Ai Zhi v. Eric Holder, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AI JUN ZHI, No. 10-71591
Petitioner,
Agency No.
v. A099-890-509
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued October 16, 2012
Submitted September 16, 2013
Honolulu, Hawaii
Filed May 16, 2014
Before: Stephen Reinhardt, Sidney R. Thomas,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
2 ZHI V. HOLDER
SUMMARY*
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ denial of asylum and withholding of
removal.
The panel held that substantial evidence did not support
the IJ’s adverse credibility determination based on a
discrepancy in dates in the documentary evidence, given that
other evidence in the record corroborated petitioner’s
explanation that one of the documents included an incorrect
date due to a typographical error.
The panel held that the IJ erred by relying on petitioner’s
short-lived marriage to a United States citizen to question his
credibility because the IJ failed to consider petitioner’s
explanation for the termination of his marriage, never
questioned petitioner about why he entered the United States
on a B-1 business visa, rather than a K-1 fiancé visa, and
failed to give any consideration to petitioner’s testimony that
his wife never filed a visa petition for him, which undermined
the IJ’s speculation and conjecture that petitioner married
solely to remain in the country.
The panel held that the IJ also failed to provide petitioner
with proper notice and a reasonable opportunity to produce
corroborating evidence, as required by Ren v. Holder, 648
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ZHI V. HOLDER 3
F.3d 1079, 1090-92 (9th Cir. 2011). The panel remanded for
further proceedings.
COUNSEL
Jisheng Li (argued), Honolulu, Hawaii, for Petitioner.
Ethan B. Kanter (argued), Senior Litigation Counsel; Tony
West, Assistant Attorney General; Richard M. Evans,
Assistant Director; Andrew Jacob Oliveira, Trial Attorney,
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C., for
Respondent.
OPINION
PAEZ, Circuit Judge:
Petitioner Ai Jun Zhi, a Chinese citizen, petitions for
review of the denial of his application for asylum and
withholding of removal. As we explain below, one of the
bases for the immigration judge’s (“IJ”) adverse credibility
determination is not supported by substantial evidence and
another must be set aside and remanded as a result of legal
error. The IJ also failed to provide Zhi with proper notice and
a reasonable opportunity to produce corroborating evidence,
as required by our opinion in Ren v. Holder, 648 F.3d 1079,
1090–92 (9th Cir. 2011). We therefore grant Zhi’s petition
and remand for further proceedings.
4 ZHI V. HOLDER
I.
Zhi has primarily lived outside of China since 1998, first
in Saipan and later in Guam. From 1992 to 2002, Zhi was
married to a Chinese citizen, with whom he has two
daughters.1 On August 17, 2005, Zhi entered Guam on a B-1
non-immigrant visa, and married a United States citizen,
Shirley Munos Santos, six days later. The couple divorced on
December 21, 2006. Santos did not file a visa petition on
Zhi’s behalf during their marriage.
In 2004, Zhi opened a bookstore in China, which he
intended to be a source of income when he returned. His
brother-in-law, Hong Zhang, managed the store. Zhi testified
that in April 2005, Zhang called Zhi to ask if Zhang’s friend,
a Falun Gong practitioner, could keep books about Falun
Gong in the bookstore. Zhi agreed. Zhi testified that on
February 13, 2006, the local police found out about the books
and closed the bookstore. The police detained Zhang for two
days, but then released him after learning that Zhi owned the
bookstore.
Zhi received a phone call from his father the day the
police closed the bookstore. Zhi’s father told him never to
come back to China or contact either of his parents again, and
then promptly hung up. The police searched Zhi’s parents’
home and informed them that if they did not report Zhi upon
his return to China, Zhi’s parents would bear responsibility
for his criminal actions. Zhi also received a call from a friend
who told Zhi the police had issued a warrant for Zhi’s arrest
and had charged him as a Falun Gong cultist.
1
One of Zhi’s daughters is a U.S. citizen who lives with him in Guam.
ZHI V. HOLDER 5
Zhi proffered four letters from family and friends
explaining what had happened in more detail and warning
him not to return to China. Zhi’s friend, Jian Ming, mailed
Zhi’s mother’s letters to avoid detection by undercover
Chinese authorities who Zhi’s mother believed were
monitoring her mail. Ming explained in his own letter that he
was afraid to help Zhi and would not do so again. He asked
Zhi to avoid further contact with him.
Zhi’s mother reported in her two letters that the police
closed his bookstore on February 13, 2006. Zhi’s sister,
however, wrote that police closed the bookstore on February
13, 2005. When asked about the discrepancy at his asylum
hearing, Zhi testified that his sister told him during a
telephone conversation that she wrote the year down wrong.
In September 2007, Zhi received a notice to appear for
removal proceedings. He conceded removability and
requested relief in the form of asylum and withholding of
removal on the basis of imputed political opinion. The IJ
denied Zhi’s application on August 27, 2008. In her oral
decision, she explained that Zhi did not present credible
evidence establishing a well-founded fear of future
persecution. Although she relied primarily on the
inconsistency concerning the year Zhi’s bookstore closed, she
explained that the discrepancy in dates was particularly
significant in light of the timing of Zhi’s “very short-lived
marriage to a U.S. citizen,” which she interpreted as an
“attempt[] to remain in the United States.” The IJ also based
her decision on Zhi’s failure to submit reasonably available
corroborating evidence.
6 ZHI V. HOLDER
The Board of Immigration Appeals (“BIA”) affirmed the
IJ’s decision on April 23, 2010. Zhi timely appealed. We
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
II.
Where, as here, the BIA adopts the IJ’s decision and also
contributes its own reasoning to the analysis, we review both
decisions.2 Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.
2005).
We review factual findings, including adverse credibility
decisions, under the deferential substantial evidence standard.
Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312 (9th Cir.
2012). We may reverse factual determinations only when
“any reasonable adjudicator would be compelled to conclude
to the contrary” based on the evidence in the record. 8 U.S.C.
§ 1252(b)(4)(B). We review de novo questions of law and
mixed questions of law and fact. Mendoza-Pablo, 667 F.3d
at 1312.
A.
An asylum applicant bears the burden of establishing his
claim through credible evidence. See 8 U.S.C.
§ 1158(b)(1)(B)(i), (iii). For applications filed after May 11,
2005, such as Zhi’s, the credibility standards set forth in the
REAL ID Act apply. See Pub. L. 109-13, Div. B, Title I,
§ 101(h)(2), 119 Stat. 231 (May 11, 2005). Although an IJ
may base her adverse credibility determination on “any . . .
2
The BIA’s three-page order stated, in part, “we affirm the Immigration
Judge’s legal conclusions for the reasons stated by the Immigration Judge
in the August 2008 decision (I.J. at 4–11).”
ZHI V. HOLDER 7
relevant factor,” she must do so in light of “the totality of the
circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii); Shrestha v.
Holder, 590 F.3d 1034, 1040 (9th Cir. 2010). In other words,
the IJ “cannot selectively examine evidence in determining
credibility, but rather must present a reasoned analysis of the
evidence as a whole.” Tamang v. Holder, 598 F.3d 1083,
1093 (9th Cir. 2010); see also Bassene v. Holder, 737 F.3d
530, 538 (9th Cir. 2013) (stating that an IJ must view
“purported inconsistencies in light of all the evidence
presented in the case” (internal quotations and citations
omitted)). The IJ cannot “cherry pick solely facts favoring an
adverse credibility determination while ignoring facts that
undermine that result,” Shrestha, 590 F.3d at 1040, and must
consider the petitioner’s explanation for any inconsistency
that is “cited as a factor supporting an adverse credibility
determination,” id. at 1044. Under the REAL ID Act, an IJ
may base credibility determinations on factors that do not
“go[] to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Ren, 648 F.3d at 1084 (recognizing
abrogation of the Ninth Circuit’s “heart of the claim” test).
However, an IJ cannot base an adverse credibility
determination solely on an “utterly trivial inconsistency” that
“under the total circumstances [has] no bearing on a
petitioner’s veracity.” Shrestha, 590 F.3d at 1043–44.
The principal basis for the IJ’s adverse credibility finding
was that Zhi’s sister identified the date of the bookstore
closure as February 13, 2005, while Zhi and his mother dated
the closure on February 13, 2006. The IJ rejected Zhi’s
explanation that his sister merely “wrote down the year
wrong” in her letter. The IJ stated that, while she may
otherwise have considered the sister’s date a typographical
error, she refused to do so here because Zhi only offered his
explanation after he was questioned about it on cross-
8 ZHI V. HOLDER
examination. The IJ characterized the inconsistency as a
“major discrepancy” because Zhi relied heavily upon the
letters to establish his fear of persecution, and because it was
Zhi’s sister’s husband who ran the bookstore. The BIA
agreed, explaining that Zhi’s testimony about the closure date
was central to his evidence establishing “the circumstances
for which the Chinese government allegedly seeks to harm
him.”
The BIA and IJ ignored critical evidence that undermines
the adverse credibility determination. In her oral decision,
the IJ rejected Zhi’s argument that he had suffered past
persecution because of extreme economic deprivation. In
doing so, the IJ described the business receipts that Zhi
presented as “credible evidence.” These receipts include a
business license renewal dated December 26, 2005, and
twelve additional government-stamped receipts dated
between February 13, 2005, and February 13, 2006. The last-
dated receipt was from January 31, 2006. These receipts
support Zhi’s explanation that his sister made a mistake when
she dated her letter. They also bolster Zhi’s testimony
identifying the closure date as February 13, 2006.
In light of this significant record evidence, we conclude
that substantial evidence does not support the BIA’s
determination that the conflict in dates resulted in a legally
significant discrepancy in the evidence. In light of the
receipts, “no reasonable factfinder,” I.N.S. v. Elias-Zacarias,
502 U.S. 478, 481 (1992), could have determined that the
discrepancy in dates was anything but an “utterly trivial
discrepancy” that “under the total circumstances [has] no
bearing on [Zhi’s] veracity,” see Shrestha, 590 F.3d at
1043–44. The evidence overwhelmingly supports Zhi’s
explanation that his sister, in either a slip of pen or a slip of
ZHI V. HOLDER 9
memory, misstated the year of the closure. Zhi’s testimony,
his mother’s two letters, the fact that his sister stated the same
date but a different year, the business license renewal, and the
twelve other receipts dated between February 13, 2005 and
February 13, 2006, all support Zhi’s dating of the bookstore
closure and his explanation that his sister made a mistake
when she dated her letter. We therefore conclude that
substantial evidence does not support the agency’s finding
that the discrepancy in dates undermines Zhi’s credibility.
B.
Although the IJ relied principally upon the discrepancy in
dates to support her decision, she also indicated that Zhi’s
“very short-lived marriage” to Santos after arriving in Guam
was suspect. The IJ concluded that Zhi’s marriage to Santos
was an “attempt[] to remain in the United States,” and found
it particularly significant that Zhi had entered Guam on a B-1
non-immigrant visa rather than a K-1 visa.3
The IJ made three legal errors in her treatment of Zhi’s
marriage to Santos. First, the IJ failed to consider Zhi’s
3
The applicable federal regulations explain that a B-1 visa is for
business purposes and does not lead to status as a lawful permanent
resident. 8 C.F.R. § 214.2(b)(1) (“Any B-1 visitor for business . . . may
be admitted for not more than one year and may be granted extensions of
temporary stay in increments of not more than six months.”). A K-1 visa,
which an immigrant who plans to marry a U.S. citizen promptly after
arrival may acquire, leads to status as a lawful permanent resident.
8 C.F.R. § 214.2(k)(6)(ii) (“Upon contracting a valid marriage to the
petitioner within 90 days of his or her admission as a nonimmigrant
pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-
1 beneficiary and his or her minor children may apply for adjustment of
status to lawful permanent resident.”).
10 ZHI V. HOLDER
explanation for why his marriage ended after just sixteen
months.4 An IJ must consider and address “[a]ll plausible and
reasonable explanations for any inconsistencies” that form the
basis of an adverse credibility determination. Chen v. I.N.S.,
266 F.3d 1094, 1100 (9th Cir. 2001), judgment vacated on
other grounds, sub nom. I.N.S. v. Yi Quan Chen, 537 U.S.
1016 (2002); see also Osorio v. I.N.S., 99 F.3d 928, 933 (9th
Cir. 1996) (explaining that an IJ must “address in a reasoned
manner the explanations that [an applicant] offers for . . .
perceived inconsistencies”). Insofar as the IJ found the “very
short-lived” term of Zhi’s marriage to be probative of Zhi’s
motives for marriage and his overall credibility, it was error
4
The IJ’s exchange with Zhi about his marriage was limited to the
following:
Q: Did your second wife Shirley, the U.S. citizen, file
a visa petition before you divorced?
A: No, she didn’t.
Q: Did you state that you married her on August 23,
2005?
A: Yes.
Q: And did you state that the divorce was December 21,
2005?
A: No, that was the year 2006, December 21st, year
2006.
Q: Why did the marriage fail in such a short time?
A: We just were holding different opinions and that
causes (sic) the divorce.
ZHI V. HOLDER 11
to draw an adverse inference without first considering and
addressing Zhi’s explanation.
Second, although there are multiple possible reasons why
Zhi might have entered Guam on a B-1 non-immigrant visa
instead of a K-1visa, the IJ never questioned Zhi on the
matter. The IJ could not properly base her adverse credibility
determination on Zhi’s entry visa without first soliciting his
explanation for why he entered on a B-1 visa. See Soto-
Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir. 2009)
(holding that the IJ cannot base an adverse credibility
determination on a discrepancy without first asking the
applicant about it and giving him an opportunity to explain);
Ming Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111,
121–22 (2d Cir. 2006) (explaining that, where the IJ chooses
to rely on a basis for an adverse credibility determination that
is not “plainly obvious or dramatic,” the IJ must identify the
issue and provide the applicant with an opportunity to offer
an explanation). Here, the IJ engaged in speculation about
the meaning of Zhi’s entry visa instead of probing into the
matter to “develop[] a complete and accurate record on which
to decide [Zhi’s] asylum claims,” as was her adjudicatory
obligation. See Ming Shi Xue, 439 F.3d at 118–19 (citing
8 U.S.C. § 1229a(b)(1)). It is axiomatic that “[s]peculation
and conjecture cannot form the basis of an adverse credibility
finding, which must instead be based on substantial
evidence.” Shah v. I.N.S., 220 F.3d 1062, 1071 (9th Cir.
2000); see also Chawla v. Holder, 599 F.3d 998, 1004 (9th
Cir. 2010) (“[S]peculation cannot be used to support [an]
adverse credibility finding.”); Lopez-Reyes v. I.N.S., 79 F.3d
908, 912 (9th Cir. 1996) (explaining that an IJ must offer a
specific and cogent reason for his adverse credibility
determination and that “conjecture is not a substitute for
substantial evidence”). Insofar as the IJ relied upon Zhi’s
12 ZHI V. HOLDER
entry visa to conclude that Zhi married solely to remain in the
country, she impermissibly based her conclusions on
“speculation and conjecture,” instead of seeking an
explanation that might have clarified the matter.
Last, and most important, the IJ did not give any
consideration to Zhi’s testimony that Santos never filed a visa
petition for him. This proof-in-the-pudding fact undermines
the IJ’s assumption that Zhi married Santos to stay in the
United States. As with the business receipts, the IJ violated
her duty to consider and address “relevant evidence that tends
to contravene a conclusion that a given factor undermines
credibility.” See Shrestha, 590 F.3d at 1044.
The IJ committed several errors in her treatment of Zhi’s
marriage to Santos. On remand, the BIA and IJ must
consider Zhi’s explanation for why his marriage ended after
sixteen months, provide Zhi with an opportunity to explain
his visa decision, and take into account the probative fact that
Santos did not file a visa petition.
C.
We next address the third and final basis for the decision
below: Zhi’s failure to submit corroborative evidence. Under
the REAL ID Act, “[w]here the trier of fact determines that
the applicant should provide evidence that corroborates
otherwise credible testimony, such evidence must be
provided unless the applicant does not have the evidence
and cannot reasonably obtain the evidence.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). The Real ID Act thus allowed the IJ to
demand that Zhi provide corroborative evidence to meet his
burden of proof. The BIA affirmed the IJ’s ruling that Zhi
“has not submitted reasonably available corroborative
ZHI V. HOLDER 13
evidence to substantiate his claim of an objective fear of
persecution.” Specifically, the IJ found it persuasive that Zhi
did not provide letters or information from the Falun Gong
practitioner who used Zhi’s bookstore, other Falun Gong
practitioners who purchased books there, or Falun Gong
officers living in Guam or Saipan.
Zhi argues that he was “never put on notice” that he
needed to produce the corroborative evidence identified by
the IJ in her oral decision and was not given an opportunity
to explain his failure to do so.5 In Ren, we held that the IJ
must provide an otherwise credible applicant with “notice and
an opportunity to either produce the evidence or explain why
it is unavailable.”6 648 F.3d at 1090–92 & n.13. The court
based its reasoning on a plain reading of the statute’s “future-
oriented” text. Id. at 1091. In particular, we determined that
the following three clauses dictate that the IJ must provide
5
The government argues that we do not have jurisdiction to hear this
argument because Zhi did not raise the argument before the BIA.
Although Zhi did not expressly raise the issue of notice in his brief to the
BIA, he did argue to the BIA that “the IJ’s adverse credibility finding
must be set aside” and that his fear of returning to China was “also
corroborated by letters from his sister and mother.” With this argument,
Zhi challenged the IJ’s overall credibility determination and denial of his
claims for asylum and withholding of removal. The “notice” requirement
is a sub-part of that overall determination, and we therefore have
jurisdiction over this issue. See Ren, 648 F.3d at 1084.
6
Other circuits that have addressed whether an IJ must provide notice
before requiring corroboration have split on the issue. In Ren, we aligned
with the Third Circuit’s decisions in Chukwu v. Attorney Gen. of U.S.,
484 F.3d 185, 192 (3d Cir. 2007) and Toure v. Attorney Gen. of U.S.,
443 F.3d 310, 324 (3d Cir. 2006). The Second and Seventh Circuits have
reached the opposite conclusion. See Liu v. Holder, 575 F.3d 193, 198 (2d
Cir. 2009); Rapheal v. Mukasey, 533 F.3d 521, 530 (7th Cir. 2008).
14 ZHI V. HOLDER
notice: First, the requirement that an applicant “should
provide evidence,” not that he “should have provided
evidence”; second, the phrasing that evidence “must be
provided,” rather than “must have been provided”; and third,
the final clause concerning an applicant who “does not have”
and “cannot reasonably attain” corroborating evidence. Id. at
1091–92. Because “the grammatical structure of the
controlling clause makes the provision’s meaning absolutely
clear,” id. at 1091, we gave effect to the “unambiguously
expressed intent of Congress” that the IJ must provide notice
and an opportunity to the applicant of the corroborative
evidence necessary to carry the applicant’s burden of proof,
see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843 (1984). Further, we explained that the
canon of constitutional avoidance favors the notice
requirement because the Fifth Amendment right to a “full and
fair hearing” provides the applicant with “a reasonable
opportunity to present evidence on his behalf.” Ren, 648 F.3d
at 1092 (internal quotations and citations omitted).
Applying Ren here, we hold that the IJ erred because she
did not provide notice to Zhi that he was required to present
the corroborative evidence she referred to in her decision.
Nor did the IJ give Zhi an opportunity to explain why such
evidence might be unavailable.
This case illustrates well the importance of Ren’s holding.
The record suggests that Zhi’s sources put themselves at risk
of persecution to deliver the letters he presented to the IJ. His
mother explained that government officials threatened her
and are monitoring her outgoing mail. Zhi’s father told him
never to contact his parents again. And, Ming, Zhi’s friend
who mailed his mother’s letters in secrecy to avoid
government interception, is so concerned about being
ZHI V. HOLDER 15
persecuted himself that he told Zhi that he could no longer
provide him with assistance. If the Chinese government has
placed these individuals surrounding Zhi under a close eye,
it surely follows that the actual practitioner of Falun Gong
who stored materials in the bookstore would face serious risk
if he provided a written statement to Zhi that amounted to an
admission of guilt in China. Further, even if Zhi were able to
obtain such a statement, the Falun Gong practitioner may not
be able to send it “in the same manner as the letters from his
family and friends,” as the BIA presumed was possible,
because Zhi’s parents and Ming have asked Zhi not to contact
them again. In sum, it would be a tragic irony if an applicant
for asylum seeking shelter from government persecution was
required to put others at imminent risk of the same
government persecution to establish the viability of his
application. Cf. Zhou v. Gonzales, 437 F.3d 860, 866 (9th
Cir. 2006) (holding that it was impermissible for the IJ to
give diminished weight to warrants because they were faxed
when the applicant’s family would have faced criminal
prosecution for sending the originals).
To be clear, Zhi does not argue on appeal that the
requested corroborative evidence is unavailable, and we do
not so hold. Indeed, there may be ways for Zhi to access the
information the IJ requests.7 We recount these facts only to
underline the difficulty of Zhi’s situation and the purpose that
notice and opportunity will serve. The REAL ID Act
requires, as we recognized in Ren, that the IJ provide Zhi with
an opportunity to navigate the risks and logistical complexity
7
For instance, Zhi’s sister mailed her letter directly to Zhi and did not
express any fear that she faced government persecution for corresponding
with him. She may be able to assist in sending additional information to
Zhi without facing serious risk of persecution.
16 ZHI V. HOLDER
in obtaining the requested corroborative evidence or, in the
alternative, an opportunity to explain why it is not reasonably
available.
III.
We hold that the BIA and IJ erred in arriving at their
adverse credibility determination. They must revisit the
adverse credibility determination in light of this opinion. See
id. If additional corroborative evidence is deemed necessary
for Zhi to carry his burden of proof, then the notice
requirements in Ren apply. For the reasons stated above, we
grant Zhi’s petition and remand for further proceedings
consistent with this opinion.
PETITION GRANTED and REMANDED.