11-3050-ag

Li v. Holder

BIA

Nelson, IJ

A089 908 408

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL

RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING

A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).

A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 8th day of May, two thousand twelve.

PRESENT:

JON O. NEWMAN,

JOSÉ A. CABRANES,

RAYMOND J. LOHIER, JR.,

Circuit Judges. 

_____________________________________

XIULIAN LI,

Petitioner, 

 v. 11-3050-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

 

FOR PETITIONER: Nathan Weill, New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney General;

William C. Peachey, Assistant

Director; Mona Maria Yousif, Attorney,

Office of Immigration Litigation,

United States Department of Justice,

Washington, D.C.
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UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

GRANTED, and the matter is REMANDED for further proceedings.

Petitioner Xiulian Li, a native and citizen of the

People’s Republic of China, seeks review of a June 30, 2011,

decision of the BIA affirming the May 21, 2009, decision of

Immigration Judge (“IJ”) Barbara A. Nelson denying her

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Xiulian

Li, No. A089 908 408 (B.I.A. June 30, 2011), aff’g No. A089

908 408 (Immig. Ct. N.Y. City May 21, 2009). We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

Under the circumstances of this case, we have reviewed

both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v.

DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable

standards of review are well established. See 8 U.S.C.

§ 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008). 

For asylum applications, like Li’s, governed by the REAL

ID Act, the agency may, considering the totality of the
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circumstances, base a credibility finding on an asylum

applicant’s demeanor, the plausibility of her account, and

inconsistencies in her or her witness’s statements, without

regard to whether they go “to the heart of the applicant’s

claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

at 163-64.

Li sought asylum on the ground that she had been

subjected to two forced abortions. This claim, if true, would

have entitled her to asylum. See 8 U.S.C. § 1101(a)(42)(B).

The IJ made an adverse credibility finding, which was upheld

by the BIA, on two grounds. First, the IJ concluded that Li’s

testimony evidenced lack of credibility. Second, the IJ was

concerned that Li had omitted from her initial asylum

application the fact that she had been discharged from

government employment for violating the family planning

policy. We consider each ground separately.

1. Li’s testimony.

The IJ’s adverse credibility finding was based

significantly on two instances in which the IJ thought that

Li’s responses went beyond the scope of the questions and

admonished her for doing so. The first instance occurred when

Li was asked the somewhat open-ended question concerning why,
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at age 22, she was considered too young to lawfully bear a

child. The following colloquy ensured:

Q. [by Li’s counsel] Why were you too young?

A. According to the local government, there was a

regulation that you must be 24 and half years old

and also a policy of late birth. And as long as you

meet that standard, then you have to get a birth

permit in order to have a child. At that time I

just did not know anything. When I went to register

the marriage, none of the departments over there

told me anything.

JUDGE TO MS. LI

Q. Ma'am, I think you're going way beyond the

question that was asked. Please answer only what

your attorney asks you.

A. Yes.

In fact, Li’s response endeavored to answer the question

and added only why she was unable to provide more information

to respond to the “why” question. No admonition was called

for. 

The second instance occurred when Li was questioned about

her second forced abortion. The following colloquy ensured:

Q. [by counsel] What did they do?

A. They forced me up -- they forced me into an

operating room. I kept screaming very loudly and I

said, please let me go, but no matter how I

struggled physically or screaming, it, it had no

use. Two nurses held me up to the operating table

by my shoulders so I could not move. And then the

doctor forcibly performed a D&C procedure on me. No

anesthetic was injected. I felt like -- that my --

someone had pulled out my intestine.
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JUDGE TO MS. LI

Q. All right, ma'am, again you're going beyond the

question that was asked. This isn't supposed to

be an open-ended narrative. Your attorney has

done lots of this kind of case and he knows

what questions to ask to get the information

that he needs from you. So, if you would be

patient and let him ask the question instead of

just trying to tell your story in one felled

[sic] swoop.

Li’s answer was entirely appropriate to the open-ended

question, “What did they do?” The IJ’s admonition was

unwarranted.

Had these admonitions not affected the IJ’s assessment of

Li’s credibility, we would not be overly concerned. However,

our concern increases when we see the following passage in the

IJ’s oral decision:

[T]he Court finds that there are some troubling

aspects regarding the respondent's demeanor. During

her testimony, partic ularly during direct

examination, the respondent would be asked a simple

question and would give an extremely long narrative.

In fact, it appeared to the Court that the respondent

was giving a speech. The speeches would go on way

beyond what the question asked for.

The two colloquies we have recounted are the only

instances in Li’s examination where the IJ indicated that a

response exceeded the scope of the question.

Our concern is further heightened by the BIA’s reasons for

affirming the IJ’s adverse credibility finding: “In making an
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adverse credibility determination, the Immigration Judge

found, inter alia, that the respondent appeared to have

rehearsed her testimony and was hesitant and unresponsive in

certain points in her testimony. The Immigration Judge's

finding is supported by the record (see, e.g., Tr. at 11-16,

18, 26, 29-31, 33, 35).”

We have examined each cited transcript reference and note

the following. Within the first reference (pages 11-16) there

is nothing on pages 11, 12, or 15 that supports the BIA’s

characterization. The only passage to which the BIA could be

referring on page 13 is Li’s response to the question as to

why she was considered too young to lawfully bear a child, a

response that, as we have pointed out, was not inappropriate.

The only passage to which the BIA could be referring on page

14 is Li’s response to how the second abortion was performed,

which was entirely appropriate. The only passage to which the

Board could have been referring on page 16 is the following

colloquy:

Q. Do you know why they [the Chinese authorities]

changed the form of contraception?

A. I don't understand the question.

Q. Well, you had been taken birth control pills

according to your application. Then you stopped

taking them, got pregnant and had your son. After

that, you were -- after that, you had an IUD. Do you

know why they changed the form of contraception that

you were using?
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A. At the time when I got married, I did not know

about the regulations that would prevent me to have

children and did not take any birth control measures,

so other --

Q. I'm not, I'm not talking about before you were on

contraception. My question is about why did they

change the form of contraception?

A. After I gave birth to this child, child, it was

the regulation that half of year after their birth

must wear an IUD.

Although Li initially said she did not understand the

question, that was not an inappropriate response to a question

that she was not competent to answer. Nevertheless, she

responded within the limits of her knowledge.

On pages 18 and 26, there is nothing that supports the

BIA’s characterization. With respect to pages 29-31, the only

passage that might arguably have concerned the IJ and

therefore the BIA was one response on page 31 in which Li said

she did not understand the question. On page 33, the

following colloquy apparently troubled the IJ:

Q. [by DHS counsel] Do you have any proof that you

attend the church here in the United States?

A. I go to church every Sunday, in the morning.

Q. No, but do --

JUDGE TO MS. LI

Q. Ma'am, that's not the question. The question is do

you have any evidence to show that you, in fact, do

that?

A. I don't have it because I haven't been baptized.

Although a simple “no” would have been the better response,

Li’s two answers would seem to merit little, if any,
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criticism. The last page of transcript cited by the BIA, page

35, contains the following colloquy:

JUDGE TO MS. LI

Q. When did you first attend church in the U.S.?

A. I even went last Sunday. When I came this morning

the person was in charge in our church prayed for me.

Q. All right, ma'am, perhaps you didn't understand

the question. When was the first time you attended

a church in the United States?

A. First time? December -- I went in December 2007.

Q. How long has your mother been a practicing

Christian?

A. My mother?

Q. Yes, your mother.

A. I -- I'm not sure when she joined the religion

because my work was very, very busy and I accompanied

her because she was in her 80s.

Q. Ma'am, just answer the question I asked. As far as

you know, when you were a child, did your mother

practice Christianity?

A. She hasn't practiced Christianity for not too

long. She hasn't practiced Christianity for too long.

The IJ’s first question was not answered until the second

response, but the IJ’s remaining questions were answered

directly, even though the IJ changed the question after

admonishing Li to “just answer the question I asked.” 

We understand the difficult task that IJs have in

determining the credibility of asylum applicants, at least

some of whom are undoubtedly giving false testimony supplied

to them by the smugglers who arranged for their unlawful

entry. We also recognize that the IJ has the opportunity to

observe the applicant and to assess her demeanor. See Lin v.

Gonzales, 446 F.3d 395 (2d Cir. 2006). At the same time, we
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have an obligation to make sure that the questioning of an

applicant is fair and that unwarranted criticisms of

legitimate responses do not create an unacceptable risk of a

flawed assessment of credibility. See Huang v. Gonzales, 453

F.3d 142, 148-50 (2d Cir. 2006). From the colloquies we have

recounted, we conclude that that risk is present in this case.

One further excerpt from the testimony also suggests that

the IJ might have permitted inappropriate questioning to color

her credibility assessment. The following colloquy concerned

Li’s account of her second forced abortion: 

Q. [By Li’s counsel] Can you describe it, please?

A. They did not inject me any anesthetic, the same as

the first time. It felt like someone pulled out my

intestine. Over there every, every cut I was made and

I felt like -- so painful that I felt like I was

dying.

JUDGE TO MS. LI

Q. I'm sorry, what cuts were made?

A. It, it felt like -- my feeling was like they were

making cuts, that's how I felt.

Q. Was -- did this abortion feel different than the

first one?

A. It was also D&C procedure, the same feeling as the

first time.

Q. Did they make any cuts or did it just feel like

they were making cuts?

A. The doctor -- the nurses were there and when they

were doing it, it felt like scraping and cutting.

Why a woman who had undergone a forced abortion without

anesthetic would be pressed to answer the question “Did they

make any cuts or did it just feel like they were making cuts?”

is not readily apparent.
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2. Omission of Li’s discharge from employment.

As the IJ and the BIA noted, Li’s initial asylum

application recited her two forced abortions but did not

mention that she was discharged from government employment for

violating the family planning policy. Li testified that she

understood that the forced abortions were evidence of

persecution, but that she did not think that being fired from

employment added anything to her claim. She also explained

that after her lawyer told her that the firing was relevant to

her claim, she amended her application to include the

employment discharge.

Although an omission can have a bearing on an applicant’s

credibility, see 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that

agency may base credibility determination on inconsistencies

between applicants statements, and “the consistency of such

statements with other evidence of record”), the IJ initially

commented on Li’s omission in a sympathetic manner:

The respondent mentioned nothing about this in

her written application for asylum, only that she was

dismissed from her employer. If this were the only

omission or inconsistency, the Court might find that

it had been inadvertent, and the respondent had not

offered it because she might not have considered it

the worst form of persecution. One could easily

understand that a respondent would find an abortion

to be a far more serious form of persecution than

loss of employment.

However, a loss of employment is hardly

something to be forgotten or easily dismissed from

memory, but there are other reasons that the Court
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has trouble with this serious omission. The

respondent's husband sent a letter to corroborate her

claim. He mentions absolutely nothing about her

losing her position in August of 2006, and, of

course, mentions nothing about her attempts to [be]

reinstated. Her neighbor also does not mention it,

which is troubling because the neighbor does seem to

know a great deal about the respondent, including her

pregnancies, her abortions, et cetera. Even more

disturbing is the fact that the respondent's coworker did not mention in his or her letter that she

was dismissed from their place of employment.

Given these factors, the Court finds that the

omission is more troubling on several levels,

including the fact that it appears to the Court that

perhaps the content of the letters was directed by

the respondent when she initially filed her

application for asylum. The Court also notes that in

another continuation sheet, which contains simply the

dates (places of employment for the respondent could

not be fit on the 1-589), it indicates that her

employment with that particular place ended in May of

2006. But when one considers all these factors

together, this is a serious omission, and the Court

finds that it is sufficient to find that her

testimony is not credible.

We are unable to follow the IJ’s logic. If it was

understandable that Li would regard the discharge as

insufficient to augment her claim based on two forced

abortions, it is difficult to understand why the same omission

becomes more significant when it is made by her husband or

others supporting her application.

In sum, we are left with sufficient doubt about the

fairness of the adverse credibility finding to warrant a

remand so that Li’s testimony may be assessed without the

troubling matters we have identified. Although we have no
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doubt that the IJ could conscientiously make a new assessment

based on the existing record, we think the appearance of

justice is better served by requiring a different IJ to

conduct a renewed hearing on remand. See Huang, 453 F.3d at

150.

For the foregoing reasons, the petition for review is

GRANTED, and the matter is REMANDED for further proceedings

consistent with this order.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk