismissed Lhanzom’s petition for asylum for failure to meet
the one year deadline, we lack jurisdiction to consider that
claim. Generally, asylum applications must be filed within
one year after the date of the alien’s arrival in the United
States. See 8 U.S.C. § 1158(a)(2)(B). Notwithstanding the
one year deadline, an asylum application may be considered
if the alien demonstrates either the existence of changed
circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances
relating to the delay in filing the petition. 8 U.S.C. §
1158(a)(2)(D). However, “[n]o court shall have jurisdiction
to review any determination of the Attorney General” under
those timing provisions. 8 U.S.C. § 1158(a)(3). In reviewing
the IJ’s Oral Decision, it appears that the IJ denied rather
than dismissed Lhanzom’s asylum application. Oral
No. 04-2889 17
Decision at 11 (“It is ordered that the respondent’s applica-
tion for political asylum, withholding, and protection under
the Torture Convention, be denied.”); R. at 29. A denial
would suggest a ruling on the merits rather than a proce-
dural ruling on the timing of Lhanzom’s application, but a
review of the entire Oral Decision suggests that this was
simply a careless choice of words rather than a ruling on
the merits. Earlier in the Oral Decision, the IJ found that
Lhanzom had not met the one year deadline and had not
presented facts sufficient to justify the delay. After that
finding, the IJ did not address the asylum claim again until
“denying” the claim in the final two sentences of the Oral
Decision. In context, it is clear that the IJ intended to
dismiss the asylum claim as untimely filed, and the peti-
tioner’s attorney conceded as much at oral argument.
Indeed, at oral argument, the petitioner’s attorney conceded
that we lacked jurisdiction to review the asylum claim. See
Nigussie v. Ashcroft, 383 F.3d 531, 533-34 (7th Cir.
2004) (this court lacks jurisdiction over the immigration
service’s decision to bar an asylum application based on
untimeliness, pursuant to 8 U.S.C. § 1158(a)(3)). We will
therefore turn to the claims for withholding of deporta-
tion and relief under the CAT. Nigussie, 383 F.3d at 534
(although this court, under § 1158(a)(3), may lack juris-
diction to consider the merits of an asylum claim, that
section does not bar our review of an application for with-
holding of removal or relief under the CAT).
B.
When the BIA summarily affirms the decision of the IJ,
the IJ’s decision becomes that of the BIA for purposes
of judicial review. Georgis v. Ashcroft, 328 F.3d 962, 966-
67 (7th Cir. 2003). Because the BIA affirmed summarily
in the instant case, we will review the IJ’s Oral Decision.
We review denials of petitions for withholding of deporta-
18 No. 04-2889
tion and denials of relief under the CAT for substantial
evidence. Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir.
2003); Georgis, 328 F.3d at 967. The IJ’s decision must be
upheld if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.
Uwase, 349 F.3d at 1041; Georgis, 328 F.3d at 967. In order
to make out a claim for withholding of removal, Lhanzom
must demonstrate that her life or her freedom would be
threatened in her home country on account of race, religion,
nationality, membership in a particular social group, or
political opinion. See 8 U.S.C. § 1231(b)(3)(A); Cuevas v.
INS, 43 F.3d 1167, 1171 (7th Cir. 1995). Unlike the decision
to grant asylum, which is discretionary even if the criteria
for asylum are met, the Attorney General must withhold
deportation if the alien meets the criteria stated for with-
holding of removal. Firmansjah v. Gonzales, 424 F.3d 598,
604-05 (7th Cir. 2005); 8 U.S.C. § 1232(b)(3)(A). Lhanzom
must demonstrate by a clear probability that she will face
persecution if she is removed to China. Zheng v. Gonzales,
409 F.3d 804, 809 (7th Cir. 2005). A clear probability exists
when the applicant demonstrates that it is more likely than
not that she will be persecuted if returned to her native
country. Zheng, 409 F.3d at 809. If Lhanzom is able to show
she suffered past persecution, a presumption arises that the
persecution will continue upon her return. Zheng, 409 F.3d
at 809. To obtain relief under the CAT, the petitioner must
“establish that it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 208.16(c)(2); Nigussie, 383 F.3d at 534.
“The testimony of the applicant, if credible, may be suffi-
cient to sustain the burden of proof without corroboration.”
8 C.F.R. § 208.16(c)(2). Other evidence considered relevant
to the applicant’s burden of proof for the possibility of
future torture includes, but is not limited to, evidence of
past torture inflicted on the applicant, evidence of “gross,
flagrant or mass violations of human rights within the
No. 04-2889 19
country of removal,” and other information regarding
conditions in the country of removal. 8 C.F.R. § 208.16(c)(3).
See also 8 C.F.R. § 208.18 (defining what is meant by
“torture” under the CAT).
The IJ’s denial of Lhanzom’s claim was based largely on
his finding that Lhanzom did not provide credible evi-
dence in support of her claim. That decision was based, in
turn, on alleged inconsistencies the IJ found among
Lhanzom’s Pre-Hearing Statement, her testimony and her
father’s testimony. Indeed, the IJ did not comment on
Lhanzom’s demeanor as a witness but relied entirely on
these alleged inconsistencies in finding her not credible.
“Credibility determinations are afforded substantial
deference, but they must be supported by specific, cogent
reasons.” Ahmad v. INS, 163 F.3d 457, 461 (7th Cir. 1999).
Moreover, these reasons must bear a legitimate nexus
to the finding. Because the entire case turns on the
IJ’s determination that these inconsistencies doomed
Lhanzom’s claim, we turn to those alleged inconsistencies.
The first inconsistency noted was Lhanzom’s use of a
Nepalese passport and visa to gain entry to the United
States. Lhanzom indicated on the visa that she was Nepa-
lese and testified that she paid for this fake passport in
order to facilitate her departure to the United States. The
IJ concluded that Lhanzom must have misrepresented who
she was to the American Embassy in Nepal, which indeed
is exactly what Lhanzom testified that she did. The IJ
remarked that Lhanzom had “not provided an explanation
of why she misrepresented her origins and citizenship as
reflected in the visa, indicating that she is Nepalese.” Oral
Decision at 9. Of course, Lhanzom had provided an explana-
tion for the Nepalese passport and visa. In her direct
testimony, she stated that she purchased a fake passport in
Nepal in order to facilitate her entry into the United States.
R. at 72. On cross-examination, she further explained that
it is impossible as a Tibetan to obtain a passport in Nepal
20 No. 04-2889
except by purchasing a fake passport and claiming to be
Nepalese. She testified that she claimed to be Nepalese
because “if I say I’m a Tibetan, that I’m from Tibet and
things like that, I need to have a passport. Who is going to
issue a passport? If I go back [to Tibet], I’ll be in prison.
There is no way of getting [a] passport from the Chinese
Embassy or anything, so I have to rely on this fake pass-
port.” R. at 90. She explained that after escaping Tibet, it
was necessary to keep her presence in Nepal a secret from
Chinese authorities. R. at 90. Moreover, when she escaped
from Tibet into Nepal, she did not bring many papers with
her. R. at 92. Thus, the IJ was mistaken that Lhanzom had
not explained the fake passport. She had in fact provided a
very plausible and reasonable explanation for the use of the
fake passport and admitted these facts in direct testimony.
The use of a fake passport in these circumstances was no
mystery. If the rest of her story was true, Lhanzom had
escaped from Tibet in a treacherous one month journey over
the Himalayan mountains. As the government conceded,
Chinese repression and abuse of Tibetans is well-docu-
mented. Lhanzom was not in a position to go back to Tibet
to apply for a valid passport or to approach the Chinese
embassy in Nepal without putting herself at great risk.2
Thus, the IJ was incorrect as a factual matter that
Lhanzom had not explained the passport and visa, and this
was not a basis for finding Lhanzom not credible. See
Garcia-Ramos v. INS, 775 F.2d 1370, 1374 (9th Cir. 1985)
(petitioner’s ability to obtain passport through bribery or
other means may have little or no relevance to a claim for
persecution).
2
As we discuss infra, the State Department has documented
the difficulties for Tibetans in obtaining passports through
legitimate channels, and has also documented the dangers to
Tibetans who escape to Nepal and are subsequently forcibly
repatriated to China.
No. 04-2889 21
The IJ also found material inconsistencies in the evidence
regarding the timing and extent of Lhanzom’s stay in labor
camps. As we noted earlier, Lhanzom submitted a written
Pre-Hearing Statement in support of her asylum applica-
tion. The IJ compared the Pre-Hearing Statement to
Lhanzom’s oral testimony and to her father’s oral testi-
mony. According to the IJ, there were material inconsisten-
cies among these three sources of evidence. Rather than
repeat the IJ’s lengthy and often inaccurate depiction of
these various pieces of testimony, we will confine our
discussion to the IJ’s errors of fact. In the Pre-Hearing
Statement, Lhanzom reported that, although she did not
remember much of her early childhood, she spent most of
her youth in labor camps during the day and re-education
meetings at night. In the re-education meetings, she was
forced to sing the praises of communism and renounce her
family and the former system of government. She stated
this was typical of her life until 1989. In her live testimony,
when asked what happened after her uncle, sister and
brother-in-law were imprisoned, she stated that she hid at
first in Chamdo and then was taken to a labor camp for two
to three years. She testified that she was released because
she was weak. Her father, as we have described, made clear
that he was not present in Tibet when these things hap-
pened to his daughter but assumed that she was subjected
to the same conditions as other Tibetans who were forced
into labor camps once they were deemed old enough to
work. From this assumption, Khampa testified that his
daughter would have spent approximately ten years in
labor camps, and that she then escaped to Nepal.3
3
The 2001 State Department Report confirms that forced labor
occurs in a variety of settings in China, including in prisons,
detention centers, reeducation-through-labor facilities, and at
work sites where prisoners are used as uncompensated labor.
(continued...)
22 No. 04-2889
The IJ found Khampa’s ten year remark inconsistent with
Lhanzom’s testimony, and found Lhanzom’s oral testimony
inconsistent with her written Statement. There are a
number of problems with the IJ’s analysis. First, he
mischaracterized some of Lhanzom’s testimony. For
example, he faults her for stating she was in prison for two
to three years but she never testified that she was in prison,
only that she worked in a labor camp. He also faults the
testimony about the two to three year time frame as
opposed to the Statement about working in labor camps for
most of her youth, but neglects to mention that Lhanzom
spoke about this shorter time period in response to a
specific question about what happened to her following the
imprisonment of her uncle, sister and brother-in-law. She
was not asked during her live testimony about her youth.
Her testimony is thus not inconsistent because it addressed
a shorter, more specific time period about which she was
being questioned. Nor is her testimony inconsistent with
Khampa’s testimony. Khampa told the IJ repeatedly that he
was not present in Tibet when these things happened to his
daughter and that he was making assumptions based on
what happened to other Tibetans. Perhaps because the IJ
had admonished Lhanzom’s counsel not to “interrupt” him,
and perhaps because it is generally unwise to object to a
judge’s questions as lacking foundation, Lhanzom’s attorney
did not object to the IJ’s questions to Khampa after
Khampa admitted he had no personal knowledge and was
essentially guessing at what happened to Lhanzom. In any
case, testimony that is admittedly without foundation and
based on conjecture cannot impeach otherwise valid
evidence. Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir.
3
(...continued)
Tibetans outside of detention settings also engage in labor
on public projects managed by local governments, without pay.
2001 State Dep’t Report at 48.
No. 04-2889 23
2004) (the court will not uphold adverse credibility determi-
nations based on speculation or conjecture rather than on
evidence in the record).
The IJ also found inconsistencies in the evidence regard-
ing Lhanzom’s departure from labor camps and entry
into Nepal. In her Statement, Lhanzom did not address how
she departed from the labor camp, stating only that in 1989,
she and her husband went on a pilgrimage to Lhasa, that
her husband died on the journey, that she then participated
in political protests against the Chinese in Lhasa, was
arrested and held for three days, that she was released and
then escaped to Nepal. In her live testimony, Lhanzom
stated she was released from the labor camp because there
was a relaxation of Chinese policy and she was too weak to
work much. She then detailed her marriage, the journey to
Lhasa, her husband’s death, her political activity, arrest,
release and escape to Nepal. Again, these stories are not
inconsistent but merely supplement each other. In review-
ing the transcript of Khampa’s testimony, again, the only
thing that is clear is the level of confusion during his
testimony as the IJ continued to question him about
matters for which he had no personal knowledge. The IJ
found a material inconsistency because Lhanzom stated she
was released from the labor camp and Khampa called her
departure an escape. Khampa’s characterization of
Lhanzom’s departure as an escape is hardly inconsistent
with Lhanzom’s story. Lhanzom’s departure from Tibet to
Nepal certainly was an escape, and her father might see his
daughter’s release from labor camp due to weakness as a
kind of escape. See Iao v. Gonzales, 400 F.3d 530, 534 (7th
Cir. 2005) (noting a frequent insensitivity in immigration
hearings to the possibilities of misunderstandings caused by
the use of translators of difficult languages such as Chi-
nese). And again, it is improper to impeach Lhanzom’s
testimony with testimony that is admittedly not based on
personal knowledge.
24 No. 04-2889
There are similar errors in the IJ’s analysis of the
evidence regarding what happened to Lhanzom after she
left Tibet. In her Statement, Lhanzom provided some detail
about her participation in demonstrations against the
Chinese government while in India. In her testi-
mony, according to the IJ, she did not provide detail. It is
difficult to see how failing to repeat details that appear
in the earlier Pre-Hearing Statement amounts to an
inconsistency. Indeed, we see many cases where immi-
gration judges criticize applicants for repeating in live
testimony evidence that already appears in a written
statement. The main inconsistency on this point seems to be
that Khampa testified that his daughter was in a monas-
tery during the entirety of her stay in India and thus never
came into contact with police during demonstrations. Again,
the IJ questioned Khampa about his daughter’s activities in
India even though he was not present for them and had no
personal knowledge. When Lhanzom was in Dharamsala
and Darjeeling, Khampa was living in Sikkim. Had oppos-
ing counsel asked these questions posed by the IJ, they
would have undoubtedly been met with objections for lack
of foundation but counsel had been instructed not to
interrupt the IJ. Testimony given by a person who has no
firsthand knowledge of the facts cannot be used for im-
peachment. Yet this is exactly what the IJ did in his
analysis.
The IJ also found inconsistency between Lhanzom’s
testimony that she lived in Darjeeling from 1991 through
1996 and documents she submitted showing her member-
ship in the regional Tibetan Youth Congress of Gangtok,
Sikkim. One document from the Tibetan Welfare Office
states that Lhanzom is a bona fide Tibetan who escaped
from Tibet in 1990. The document explains that she
visited Sikkim to see her parents but could not stay there
because Sikkim is a restricted area. This document is
perfectly consistent with Lhanzom’s testimony. The docu-
ment states that her last departure from Sikkim was
No. 04-2889 25
August 7, 1997. R. at 178. Another document, on letterhead
of the Tibetan Youth Club and signed by the president of
the Regional Tibetan Youth Congress, certified that
Lhanzom is a bona fide Tibetan refugee and a member of
the Regional Tibetan Youth Congress, Gangtok, Sikkim,
India since 1992. According to this letter, “During her stay
in Sikkim, she was one of the most active member[s] of
T.Y.C.” R. at 179. When remarking on these documents, the
IJ underlined the phrase “her stay” and concluded that
Lhanzom lived in Sikkim in contradiction to her testimony
and her father’s testimony that she never lived in Sikkim.
Darjeeling, of course, is located very close to the state
of Sikkim, and there is no evidence in the record about
which regional office of the Tibetan Youth Congress a
resident of Darjeeling might join. Perhaps the regional
office in Gangtok, the capital of Sikkim, was closer to
Lhanzom’s home in Darjeeling and to her parent’s home
in Sikkim (where she often visited) than any other office.
No one asked her to explain these documents and the record
is devoid of evidence on this point. The IJ’s conclusion is
based on an assumption and assumptions cannot form the
basis of impeachment. Korniejew, 371 F.3d at 383.
The IJ also remarked:
[A] second document, also part of Exhibit 5, states that
“her last departure record from Sikkim was August 7,
1997,” yet the respondent did not testify that she left
from Sikkim, but rather obtained a passport in Nepal
and left from India.
Oral Decision at 8. We begin with what is now obvious:
leaving from Sikkim and leaving from India are the same
thing in much the same way that leaving from Illinois
and leaving from the United States are the same thing.
Sikkim is a state in India and this evidence is thus not
inconsistent. Moreover, the natural inference from
Lhanzom’s testimony is that she left from Nepal where she
26 No. 04-2889
obtained her passport and visa. In any case, the IJ’s
statement is nonsensical and cannot serve as the basis
for impeachment. All of the evidence presented was con-
sistent on the point that Lhanzom visited her parents in
Sikkim and went to Sikkim to participate in political
events. At some point in time, she made her “last departure
from Sikkim.” Nothing in the letter indicates that her last
departure from Sikkim was to the United States and the
again the IJ was making an assumption for which there is
no support in the record.
Other obvious errors by the IJ include his finding that
Lhanzom claimed in her Statement to have lived in
Dharamsala for six or seven years. On the contrary, there
is no such assertion in the Statement, which instead attests
that Lhanzom worked in a monastery in Darjeeling from
1991 to 1996. The IJ also found there were inconsistencies
regarding the extent of Lhanzom’s mistreatment by Chinese
authorities, but fails to specify the inconsistency. Nor could
we find one. Lhanzom consistently testified at her hearing
and in her Statement that she was subjected to forced labor
for extended periods of time, that she was required to
renounce the Dalai Lama and the former Tibetan govern-
ment, and that agents of the Chinese government beat her
and subjected her to posing in uncomfortable positions for
lengthy periods of time if she did not comply with their
wishes. Her father testified only that he knew his daughter
suffered much. There was no inconsistency in this testi-
mony. Having found Lhanzom not credible based on these
alleged inconsistencies, the IJ concluded that she and her
father were exaggerating the threat to Lhanzom’s liberty
and life if she were removed to China. Because this conclu-
sion rested on the unfounded finding that Lhanzom was not
credible, it cannot stand. Iao, 400 F.3d at 533 (case must be
remanded to the immigration service for a rational analysis
of the evidence when the IJ’s opinion is unreasoned and
there is no opinion by the BIA).
No. 04-2889 27
The government conceded at oral argument that if
Lhanzom’s account of her treatment in Tibet is credible, she
would meet the standard for demonstrating persecution.
The government also conceded that there is “no question”
that the Chinese government continues to persecute
Tibetan Buddhists. The February 2001, State Department
Report on China (“2001 Report”), which Lhanzom submitted
in support of her claim, presents a bleak picture for Tibetan
Buddhists. See Tamas-Mercea v. Reno, 222 F.3d 417, 423
(7th Cir. 2000) (recognizing State Department reports as
authoritative sources on the current political situations in
foreign states, and therefore as being helpful in determin-
ing whether a petitioner’s fear of future persecution is well-
founded). According to the State Department, particularly
serious human rights abuses persist in Tibet, where the
government carried out a “severe and wide-ranging crack-
down on Tibetan religious practices.” 2001 Report at 2; R.
at 188. The 2001 Report noted that the U.N. Committee
Against Torture reported continuing allegations of serious
incidents of torture, especially involving Tibetans and other
national minorities. 2001 Report at 4; R. at 190. According
to the 2001 Report, the Chinese government also intensified
and expanded its “patriotic education” campaign aimed at
“neutralizing” lamas and other persons with sympathies
to the Dalai Lama. 2001 Report at 23; R. at 209. In addition
to these comments, the Report contains a special section
addressing Tibet, which corroborates many of Lhanzom’s
specific claims about her treatment in Tibet. The Chinese
government strictly controls access to and information
about Tibet, making it difficult to determine the extent of
human rights abuses. The State Department nonetheless
reported that it received credible reports that Chinese
government authorities continued to commit numerous,
serious human rights violations in Tibet including instances
of torture, arbitrary arrest, detention without public trial,
and lengthy detention of Tibetan nationalists for peacefully
expressing their political or religious views. 2001 Report at
28 No. 04-2889
47-48; R. at 233-34. “Individuals accused of political
activism faced ongoing and serious persecution during the
year.” 2001 Report at 48; R. at 234. Recall that this 2001
Report covered the time period after Lhanzom reported that
the government had relaxed some of its policies against
Tibetans. The 2001 Report documented the use of forced
labor in a variety of settings, including with persons in
prison and with persons in re-education-through-labor
facilities. The State Department noted credible reports of
imprisonment, beatings and torture used against those who
refused to renounce the Dalai Lama. 2001 Report at 48; R.
at 234. The 2001 Report also corroborated Lhanzom’s claim
that her uncles, who were Tibetan lamas, would have been
subjected to especially harsh treatment by the government.
The 2001 Report thus corroborates much of Lhanzom’s
testimony.
The newest State Department Report on human rights in
China, issued in February 2005 (hereafter “2005 Report”),
confirms that China continues to persecute Tibetans. More
than 2000 Tibetans cross the border into Nepal each year,
although the Chinese government continues to try to
prevent Tibetans from leaving. The 2005 Report noted that,
in October 2003, for example, the Chinese government
executed a Tibetan who was forcibly returned to China from
Nepal, where he had been granted refugee status by the
United Nations High Commissioner for Refugees. 2005
Report at 35. In addition to the abuses of Tibetans detailed
in the 2001 Report on which Lhanzom relied, the 2005
Report has added extra-judicial killing to the list that
continues to include torture, arbitrary arrest, detention
without public trial and lengthy detention of Tibetans for
peacefully expressing political or religious views. 2005
Report at 54. “Tibetans repatriated to China from Nepal in
May 2003 reportedly suffered torture, including electric
shocks, exposure to cold, and severe beating, and were
forced to perform heavy physical labor.” 2005 Report at 57.
No. 04-2889 29
There were also reports that the Nepali government
cooperated with Chinese authorities to repatriate Tibetans
who crossed the border. 2005 Report at 57. We may take
judicial notice of this 2005 Report in support of the objective
reasonableness of Lhanzom’s fear of persecution on her
return to China. See Medhin v. Ashcroft, 350 F.3d 685, 690
(7th Cir. 2003) (court may take judicial notice of State
Department reports that are relevant to whether a peti-
tioner’s fear of future persecution is objectively reasonable).
This 2005 Report certainly suggests that a Tibetan who
escaped to Nepal, and then to India, and subsequently to
the United States, and who publicly protested China’s
treatment of Tibetans, would have a reasonable fear of
persecution if she is forcibly repatriated to China.
We see nothing in the record that impugns Lhanzom’s
credibility. See Korniejew, 371 F.3d at 386-87 (criticizing
the increasing reliance by the BIA and by IJs upon per-
ceived inconsistencies in testimony as the basis for ad-
verse credibility determinations, even in cases where the
alleged discrepancies are minor or easily explained).
“Persecution means punishment or the infliction of harm for
political, religious, or other reasons that this country does
not recognize as legitimate.” Firmansjah, 424 F.3d at 605.
If Lhanzom is credible, the government conceded that she
would meet the standard for having suffered persecution,
creating a presumption that the persecution will continue
upon her return. Zheng, 409 F.3d at 809. See also Iao, 400
F.3d at 532-33 (noting similar persecution of practitioners
of Falun Gong in China). The government has not even
attempted to rebut that presumption. See Firmansjah, 424
F.3d at 605 (the government may rebut the presumption
that the applicant will be persecuted by demonstrating
either a fundamental change in circumstances or that the
applicant could avoid persecution by relocating to another
part of the proposed country of removal); Asani v. INS, 154
F.3d 719, 722 (7th Cir. 1998) (same). See also
30 No. 04-2889
Ghebremedhin v. Ashcroft, 385 F.3d 1116, 1120 (7th Cir.
2004) (where a country’s history of persecuting a particular
religious sect is well known and nothing in the record
demonstrates that the petitioner would not face the same
dangers if returned there, petitioner may be entitled to a
grant of the petition for review). We therefore GRANT the
petition for review of her withholding and CAT claims and
REMAND for further proceedings consistent with this
opinion. We DISMISS her petition for lack of jurisdiction to
the extent it asks us to review her claim for asylum.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-5-05