F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A I J U N Z H I , P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 10-71591

Ag ency No. A099-890-509

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued October 16, 2012 Submitted September 16, 2013 Honolulu, Hawaii

F iled May

16, 2014

B efore: Stephen Reinhardt, Sidney R. Thomas, and Richard A. Paez , Circuit J udg es.

Opinion by J udg e PaezZ H I V

. H O L D E R

2

SUMMARY *

Im m igration

The panel g ranted a petition for review o f the B oard o f I mmig r a tio n Appeals’ denial of asy lum and withholding o f removal.

The p anel held that s ubstantial e vidence did not support the I J ’ s a dverse credibility determination based on a discrepancy in dates in the documentary evidence, g iven that other eviden c e in the record corroborated petitioner’s

ex p la nation that one o f the documents included an incorrect date due to a ty

pog raphical error.

The panel held that the I J erred by rely ing on petitioner’s short-lived marriag e to a United States citiz en to question his credibility because the I J failed to consider petitioner’s

ex p lana tion for the termination of his marriag e, never questioned petitioner about why he e ntered the United States

on a B -1 b usiness visa, rather than a K-1 f i a n cé v i s a, a

nd failed to g ive any consideration to petitioner’s testimony that his wife never filed a visa petition for him, which undermined the I J ’s speculation and conjec t u r e that petitioner married solely to remain in the country

.

The p anel h eld that the I J also f ailed to provide p etitioner with proper notice and a reasonable o pportunity to produce

c o r r oborating evidence, as required by Ren v. H older

, 64 8

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.Z H I V

. H O L D E R 3

F .3d 1079, 1 090-92 (9th Cir. 2011). The panel remanded for further proceeding s.

COUNSEL

J isheng L i (arg ued), Honolulu, Hawaii, for Petitioner.

Ethan B

. Kanter (arg

ued), Senior L i t i g ation Counsel; Tony W e st, Assistant A ttorney General; Richard M. Evans, Assistant Director; Andrew J acob Oliveira, T rial Attor n e y , Office of I mmig ration L itig ation, Civil Division, United Sta t e s D epartment of J ustice, W a shing ton, D.C., for Respondent.

OP INION

PAEZ , Circuit J udg e:

Petitioner A i J un Z hi, a Chinese citiz en, petitions for review of the denial of his a p p l ication for asy lum a nd withholdin g of removal. As w e e x plain below, one of the bases for the immig ration judg e’s (“I J ” ) adverse credibility determination is not supported b y substantial ev i dence a nd another must be set a side and remand e d as a result of leg al

error. The I J a lso failed to p rovide Z hi with proper notice a nd

a reasonable opportunity

to produce corroborating evidence,

as required by our opinion in R en v. Holder

, 6 4 8 F .3d 1079, 1090–92 (9th Cir. 2011). W e t h e refore g rant Z hi’s petition and remand for further proceeding s.Z H I V

. H O L D E R

4

I.

Z hi has primarily lived outside of China since 1998, first i n S aipan a

nd later in G uam. F rom 1992 to 2002, Zh i w a s married to a Chinese citiz en, w ith w hom he has two daug hters. 1 On Aug ust 17, 2005, Z hi entered Guam on a B

- 1

non

- i m m i g rant visa, and married a United States citiz en, Shirley Munos Santos, six day s later. The couple divorced on December 21, 2006. Santos d id n ot file a visa petition on Z h i’s behalf during

their marriag e.

I n 2004, Z hi opened a bookstore i n China, which he intended to be a sour c e of income when he returned. His brother-in-law, Hong Z hang

, manag ed the store. Z hi testified that in April 2005, Z hang c alled Z hi to ask if Z hang ’s friend,

a F a lun Gong practitioner, c o u l d keep books about F a lun Gong in the bookstore. Z h i ag reed. Z hi t e s t ified that on F ebruary 13, 2006, the local police found out about the books and closed the bookstore. The police detained Z hang for two day s, but then released him after learning that Z hi o wned the bookstore.

Z hi received a phone call from his fa t h e r the day the police closed the book s t o re

. Z h i’s father told him never to

come back to China or contact either of his parents ag ain, a nd then promptly hung up. The p oli c e searched Z hi’s parents’ home a nd informed them that if they did not report Z hi upon hi s return to China, Z hi’s parents would bear responsibility for his criminal actions. Z hi a lso received a call from a friend who told Z hi the police had issued a warrant for Z h i’s arrest and had charg ed him as a F a lun Gong cultist.

1 On e o f Z h i’ s d au g h ters is a U.S. citizen w h o liv es w ith

h im in Gu am

.Z H I V

. H O L D E R 5

Z hi proffered fou r l e tters f r om family and friends

ex p laining w h a t had happened in more detail and warning him not to r eturn to China. Z hi’s friend, J ian Ming

, mailed Z h i’s mother’s letters to avoid detection by u ndercover Chinese authorities w ho Z hi ’s mother b e lieved were monitoring her mail. Ming ex plained in his own letter that he

was afraid to help Z hi and would not do so ag ain. H e asked Z h i to avoid further contact with him.

Z hi’s mother r e ported in her two letters that the police closed h is bookstore on F ebrua r y 13, 2006. Z hi’s sister, however, wrote that p olice closed the bookstore on F ebruary 13, 2 005. W hen asked about the d iscrepancy at his asy lum hearing

, Z h i testified t hat his sister told him during a telephone conversation that she wrote the y ear down wrong

.

I n September 2007, Z h i received a n o t i ce to appear for removal proceeding s. He conceded removability a nd requested relief in the f

orm of asy lum and withholding o f removal on the basis o f imputed politi ca l opinion. T he I J denied Z hi’s application on Aug u st 27, 2 0 0 8

. I n her oral decision, she ex plained that Z hi did not p r e s e n t credible evidence establishing a w ell-founded fear o f future persecution. A l t houg h she relied primarily on the inconsistency concerning the y ear Z hi’s bookstore closed, she

ex p lained that the discrepancy in d ates was p a rticularly sig nificant in lig ht of the timing of Z hi’s “very short-liv e d marriag e t o a U.S. citiz en,” which she interpreted as an “attempt[ ] to remain in the United States.” The I J also based her decision o n Z hi’s f

a ilure to submit reasonably a v ai l a ble corroborating

evidence.Z H I V

. H O L D E R

6

The B oard of I mmig ration Appeals (“B I A ”) affirmed the I J ’s decision on April 2 3, 2010. Z h i timely appealed. W e have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).

II.

W h ere, as here, the B I A adopts the I J ’s d e cision and also contributes its own reasoning to the a naly sis, w e review both decisions. 2 Nuru v. Gonzales

, 4 04 F .3d 1207, 1215 (9th Cir. 2005).

W e review factual f

inding s, including adverse credibility decisions, und e r t

h e d eferential substantial evidence standard. Mendoza-Pabl o v

. Holder

, 667 F .3d 1308, 1312 (9th Cir. 2012). W e may reverse f actual determinations only when “any reasonable a djudicator w ould be compelled to conclude
to the contrary

” based on the evidence in the record. 8 U .S.C. § 1252(b)(4)(B ). W e review de novo q u e s t i o ns of law a nd mix ed questions of law a nd fact. Mendoza-Pablo

, 667 F .3d at 1312.

A.

An asy lum applicant bears the burden of establishing his claim throug h credibl e e v i d en ce. S ee 8 U .S.C. § 1158(b)(1)(B )(i), (iii). F o r applications filed after May 11, 2005, such as Z hi’s, the c redibility standards se t forth in the REAL I D Ac t a p p l y

. See Pub. L

. 109-13, Div. B
, Title I
, § 101(h)(2), 119 Stat. 231 (M a y 1 1, 2 005). Althoug h an I J
may base her a dverse credibility determination on “any

. . .

2 T h e B IA ’ s th ree- p ag e o rd er stated

, in part, “ w e af f irm th e Im

m ig ratio n J u d g e’ s leg al co n clu sio n s f or t h e reaso n s s tated b y th e Im m ig ratio n J u dg e in th e A u g u st 2 0 0 8 d ecisio n (I.J . at 4

– 11 ).”Z H I V

. H O L D E R 7

relevant factor,” she must d o so in lig h t 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). I n other words, the I J “cannot selectively e x amine e v idence in determi n i ng credibility

, but rather must present a reasoned analy sis of the evidence as a whole.” Tamang v. H o l d er , 598 F .3d 1083, 1093 ( 9th Cir. 2010); see also Bassene v. Holder

, 7 3 7 F. 3 d 530, 538 (9th Cir. 2013) ( s t ating that an I J must view “purported inconsistencies in lig h t of all the e vidence presented in the case” (inter nal quotations and citations omitted)). The I J cannot “cherry pick solely facts favoring an adve rse c redibility determination while ig noring facts that undermine that result,” Shrestha

, 590 F .3d at 1040, and must

c o nsider the petitioner’s ex planation for any inconsisten c y that is “ cited as a factor supporting an adverse credibility determination,” id. at 1044. Under the RE AL I D Act, an I J
may base c redibility d e terminations o n fa c t o r s that do not “g o[ ] to the h eart of the a p plicant’s c l a i m.” 8 U .S.C. § 1158(b)(1)(B )(iii); R en , 648 F .3d at 1084 (recog niz ing abrog ation of the Ninth Circuit’s “heart of the c laim” test). However, an I J cannot base an adverse credibility determination solely on an “ u tterly trivial inconsistency ” that “un der the total circumstances [ has] no bearing o n a petitioner’s veracity .” Shrestha , 590 F .3d at 1043–44.

The principal basis for the I J ’s adverse credibility finding

was that Z hi’s sister identifie d t h e d ate of the bookstore closure as F ebruary 13, 2005, while Z hi a nd h is mother dated the closure o n F ebruary 13, 2006. The I J rejected Z hi’s

ex p lanation that h is sister merely “wrote d o w n the y e ar wrong ” in her lette r. The I J stated that, while she may oth erwise have considered the sister’s date a ty pog raphical
error, she refused to d o so here b ecause Z hi only offered his

ex p lanation a fter he was questioned about it o n cross-Z H I V

. H O L D E R

8

ex a mination. The I J c h a r acteriz ed the inconsistency as a “major discr ep a n cy ” because Z hi r elied heavily upon the letters to e stablish his f

ear o f persecution, and because it was Zhi’s sister’s husband who ran the bookstore. T h e BI A
ag reed, ex p laining that Z hi’s testimony about the closure date

was central to his evidence establishing “the circumstances for w h ich the Chinese g overnment alleg edly seeks to harm him.”

The B I A and I J ig nored critical e vidence that undermines the adverse credibility determination. I n h er or al decision, the I J rejected Z h i ’ s a r g ument that he had suffered past persecution because o f e x treme economic deprivation. I n doing so, the I J described the bu s iness receipts that Z hi presented a s “ credible evidence.” These receipts incl u d e a business license renewal dated December 26, 2005, a nd twelve additional g overnment-stamped receipts da t ed between F ebruary 13, 2005, and F ebruary 13, 2006. T he lastdated receipt was from J a nuary 3 1, 2 006

. T h e se receipts support Z hi’s ex planation that h is sister made a mistake when she dated her letter. They a lso b olster Z hi’ s t e s t imony identify ing the closure date as F ebruary 13, 2006.

I n lig ht o f this sig nificant r ecord evidenc e , we conclude that substantial evidence d o es not support the B I A ’s determination that the conflict in d ates resulted in a leg ally sig nificant discrepancy in the evidence. I n l i gh t o f 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 any thing but an “utterly t r ivial discrepancy

” that “ under the total circumstances [ h as] no bearing on [ Z hi’s] ver acity ,” see Shrestha

, 590 F .3d at 1043–44. T h e evidence overwhelming ly supports Z hi’s

ex p lana t i on that his sister, in either a slip of p e n or a slip o fZ H I V

. H O L D E R 9

memory , misstated the y ear o f the closure. Z hi’s testimony

, his mother’s two letters, the fact that his sister stated the same date but a different y ear, the business license renewal, a nd the twelve other receipts d a t e d between F e bruary 13, 2005 a nd F ebruary 13, 2006, all support Z hi’s dating of the bookst o re closure and his ex planation that h is sister made a m i stake when she dated h e r letter. W e therefore conclude that substantial evidence does not support the ag ency ’ s finding that the discrepancy

in dates undermines Z hi’s credibility

.

B.

Althoug h the I J relied principally upon the discrepancy in dates to sup p o r t her decision, she also indicated that Z hi’s “very short-lived marriag e” to Santos after arriving in Guam

was suspect. The I J concluded that Z h i’s marriag e to Santos

was an “attempt[ ] to remain in the United States,” and f ound it particularly sig nificant that Z hi had entered Guam on a B

- 1 non-immig rant visa rather than a K-1 visa. 3

The I J made three leg a l errors in her treatme n t o f Zh i’s marriag e to Santos. F irst, the I J f ailed to consider Z hi’s

3 T h e ap p licab le f

ed eral reg u l atio n s ex p l a i n t h a t a B

- 1 v i sa i s f or b u sin ess p u rp o ses an d d o es n o t lead to st a t u s as a law f u l p erm an en t resid en t. 8 C.F.R. § 2 1 4 .2 (b )(1 ) (“ A n y B

- 1 v isito r f o r bu sin ess

. . . m ay b e ad m itted f

o r n o t m o re th an o n e y ear an d m ay b e g ran ted ex t en sio n s of
tem p o rary stay in in crem en ts o f n o t m o re th an six m o n th s.”). A K- 1 v isa,

w h ich an im

m i g ran t w

h o p lan s to m arry a U.S. citizen p ro m p tly af ter arriv al m ay acq u ire, lead s to statu s as a law f u l p e r m an en t resid en t. 8 C.F.R. § 2 1 4 .2 (k )(6 )(ii) (“ Up o n co n tractin g a v alid m arriag e to th e p etitio n er w ith in 9 0 d ay s of h is o r h er a d m issio n as a n o n im m ig ran t p u rsu an t to a v alid K- 1 v isa issu ed o n o r af ter No v em

b er 1 0
, 19 8 6
, th e K

1 b en ef iciary an d h i s o r h er m in o r ch ild ren m ay ap p l y f o r ad j u stm en t of
statu s to law f

u l p erm an en t resid en t.”).Z H I V

. H O L D E R

10

ex p lanation for why his marriag e e nded after just six teen months. 4 An I J must c onsider and address “[ a] ll plausible a nd reasonable e x planatio n s f

o r a n y inconsistencies” that form the basis o f an adverse credibility determination. Chen v. I.N.S.
, 266 F .3d 1094, 1100 (9th Cir. 2001), judgment v acated o n

o t h e r grounds

, sub nom. I.N.S. v. Y i Quan Chen

, 537 U.S. 1016 ( 2002); see also Osorio v. I.N.S.
, 99 F .3d 9 2 8, 933 (9th Cir. 1 996) (ex plaining that an I J must “address in a reasoned

manner the e x planations that [ a n a ppl i cant] o ffers for

. . . perceived inconsistencies”). I nsofar as the I J found the “very short-lived” term of Z hi’s marriag e to b e probative of Z hi’s

mo t i v e s for marriag e and h is o verall credibility

, it was error

4 T h e IJ ’ s e x ch an g e w ith Z h i ab o u t h is m arriag e w as lim ited t o th e f o llo w in g :

Q: Did y o u

r seco n d w if

e S hi r l ey , t

h e U.S. citizen

, f

i le

a v isa p etitio n

b ef o re y o u d iv orced ?

A : No , sh e d id n ’ t.

Q: Did y o u s tate th at y o u m arried h er o n A u g u st 2 3
, 2 0 0 5 ?

A : Yes.

Q: A n d d id y o u state th at th e d iv o rce w as Decem b er 2 1
, 2 0 0 5 ?

A : No
, t h a t w a s t h e y ear 2 0 0 6
, Decem b er 2 1 st, y ear 2 0 0 6

.
Q: W h y d id th e m arriag e f

ail in su ch a sh o rt tim e?

A : We j u st w ere h o ld in g d if f eren t o p in io n s a n d th at

cau ses (sic) th e d iv o rce.Z H I V

. H O L D E R 11

t o d r a w an adverse inference without first c onsidering a n d addressing Z hi’s ex planation.

Second, althoug h there are multiple possible reasons why Z h i mig h t have e ntered Guam o n a B-1 non-immig rant visa i nstead of a K-1visa, the I J never questioned Z hi on the
matter. The I J could not properly b ase her adverse credibility determination on Z hi’s entry visa without first soliciting his

ex p lanati o n for why he entered on a B -1 visa. See SotoOlarte v. Holder

, 555 F .3d 1089, 1092 (9th Cir. 2 009) (h o l d i n g that the I J cannot base an adverse credibility determi nation on a discrepancy without first asking the applicant about it a

nd g iving him a

n opportunity to ex p lain); Ming Shi Xue v. Bd. of Immigratio n Appeals

, 439 F .3d 111, 121–22 (2d Cir. 2 006) (ex plaining that, where the I J chooses
to r ely on a basis for a

n adverse credibility determination that is not “plainly obvious or dramatic,” the I J must identify the issue and provide the applicant with an opportunity t o offer

an ex planation). Here, the I J eng ag ed in s p e c u lation about the meaning o f Z hi’s entry visa instead o f probing into the
matter to “ develop[ ] a complete and accurate r ecord on which
to decide [Z hi’s] asy lum claims,” as was h e r a djudicatory oblig ation. See Ming Shi Xue
, 439 F .3d at 1 18–19 (citing 8 U.S.C. § 1 229a(b) ( 1 ) )

. I t is ax iomatic that “[ s] peculation and conjecture cannot f

o rm the basis of a

n adverse credibility finding

, whi c h m ust instead b e based on substantial evidence.” Shah v. I.N.S.
, 220 F .3d 1062, 107 1 ( 9 t h C ir. 2000); see also Chawla v

. Holder

, 599 F .3d 998, 1004 (9th Cir. 2010) (“[ S] peculation cannot be used to sup p o rt [an] adverse credibility finding .”); Lopez-Reyes v. I.N.S.
, 79 F .3d 908, 912 (9th Cir. 1996) (ex plaining that an I J m u s t offer a specific and cog ent reason for his adverse credibility determination and that “c onjecture is not a substitute for substantial evidence”). I nsofar a s t h e I J r elied u pon Z hi’sZ H I V

. H O L D E R

12

entry visa to conclude that Z hi married solely to remain in the country , she impermissibly b ased her c onclusions on “speculation and co n

j e c ture,” instead of seeking an

ex p lanation that mig ht have clarified the matter.

L a s t , a n d m o s t important, th e I J d i d n o t gi v e a n y consideration to Z hi’s testimony that Santos never filed a visa petition for him. This proof-in-the-pudding fact undermines the I J ’s a ssumption that Z hi married Santos to st a y i n t he United States. As wi t h the b usiness receipts, the I J v iolated her duty to consider and address “relevant evidence that tends
to contravene a conclusion that a gi v en factor undermines credibility .” See Shrestha , 590 F .3d at 1044.

The I J committed several errors in her treatment of Z hi’s marriag e to Santos. On remand, the B I A and I J must consider Z hi’s ex planation for why his marriag e e nded a fter six teen months, provide Z hi with an oppo r t u nity to e x plain his visa decision, and take into account the probative fact that Santos did not file a visa petition.

C.

W e nex t address the third and final basis for the decision below: Z hi’s f

ailure to submit corroborative evidence. Under the REAL I D Act, “ [w] h e re the trier o f fact determines that the applicant should provid e evidence that corroborates otherwise credible testimony

, such evi d e n ce must be provided unle s s the applicant does not have the evidence and cannot reasonably obtain the evidence.” 8 U

. S

. C

. § 1158(b)(1)(B )(ii). The Real I D Act thus allo we d the I J to demand that Z hi provide co r r oborative evidence to meet his burden of proof. The B I A affirmed the I J ’s ruling that Z hi “has n ot submitted reasonably av a ilable corroborativeZ H I V

. H O L D E R 13

e v i d en c e to substantiate h is claim of an objective fear o f persecution.” Specifically

, the I J found it persuasive that Z hi d i d not provide letters or information from the F alun G o n g practitioner who used Zhi’s bookstore, other F alun Gong
pra c titioners who purchased books there, or F alun Gong officers living in Guam or Saipan.

Zh i arg ues that h e was “never put on notice” t h a t h e needed to produce the corroborative evidence iden t ified b y the I J in her oral decision and was n ot g iven an opportunity
t o ex plain his failure to do so. 5 I n R e n , we held that the I J
must provide an o therwise credible applicant with “notice a nd

an opportunity to either produce the evidence or ex plain why it is unavailable.” 6 6 4 8 F .3d at 1090–92 & n

. 1 3

. T he court based its reasoning on a plain reading of the statute’s “futureoriented” tex t. Id. at 1 091. I n particular, we determined that
t h e following three clauses d ictate that the I J must p rov i d e

5 T h e g o v ern m en t arg u es th at w e do n o t h av e j u risd ictio n to h ear t h i s arg u m en t b ecau se Z h i d i d n o t raise th e arg u m en t b ef o re th e B IA

. A lth o u g h Z h i d id n o t ex p ressly raise th e i ssu e o f n o tice in h is b rief t o th e B IA
, h e did arg u e to th e B IA th at “ th e IJ ’ s ad v er s e c r e d ib ility f in d in g

m u st b e set asid e” an d t

h at h i s fe a r o f retu rn in g to Ch in a w as “ also

co rro b o rated b y

letters f ro m h is sister an d m o th er.” W ith th is arg u m en t, Z h i ch allen g ed th e IJ ’ s o v erall cred ib ility d eterm in atio n an d d en i al o f h is claim s f o r asy lu m an d w ith h o ld i n g o f rem o v al. T h e “ n o tice” req u irem en t is a su b- part o f th at o v erall d eterm in atio n , an d w e th eref o re h av e j u risd ictio n

o v er th is issu e. S

ee Ren , 6 4 8 F.3 d at 1 0 84

.

6 Oth er circu its th at h av e ad d ressed w h eth er an IJ m

u s t p ro v id e n otice b ef o re req u irin g co rro bo ratio n h av e s p lit o n th e issu e. In Ren
, w e alig n ed

w ith th e T h ird Circu it’ s d ecisio n s in C h u kwu v. Atto rn ey G en

. of U.S

. , 4 8 4 F.3 d 1 85
, 1 9 2 (3 d Cir. 2 0 0 7 ) an d T o u r e v

. Atto rn ey G en

. of U.S

. , 4 4 3 F.3 d 3 1 0, 3 24 (3 d Cir. 2 0 0 6 ). T h e S eco n d an d Sev en th Circu its h av e reach ed th e o p po site co n clu s io n

. See Liu v. Ho ld er , 5 7 5 F.3 d 19 3
, 1 98 (2 d Cir. 2 0 0 9 ); Ra

p hea l v. Mu ka s ey , 5 3 3 F.3 d 5 2 1, 5 3 0 (7 th Cir. 2 0 0 8 ).Z H I V

. H O L D E R

14

notice: F irst, the r equirement that an applicant “ should provide evidence,” not that he “ s h o u ld have provided evidence”; second, the phrasing that eviden c e “m ust be provided,” rather than “must have been p rovided”; and third, the final clause concerning an applicant w ho “does not have” and “cannot reasonably attain” corroborating evidence. Id

. at 1091–92. B ecause “the g rammatical structure of the controlling clause makes the provision’s meaning absolutely clear,” id. at 1091, we g ave effect to the “unambig uously

ex p ressed intent of Cong ress” that the I J must p rovide notice and an opportun i t y t o the applicant of the corroborative evidence necessary to c a r r y the applicant’s burden of proof,

see Chevron, U.S.A., Inc. v. Natural R es. Def. Council, Inc.
, 467 U.S. 837, 843 (1984). F u rthe r , w e ex plained that the

canon of constitutiona l a v oidance favors the notice requirement because the F ifth Amendment r ig ht to a “full a nd fair hearing ” provides the appli c a n t with “a reasonable opportunity to present e vidence on his behalf.” Ren
, 648 F .3d at 1092 (internal quotations and citations omitted).

Apply ing Ren h ere, we hold that the I J erred because she did not provide notice to Z hi that he was required to present the corroborative evidence she r eferred to in her decision. Nor did the I J g ive Z hi an opportu n ity to e x plain why such evidence mig ht be unavailable.

This case illustrates well the importance of Ren ’s holding

. The record sug g ests that Z hi’s sources put themselves at risk of persecution to deliver the letters he presented to the I J

. His mother ex plained that g overnment officials threat e n ed her and are monitoring

her outg oing mail. Z hi’s f ather told him

never to contact his parents ag ain. A nd, M ing

, Z hi’s friend

w h o m a i led his mother’s letters in secrecy to avoid
g overnment interception, is so concerned about beingZ H I V

. H O L D E R 15

persecuted himself that h e told Z hi t h a t h e could no long er provide him with assistance. I f the Chinese g overnment has placed these individuals surrou n ding Z hi under a close ey e , it s u rely follows that the a ctual practitioner of F alun Gong who stored materials in the bookstore would face serious risk if he provided a written statement to Z hi that amounted to an admission of g uilt in China. F u rther, even if Z hi were able to obtain such a statement, the F alun Gong practitioner may not be able to send it “in the same manner as the letters from his family and friends,” a s the B I A presum e d wa s possible, because Z hi’s parents and Ming have asked Z hi not to contact them a g ain. I n sum, it w ould be a trag ic irony if a n applicant for asy lum seeking shelter f rom g overnment persecution was required t o p u t others at imminent risk of the same g overnment persecution to e s t ab lish the viability of his application. Cf. Zhou v. Gonzales

, 437 F

. 3 d 860, 866 (9th Cir. 2 006) (holding that it was impermissible f o r the I J to g ive d iminished weig ht to warrants because they were fax ed

w h en the a

pplicant’s f

amily w ould have faced criminal prosecution for sending

the orig inals).

To be clear, Z hi does not a rg ue o n a p peal that the requested corroborative evidence is u n available, a nd we do
not so hold. I ndeed, there may be way s for Z hi to access the informat i o n t h e I J requests. 7 W e r ecount these facts only to underline the difficulty of Z hi’s situation and the purpose that notice and opportunity wi ll serve. The REAL I D A ct requires, as we recog n iz ed in Ren
, that the I J provide Z hi with

an opportunity to navig ate the r isks a nd log istical c omplex ity

7 Fo r i n stan ce, Z h i’ s sister m ailed h er l etter d irectly to Z h i an d d id n o t

ex p ress an y f

ear th at sh e f

aced g o v ern m en t p ersecu tio n f o r co rresp o n d in g

w ith h im . Sh e m ay

b e ab le to assist in

sen din g ad d itio n al in f

o rm atio n to Z h i w ith o u t f

acin g serio u s risk

o f p ersecu tio n

.Z H I V

. H O L D E R

16

in obtaining the r equested corroborative evidence or, in the alternative, an opportunity to ex plain why it is not reasonably available.

III.

W e hold that the BI A a n d I J erred in a rriving at their adverse credibility determi n ation. They must r e visit the adverse credibility determination in lig ht of this o pinion. See id. I f additional corroborative evidence is deemed necessary for Z hi to carry his burden of proo f, then the notice requirements in R en apply

. F or the reasons stated above, we g rant Z hi’s p et i tion and remand f or further proceeding s consistent with this opinion.

P ETITION G RANTED and REMANDED.