FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHUN HE LI, 

No. 02-72689 Petitioner

Agency No.

v.  A70-011-792

JOHN ASHCROFT, Attorney General, ORDER Respondent. 

Filed February 2, 2005

Before: Jerome Farris, John T. Noonan, and

Johnnie B. Rawlinson, Circuit Judges.

Order;

Dissent by Judge Hawkins

ORDER

A judge sua sponte called for rehearing en banc. The matter

failed to receive a majority of the votes of the nonrecused

active judges in favor of en banc consideration. Fed. R. App.

P. 35(b). Accordingly, the sua sponte call for rehearing en

banc is rejected. 

The mandate shall issue in due course.

1311
HAWKINS, Circuit Judge, with whom Judges PREGERSON,

THOMAS and PAEZ join, Dissenting from the Order Denying En Banc Review: 

It is unfortunate that we did not grant the Petition for

Rehearing En Banc here. As Judge Noonan’s dissent from the

panel opinion makes clear,1 this was a strong case on the merits of Li’s asylum claim. Li violated China’s one-child policy,

a form of persecution that Congress recognizes as a basis for

asylum, by fathering three children. These undisputed core

facts establish a claim for asylum that should have been

impervious to inconsistencies not at its heart. See Singh v.

Ashcroft, 301 F.3d 1109, 1111 (9th Cir. 2002). 

Li has every reason to fear officially-sanctioned persecution if returned to China. Following the birth of his second

and third children, Li was fined substantially and his wife was

sterilized. But the merits of this compelling case were never

reached because Li was judged to lack credibility. Judge Noonan cogently describes the thin veneer underlying that determination: 

[B]ased on misinterpreting Li’s candid testimony

about hiding in China, exaggerating the significance

of his memory of the fines; chastising him for not

embroidering what he suffered as officials enforced

the official population policy, guessing that his

wife’s sterilization was voluntary, and marveling at

his non-assertions of a basis for asylum at times

when it could not have been legally effective, the IJ

found Li incredible on the issue of past persecution.

378 F.3d at 967 (Noonan, J. dissenting). 

1Li v. Ashcroft, 378 F.3d 959, 964-68 (9th Cir. 2004) (Noonan, J., dissenting). 

1312 LI v. ASHCROFT
That the IJ got it wrong factually and the panel accepted the

result would be far less troubling and less worthy of en banc

consideration were it not plain that, along the way, two of our

cardinal principles relating to credibility determinations were

simply ignored. The first of these is that an adverse credibility

determination cannot stand if based on speculation or conjecture. See Shah v. INS, 220 F.3d 1062, 1069, 1071 (9th Cir.

2000); Kaur v. Ashcroft, 379 F.3d 876, 887-88 (9th Cir.

2004); Ge v. Ashcroft, 367 F.3d 1121, 1125 (9th Cir. 2004);

Guo v. Ashcroft, 361 F.3d 1194, 1201-02 (9th Cir. 2004);

Arulampalam v. Ashcroft, 353 F.3d 679, 687-88 (9th Cir.

2003); Wang v. INS, 352 F.3d 1250, 1255-56 (9th Cir. 2003);

Paramasamy v. Ashcroft, 295 F.3d 1047, 1052 (9th Cir.

2002); Singh v. INS, 292 F.3d 1017, 1024 (9th Cir. 2002); Gui

v. INS, 280 F.3d 1217, 1226-27 (9th Cir. 2002); Salaam v.

INS, 229 F.3d 1234, 1238 (9th Cir. 2000) (per curiam); Bandari v. INS, 227 F.3d 1160, 1167-68 (9th Cir. 2000); Chouchkov v. INS, 220 F.3d 1077, 1083 (9th Cir. 2000); and LopezReyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996). Here, the IJ

repeatedly engaged in rank speculation and conjecture, one

flagrant example of which is her declaration that Li’s wife

might have voluntarily submitted to sterilization. 

The second principle is this: where an asylum seeker offers

an explanation for a perceived inconsistency, the IJ must consider and address that explanation; failing to do so vitiates the

inconsistency as a basis to determine adverse credibility. See

Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004); Guo v.

Ashcroft, 361 F.3d 1194, 1200-01 (9th Cir. 2004); Hakeem v.

INS, 273 F.3d 812, 816 (9th Cir. 2001); Chen v. INS, 266 F.3d

1094, 1100 (9th Cir. 2001), overruled on other grounds by

INS v. Ventura, 537 U.S. 12 (2002) (per curiam); and Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998). Here, the

panel majority relied heavily upon an inconsistency between

Li’s hearing testimony and his airport entry interview.2 But

2We have heretofore been reluctant to accord weight to statements that

immigrants make to authorities in airport interviews. See Singh v. INS, 292

F.3d. 1017, 1021-22 (9th Cir. 2002). 

LI v. ASHCROFT 1313
nowhere in the record did the IJ comment on Li’s explanation

(that he feared that a truthful response in the airport interview

would result in his immediate return to China). 

We should have taken this case en banc and remanded Li’s

petition for the BIA to determine the merits of Li’s asylum

claim shorn of the inappropriate credibility determination. 

1314 LI v. ASHCROFT



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