In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3245

SAN KAI KWOK and YU YAN YUENG,

Petitioners,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A77-050-885

No. A77-050-886

____________

ARGUED MAY 4, 2006—DECIDED JULY 25, 2006

____________

Before POSNER, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge. Yu Yan Yueng and her son San

Kai Kwok applied for asylum, alleging that Chinese family

planning officials forced her to undergo an involuntary

abortion. An immigration judge denied the application,

finding that Yueng and San Kai were not credible and had

not demonstrated either past persecution or a reasonable

fear of future persecution. Because the IJ’s adverse credibility finding is speculative and not supported by substantial evidence, we grant the petition for review.
2 No. 05-3245

I.

We take the facts that gave rise to this case from the

testimony the petitioners gave at their asylum hearing.

Yueng testified at the hearing that she, her adult son San Kai

Kwok (who was a minor when he and Yueng applied for

asylum in 2000), and her husband Ho Kwok are from

Tingjiang, Fujian province, China, where Ho Kwok still

resides. She is illiterate, with only two years of primary

education. In 1983, after San Kai was born, Yueng submitted to the mandatory implantation of an IUD prophylactic device, but at some unknown time it “slipped out.”

Yueng testified that in October 1999 she learned she was

pregnant. She went into hiding, she said, to prevent the

“brigade” from aborting her pregnancy, and stayed at a

cousin’s house in the provincial capital of Fuzhou, about “45

minutes by bus” from her own home. She alleged that after

one of her cousin’s neighbors reported her to the government, “officials from the brigade” began searching for her.

She testified that the officials went to her house twice “in

February 1999,” after she had gone into hiding. Her attorney

noticed the impossibility of the dates—that she learned of

her pregnancy in October 1999 and authorities consequently

began searching for her in February 1999. When her attorney pressed her to clarify the timeline, however, the IJ told

him, “She, she answered two times already. Move on to the

next question.”

That same February, according to Yueng’s testimony,

her father-in-law informed her that San Kai had been

seized and imprisoned by the authorities, both to question

him about her whereabouts and to pressure her to come

forward. She specified at least twice that this happened in

1999. That same month, she testified, family planning

officials came to her house twice trying to find her; on the
No. 05-3245 3

second occasion, apparently about a week after she learned

that San Kai had been imprisoned, they found her and

seized her. In recounting this chronology, however, she

specifically testified that the month in question was February 2000. The IJ, now realizing the confusion, attempted to

clarify the timeline and asked Yueng whether she was

certain that all of the events in question occurred in February 2000. She affirmed that she was sure. When he pointed

out that she had first pegged the events as happening in

1999, Yueng replied, “Well, because I’m illiterate I didn’t

receive a lot of education, and so I have a slip of tongue, and

I made a mistake. . . . I did confuse ‘99 and 2000.”

During her cross-examination, the government attorney

asked Yueng about her extended family. She testified that

she has six siblings, two of whom have two children each,

and that her husband also has multiple siblings, but that

those brothers and sisters all live in the United States. The

government then asked Yueng whether she had an “abortion certificate,” to which she replied that “all these certificates were taken away by the officials in our brigade, so I

don’t have any.” Yueng also said that her husband

had joined her in hiding. The government pointed out that a

letter from Ho Kwok had been offered as an exhibit, but that

while he otherwise corroborated her account he said

nothing about hiding from authorities—only that he “placed

[his] wife in a secret place.” Yueng was unable to explain

why her husband’s letter had not mentioned his own flight

from the authorities.

After Yueng testified, San Kai took the stand. He said that

on February 1, 2000, during one of his classes at middle

school, “some officials from the brigade came . . . to take me

away.” He said that the officials “locked me up in a, in a

dark room, no light, and I, I cry all the time.” They ques-
4 No. 05-3245

tioned him about his mother’s whereabouts, and allegedly

treated him harshly: “The first couple days there’s no food.

They kept high pressure on me and what I could do is just

cry.” He told the authorities that he did not know where his

mother was, even though, he testified, “I knew at that time.”

He testified that he lost track of time in detention, but that

his parents later told him that he had been locked up “for

about a week.” On cross-examination, the government

attorney asked San Kai if he had known where his mother

was while he was detained. He answered, contradicting his

earlier testimony, that he “didn’t know where she was.” He

explained, “what I met [sic] is that I didn’t know where she

was. . . . I could not tell them because I didn’t know.” On

redirect, he testified that he knew his mother’s whereabouts

after he was released, but not while he was “locked up.” San

Kai also testified that his mother “doesn’t have the ability to

communicate clearly with other people,” referring to

an apparent speech impediment, and that even he had

trouble understanding her.

The IJ then issued his decision, finding that the petitioners

were not credible and had failed to show either past persecution or a well-founded fear of future persecution if

returned to China. It was “Mrs. Yueng’s testimony, as

compared to [the written statement attached to her

asylum application] that is essentially the basis” for the

credibility finding. Her testimony, the IJ noted, was inconsistent both internally and with the written statement attached to her asylum application as well as with

her husband’s letter.

The first and most important inconsistency identified

by the IJ was whether the February of both her son’s alleged

abduction and her alleged abortion was in 1999 or in

2000—this discrepancy was the “key basis, which this Judge
No. 05-3245 5

relies on in finding the respondent’s testimony to be

incredible.” After summarizing Yueng’s confusion as to the

year and her explanation that she was illiterate, the IJ

dismissed that excuse as irrelevant. The IJ considered the

discrepancy to be significant: “There is a significant amount

of difference between the year 1999 and the year 2000. This

Judge is mindful that a mistake could have been made, but

this Judge is not convinced that a mistake was made.”

Although the IJ characterized this confusion as the

“central issue” to his credibility determination, he explained

that he would have ruled the petitioners incredible even if

Yueng’s testimony about the dates had been consistent. The

other factors he addressed were a lack of supporting

witnesses or documentation such as an abortion certificate,

whether Yueng’s husband joined her in hiding, whether her

son had known her whereabouts while he was detained,

where Yueng was taken into custody, whether or not she

surrendered herself, and why she and her husband’s

siblings were able to have multiple children. The IJ also

determined that Yueng failed to present necessary corroborating evidence such as an abortion certificate, the results of

a physical examination, documentation of a “bona fide”

marriage, and testimony or affidavits from family members

in the United States.

The BIA summarily affirmed the IJ’s decision in December

2004. Petitioners filed a petition for review in this

court. When petitioners discovered that a section of the

transcript was missing from the administrative record, the

BIA sua sponte reopened the case, and we granted the

parties’ joint motion to dismiss the petition for review

pursuant to Federal Rule of Appellate Procedure 42. The

BIA received and considered the transcripts that had been
6 No. 05-3245

omitted, and again adopted and affirmed the IJ’s ruling.

Yueng and San Kai petition for review of that ruling.

II.

The only issue on appeal is the IJ’s credibility finding.

Because Yueng filed her asylum application before the

REAL ID Act was passed, Pub.L. No. 109-13, 119 Stat. 231,

that statute does not affect the credibility analysis in this

case. See Diallo v. Gonzales, 439 F.3d 764, 766 n.1 (7th Cir.

2006) (REAL ID Act “allows an IJ to require a credible

applicant to provide corroborating evidence in certain

circumstances,” but not where petitioner filed an “asylum

application before May 11, 2005.”). Credibility determinations must be supported by cogent and specific reasons and

bear a legitimate nexus to the finding. Gjerazi v. Gonzales,

435 F.3d 800, 807 (7th Cir. 2006); Mansour v. I.N.S., 230 F.3d

902, 906 (7th Cir. 2000). Those reasons must “go to the heart

of the applicant’s claim.” Giday v. Gonzales, 434 F.3d 543, 550

(7th Cir. 2006). We give “substantial deference” to the

reasons the IJ gives for a credibility determination, and we

will reject such a determination only in “extraordinary

circumstances.” Id. But we have explicitly held that “adverse

credibility determinations should not be grounded in trivial

details or easily explained discrepancies” because such

bases lack the necessary “legitimate nexus to the finding.”

Korniejew v. Ashcroft, 371 F.3d 377, 387 (7th Cir. 2004)

(citation omitted). None of the bases relied upon by the IJ in

this case constitutes such a legitimate nexus.

A. Testimonial Inconsistencies

The first (and according to the IJ, most important) reason

for his determination was Yueng’s vacillation as to whether
No. 05-3245 7

the events in question happened in February 1999 or

February 2000. But “adverse credibility determinations may

not be based on minor discrepancies that are easily explained,” Shtaro v. Gonzales, 435 F.3d 711, 716 (7th Cir. 2006),

which precisely describes this discrepancy. Yueng, who

communicates poorly, confused the dates but consistently

identified the underlying events as occurring subsequent to

and being the result of her pregnancy in 1999. See Georgis v.

Ashcroft, 328 F.3d 962, 968 (7th Cir. 2003) (chronological

inconsistency insufficient to support adverse credibility

finding where petitioner “tried to place the event in question in its proper chronology even if she could not calculate

the correct date in our calendar system”). Yueng unambiguously testified that she went into hiding after learning in

October 1999 that she was pregnant, making it impossible

that she could have been referring to events in February

1999. Her testimony that she fled in October 1999 is consistent with the written statement she submitted with her

asylum application, which also dates her encounters with

the family planning authorities to February 2000. On appeal,

Yueng attributes her confusion to her illiteracy, poor

education, and general difficulty communicating. The IJ

dismissed her education as an explanation for the error, but

did not address her communicative difficulties or the

obvious fact that February 1999 was a nonsensical date. The

IJ’s analysis was therefore insufficient because he did not

“attempt to ascertain whether [the inconsistencies] could be

accounted for.” Shtaro, 435 F.3d at 716.

The petitioners also argue that the IJ improperly discredited them by relying on an apparent putative discrepancy as to whether Yueng’s husband hid from the authorities with her. The IJ wrote that, contrary to Yueng’s testimony her husband joined her in hiding at her cousin’s

home, her husband “did not accompany her.” But the record
8 No. 05-3245

1 Although the IJ characterizes this as an inconsistency between Yueng’s testimony and her written statement, he apparently meant to refer to Ho Kwok’s written statement, in which Ho

Kwok writes that his wife turned herself in to the township office.

contains no basis for this conclusion. Although Ho Kwok’s

written statement is silent as to whether he joined her in

hiding, nothing in it (or elsewhere in the record) contradicts

Yueng’s testimony that “he went into hiding with me, in my

place later.” The IJ’s assertion that Ho Kwok did not hide

with his wife is “unmoored from the record, based on

nothing but the IJ’s personal speculation or conjecture.”

Tabaku v. Gonzales, 425 F.3d 417, 421 (7th Cir. 2005); see also

Lin v. Ashcroft, 385 F.3d 748, 755-56 (7th Cir. 2004) (“The IJ’s

skepticism—utterly unsupported by any facts in the

record—with respect to [an element of petitioner’s testimony] does not form a valid basis for a negative credibility

determination.”). The IJ’s problematic findings on these

issues are sufficiently serious to call into question his

adverse credibility determination.

Other inconsistencies that the IJ identified are more

substantial, but not significant enough to support the

adverse credibility determination. The IJ wrote that Yueng

testified that she “was found in Fuzhou City,” but he

noted that the written statement in her asylum application “indicated that she surrendered herself to the township

office1

.” And as the government points out, Yueng testified

inconsistently as to the manner in which she was taken into

custody. At one point in the hearing, she clearly and

unambiguously testified that she did not turn herself in; not

long afterwards, however, she admitted that she did turn

herself in to the authorities in order to secure her son’s

release. Similarly, as the IJ also noted, San Kai testified
No. 05-3245 9

inconsistently about whether he knew where Yueng was

while he was detained. He testified that he knew where his

mother was while he was imprisoned, but during his crossexamination stated that he “didn’t know where she was.”

The IJ was entitled to question the petitioners’ credibility

based on these inconsistencies, but the other grounds for the

adverse credibility finding were too seriously flawed for us

to affirm it on this basis. See Tabaku, 425 F.3d at 423 (granting petition for review despite inconsistency that made

petitioner “less believable”); Georgis, 328 F.3d at 970 (in light

of five flawed bases for the challenged credibility finding,

“we are not inclined to defer to [that finding] on this

remaining sixth ground alone”).

B. Irrelevant Facts and Evidence

Petitioners next contend that the IJ relied on irrelevant

facts and evidence in finding them incredible. They specifically address the IJ’s assertion that Yueng, by conceding that

she and her husband have several siblings who have more

than one child apiece, inadvertently showed that the onechild policy is not currently enforced “in her village, in her

province.” We held in Zheng v. Gonzales, 409 F.3d 804 (7th

Cir. 2005), that where the record provides no details about

a petitioner’s nieces and nephews, “the childbearing

histories of [a petitioner’s] siblings and in-laws have only

limited relevance to her claim.” Id. at 810-11. The petitioners

correctly point out that the record here does not reflect

when Yueng’s nieces and nephews were born, so the IJ

could not know whether her siblings were even subject at

the time to the one-child policy. And even if they were,

reports entered into the record reflect that Fujian follows a

“one-and-a-half child policy” allowing couples to have a

second child if the first is a girl, and that some couples in
10 No. 05-3245

Fujian receive official permission to have an additional child

regardless. With regard to her husband’s siblings, several

live in the United States where there obviously is no government mandate limiting one child per family. The IJ’s

analysis on this point is again “unmoored from the record,

based on nothing but the IJ’s personal speculation or

conjecture.” Tabaku, 425 F.3d at 421.

C. Lack of Corroboration

Finally, the petitioners take issue with the IJ’s determination that they were incredible because they did not introduce corroborating evidence to support their claims.

Specifically, the IJ criticized Yueng for not submitting “any

documents to really establish that there is a marriage that’s

a bona fide relationship,” certification of the alleged abortion, a physician’s report to demonstrate that she had an

abortion, or supporting affidavits or testimony from family

members in the United States. But our precedent precludes

the IJ from demanding that they produce

such corroboration. Under the applicable pre-REAL ID

Act standard an “IJ who denies an asylum claim for lack of

corroboration must first make an express credibility

finding,” as well as “explain why it is reasonable to expect

corroboration and explain why the applicant’s reason for

not supplying corroboration is inadequate.” Diallo, 439 F.3d

764, 765-66 (citation omitted); see also Gontcharova v. Ashcroft,

384 F.3d 873, 877 (7th Cir. 2004). Most importantly, an IJ

may not require an applicant to submit irrelevant corroborating evidence. See Rodriguez Galicia v. Gonzales, 422 F.3d

529, 537 (7th Cir. 2005); Huang v. Gonzales, 403 F.3d 945, 951

(7th Cir. 2005).

The IJ’s requests were irrelevant. Whether or not Yueng

had a “bona fide relationship” with her husband has no
No. 05-3245 11

bearing on whether or not she was subjected to an involuntary abortion, and the IJ did not explain his reasoning to the

contrary. And since Yueng’s hearing, this court has twice

held that the sort of abortion certificate the IJ demanded

probably does not exist, and that applicants may not be

required to present them. See Zhang v. Gonzales, 434 F.3d

993, 999-1000 (7th Cir. 2006); Lin, 385 F.3d at 753-54. Indeed,

any applicants who do present such a certificate may find

that it counts against their credibility. See Huang v. Gonzales,

No. 05-1711 (7th Cir., July 14, 2006). And as for the other

medical testimony the IJ requested, nothing in the record

suggests that it would be possible for Yueng to obtain a

physical examination in this country that would corroborate

an abortion performed several years earlier. Accordingly,

the IJ failed to explain why it was reasonable to require this

evidence. See Diallo, 439 F.3d at 766. Finally, the IJ neglected

to explain why Yueng and San Kai needed family members

in the United States to testify on their behalf. Nothing in the

record suggests that the petitioners’ family members here in

the United States were present for, witnessed, or have

particular knowledge of the alleged persecution Yueng

suffered in China. Without describing what corroboration he

expected from such witnesses, other than generic “testimony as to the stated persecution experienced by both

respondents,” the IJ failed to explain why it was reasonable

to expect such corroboration. Id.
12 No. 05-3245

III.

We hold that the IJ’s credibility determination was

speculative and lacked substantial supporting evidence. The

purported inconsistencies upon which the IJ based

his ruling were, for the most part, so inconsequential that

the determination cannot be supported even though the

IJ identified at least one potentially serious inconsistency.

Nor was the IJ entitled to hold the petitioners responsible

for failing to produce corroborating evidence, when the

evidence the IJ expected to see was irrelevant. The petition

for review is

GRANTED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-25-06