* This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

 ** The Honorable James C. Mahan, United States District Judge for the

District of Nevada, sitting by designation.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAO QUN FENG,

 Petitioner,

v.

ERIC H. HOLDER Jr., Attorney General,

 Respondent.

No. 07-71673

Agency No. A098-002-222

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 6, 2009

Seattle, Washington

Before: PREGERSON and BEA, Circuit Judges, and MAHAN,** District Judge.

Shao Qun Feng (“Feng”) appeals from the BIA’s decision denying her

application for asylum. We have jurisdiction under 8 U.S.C. § 1252, and we

reverse.

FILED

NOV 12 2009

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
-2-

The Board of Immigration Appeals (“BIA”) conducted its own review of the

evidence and law in this case. Accordingly, our review “‘is limited to the BIA’s

decision, except to the extent the Immigration Judge’s (“IJ’s”) opinion is expressly

adopted.’” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting

Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). We review an IJ’s

credibility determination for substantial evidence. Malkandi v. Holder, 576 F.3d

906, 908 (9th Cir. 2009).

A trier of fact must consider “the totality of the circumstances, and all

relevant factors,” in making a credibility determination. 8 U.S.C. §

1158(b)(1)(B)(iii). Here, the IJ’s adverse credibility determination was based

entirely on inconsistencies between the English-language declaration attached to

the first asylum application and Feng’s in-court testimony. That first asylum

application should not have been accepted into evidence by the IJ at Feng’s merits

hearing because the statements it contained cannot be reliably attributed to Feng.

There is very little evidence that the attorney who submitted the first asylum

application was authorized by Feng to do so. Feng was apprehended off the coast

of Puerto Rico in a boat with twenty-four other Chinese citizens. While she was in

detention in Puerto Rico, her family hired an attorney to represent her. She spoke

to the attorney’s Mandarin-speaking assistant on two occasions, for fifteen minutes
-3-

each time, but testified that she never saw or spoke with the actual attorney. The IJ

in Washington state had no record of any prior attorney representing Feng, and no

other attorney filed a formal entry of appearance on her case. See 8 C.F.R. §

1003.17(a) (“In any proceeding before an Immigration Judge in which the alien is

represented, the attorney . . . shall file a Notice of Appearance . . . .”). Feng

testified that she had no knowledge that the first attorney filed anything on her

behalf. There was insufficient evidence from which the court could conclude that

this first attorney was authorized to represent Feng.

Generally, “[t]he applicant’s signature establishes a presumption that the

applicant is aware of the contents of the application.” 8 C.F.R. § 208.3(c)(2). That

presumption is not triggered here. Feng explained at her merits hearing that while

she was detained in Puerto Rico, only the signature page of the first asylum

application was sent to her for her signature. More importantly, the signature page,

as with the rest of the asylum application, is in English. There is no evidence in

the record indicating that Feng speaks or reads English. At oral argument the

government agreed that Feng does not speak or read English. There is therefore no

presumption that Feng was aware of the contents of that first application.

Furthermore, “faulty or unreliable translations can undermine the evidence

on which an adverse credibility determination is based.” He v. Ashcroft, 328 F.3d
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593, 597 (9th Cir. 2003) (citing Balasubramanrim v. INS, 143 F.3d 157, 162-64

(3d Cir. 1995)). It is undisputed that Feng speaks Cantonese and not Mandarin, the

language spoken by the first attorney’s assistant. The difference between these

languages is significant enough that the first IJ before whom Feng appeared

insured that Feng received a Cantonese and not a Mandarin interpreter. See

Richard Warren Perry, The Logic of the Modern Nation-State and the Legal

Construction of Native American Tribal Identity, 28 Ind. L. Rev. 547, 568 n.105

(1995) (noting that spoken Cantonese and Mandarin are not for the most part

mutually intelligible); Cindy Collins, Guests, Not Strangers . . . Refining the Inner

‘Ear’ to Strengthen Global Client Ties, 18 No. 20 Of Counsel 14, 16 (“Chinese

characters are the same in Mandarin and Cantonese but the pronunciations are

radically different, depending on what part of the country the speaker is from.”). 

The first asylum application was not sufficiently reliable because there is nothing

to establish that Feng understood the language of the attorney’s assistant.

The fact that some questions in the first asylum application were accurately

answered does not affect our decision. The questions which were accurately

answered were simple and perfunctory, including dates, locations and occupations,

which are easier to translate. See Singh v. INS, 292 F.3d 1017, 1022 (9th Cir.

2002) (holding that where petitioner did not speak the same language of his
1 While the Singh court considered the reliability of statements made in an

airport interview and not an asylum application, we believe that the Singh court’s

attention to the language difficulties experienced by the petitioner in that case to be

key. The dissent is correct that the court in Singh examined other factors which

buttressed the court’s conclusion that the short airport interview conducted in a

language the petitioner did not understand lacked “sufficient indicia of reliability

and accuracy on its own to constitute substantial evidence supporting an adverse

credibility determination.” Id. at 1024. The dissent relies upon these other factors

to distinguish this case from Singh. The Singh court’s “principal concern,”

however, was how the language barriers undermined its confidence in the accuracy

of the interview statements. Id. at 1022.

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translator, the resulting translated statement which included accurate answers to

some perfunctory questions “lacked sufficient indicia of reliability and accuracy on

its own to constitute substantial evidence supporting an adverse credibility

determination”).1

Without the first asylum application, which never should have been

admitted, substantial evidence does not support the IJ’s adverse credibility finding. 

Feng testified consistently with the other record evidence that she suffered two

forced abortions. The law is clear that suffering a forced abortion as part of a

coercive population control measure constitutes past persecution. 8 U.S.C. §

1101(a)(42). The IJ agreed that, if Feng were considered credible, “she would

have established past persecution and therefore would be granted asylum.”
2 Because we hold that substantial evidence did not support the IJ’s adverse

credibility and reverse on that basis, we do not reach the issue of Feng’s claim of

ineffective assistance of counsel.

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CONCLUSION

Substantial evidence does not support the adverse credibility finding in this

case. We reverse and remand to BIA for further proceedings on the merits of

Feng’s asylum application, excising the first, tainted asylum application from the

evidence.2

REVERSED and REMANDED.
1 Where would such accurate and personal information come from but from

Feng? Sure, it is only circumstantial evidence Feng produced the information for

the application, but as Henry David Thoreau said, “Some circumstantial evidence

is very strong, as when you find a trout in the milk.” Henry David Thoreau,

Journal, Nov. 11, 1850, 2 Journal of Henry D. Thoreau 94 (Bradford Torrey &

Francis H. Allen eds. 1962). The amount of accurate personal information in

Feng’s first application is strong circumstantial evidence Feng produced it,

especially in view the record does not establish any other source for the

information transmitted by the retained attorney’s assistant. Remember, there was

no evidence another Feng family member was supplying the information in a loud

stage whisper.

The majority dedicates a substantial portion of its analysis to evidence that

Feng did not understand the language used to prepare the application and didn’t

know what she was signing. Not a word though as to how detailed personal

information could have snuck into the application but for Feng. Nor is there any

explanation why the application got the “kicked-down-the-stairs-by-a-governmentofficial” story wrong but got her school’s name and her son’s birth date right.

1

BEA, Circuit Judge, dissenting.

I respectfully dissent. The IJ did not err when he admitted Feng’s first

asylum application into evidence because it contained sufficient indicia of

reliability to allow a trier of fact to conclude the information in that asylum

application came from Feng: accurate biological, family, education, and work

history information.1 Because Feng’s answers in her first application were

inconsistent with answers in her second application and with her asylum hearing

testimony, there is substantial evidence in the record from which the IJ could have

concluded Feng was not credible. Therefore, I would deny Feng’s petition for

review.

FILED

NOV 12 2009

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

United States immigration authorities apprehended Feng, a native and

citizen of China, when she attempted to enter Puerto Rico. Feng’s family hired an

attorney they knew had a Mandarin-speaking assistant to prepare Feng’s asylum

application, and told Feng that her attorney had a Mandarin-speaking assistant. 

Feng spoke with the assistant twice by telephone for fifteen minutes each time, and

Feng asked the assistant to prepare an asylum application for her. The attorney

prepared Feng’s asylum application and sent it to her. The application was written

in English. There is no evidence in the record that Feng can read English, and no

one translated the application for her. Nevertheless, she signed the signature page

of the application. The attorney attempted to file the application, but it was

rejected because Feng had not yet been served with a Notice to Appear. Later,

Feng hired a new attorney who filed a second asylum application.

The primary basis for the IJ’s adverse credibility finding was that there were

inconsistencies between Feng’s first asylum application and her asylum hearing

testimony, as well as between Feng’s first and second asylum applications. These

inconsistencies are clear and undisputed. For example, Feng stated in her first

asylum application that government officials came into her home and kicked her

down the stairs, which caused the death of her fetus. However, Feng testified that

a doctor discovered she was pregnant during a regular checkup and performed an
3

abortion over her objection.

This court must affirm an IJ’s credibility determination if it is supported by

substantial evidence. Malkandi v. Holder, 576 F.3d 906, 908 (9th Cir. 2009). 

Evidence that lacks sufficient indicia of reliability and accuracy does not constitute

substantial evidence. See Singh v. INS, 292 F.3d 1017 (9th Cir. 2002). The

majority holds the first application was not sufficiently reliable and cannot

constitute substantial evidence because Feng speaks Cantonese whereas the

attorney’s assistant who interviewed Feng to prepare Feng’s first application spoke

Mandarin.

In Singh, the IJ found Singh not credible based on inconsistencies between

Singh’s statements during an airport interview with an INS officer and his

testimony before the IJ. Id. at 1019. The translator who participated in the airport

interview spoke Hindi, a language Singh, a native Punjabi speaker, understood

only “a little.” Id. at 1020. The government contended that “the accuracy of

Singh’s answers to some of the questions during the interview demonstrate[d] that

translation was not a problem.” Id. at 1022. However, this court explained that

those questions “were simple in nature, involving such items as his name, place

and date of birth.” Id. The inconsistent answers were given in response to

questions that presented greater translation difficulty, for example, “a legal term of
4

art such as ‘persecution.’” Id. Therefore, this court held that the airport interview

transcript “lacked sufficient indicia of reliability and accuracy on its own to

constitute substantial evidence supporting an adverse credibility determination.” 

Id. at 1022.

The instant case is distinguishable from Singh. Feng had multiple

opportunities during her asylum hearing to explain the inconsistencies between her

first application and both her second application and her testimony. But at no point

did she state that she did not understand Mandarin or that she had difficulty

communicating with the attorney’s assistant. In fact, Feng testified that her

relatives hired an attorney they knew had a Mandarin-speaking assistant. Singh, on

the other hand, was forced to rely on the government-provided translator who

spoke a language Singh spoke only “a little.” Id.

Additionally, two factors this court relied upon to support its holding in

Singh are not relevant in this case. First, the court in Singh explained that the

questions asked during an airport interview are not designed to elicit as detailed a

response as an asylum application. Therefore, the alien may later, in response to

more detailed questions, reveal details that appear inconsistent with an airport

interview. Id. at 1023. Second, the court in Singh explained that arriving aliens,

particularly those who have been abused during interrogations by their
5

government, may be reluctant to share information with government officials upon

their arrival to the United States. Id. at 1024. Here, however, Feng’s inconsistent

statements were not the product of an airport interview; rather, they were her

responses to the questions in an asylum application. Further, Feng was not being

interrogated by a government official—she was talking with the assistant of an

attorney hired by her family.

Absent evidence of translation difficulties between Feng and the attorney’s

assistant, the IJ could have reasonably concluded, based on the accuracy of the

responses in the first application, that Feng provided the information in the first

application. The first application contained accurate responses to numerous

questions, including her: first, middle, and last name; sex; marital status; date, city,

and country of birth; nationality; date of entry into the U.S.; most recent address in

China; husband’s name and date of birth; son’s name and date of birth; educational

history, including the name and type of school; and parents’ names and places of

birth. On this basis, the IJ could have reasonably concluded the rest of the

statements in the first application were also made by Feng. 

Based on the inconsistencies between Feng’s first application and both her

second application and her testimony before the IJ, substantial evidence supports

the IJ’s finding that Feng was not credible. Therefore, I respectfully dissent.