FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AIJUN ZHI,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 10-71591

Agency No.

A099-890-509

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued October 16, 2012

Submitted September 16, 2013

Honolulu, Hawaii

Filed May 16, 2014

Before: Stephen Reinhardt, Sidney R. Thomas,

and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez
2 ZHI V. HOLDER

SUMMARY*

Immigration

The panel granted a petition for review of the Board of

Immigration Appeals’ denial of asylum and withholding of

removal. 

The panel held that substantial evidence did not support

the IJ’s adverse credibility determination based on a

discrepancy in dates in the documentary evidence, given that

other evidence in the record corroborated petitioner’s

explanation that one of the documents included an incorrect

date due to a typographical error.

The panel held that the IJ erred by relying on petitioner’s

short-lived marriage to a United States citizen to question his

credibility because the IJ failed to consider petitioner’s

explanation for the termination of his marriage, never

questioned petitioner about why he entered the United States

on a B-1 business visa, rather than a K-1 fiancé visa, and

failed to give any consideration to petitioner’s testimony that

his wife never filed a visa petition for him, which undermined

the IJ’s speculation and conjecture that petitioner married

solely to remain in the country. 

The panel held that the IJ also failed to provide petitioner

with proper notice and a reasonable opportunity to produce

corroborating evidence, as required by Ren v. Holder, 648

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ZHI V. HOLDER 3

F.3d 1079, 1090-92 (9th Cir. 2011). The panel remanded for

further proceedings.

COUNSEL

Jisheng Li (argued), Honolulu, Hawaii, for Petitioner.

Ethan B. Kanter (argued), Senior Litigation Counsel; Tony

West, Assistant Attorney General; Richard M. Evans,

Assistant Director; Andrew Jacob Oliveira, Trial Attorney,

Office of Immigration Litigation, Civil Division, United

States Department of Justice, Washington, D.C., for

Respondent.

OPINION

PAEZ, Circuit Judge:

Petitioner Ai Jun Zhi, a Chinese citizen, petitions for

review of the denial of his application for asylum and

withholding of removal. As we explain below, one of the

bases for the immigration judge’s (“IJ”) adverse credibility

determination is not supported by substantial evidence and

another must be set aside and remanded as a result of legal

error. The IJ also failed to provide Zhi with proper notice and

a reasonable opportunity to produce corroborating evidence,

as required by our opinion in Ren v. Holder, 648 F.3d 1079,

1090–92 (9th Cir. 2011). We therefore grant Zhi’s petition

and remand for further proceedings.
4 ZHI V. HOLDER

I.

Zhi has primarily lived outside of China since 1998, first

in Saipan and later in Guam. From 1992 to 2002, Zhi was

married to a Chinese citizen, with whom he has two

daughters.1 On August 17, 2005, Zhi entered Guam on a B-1

non-immigrant visa, and married a United States citizen,

Shirley Munos Santos, six days later. The couple divorced on

December 21, 2006. Santos did not file a visa petition on

Zhi’s behalf during their marriage.

In 2004, Zhi opened a bookstore in China, which he

intended to be a source of income when he returned. His

brother-in-law, Hong Zhang, managed the store. Zhi testified

that in April 2005, Zhang called Zhi to ask if Zhang’s friend,

a Falun Gong practitioner, could keep books about Falun

Gong in the bookstore. Zhi agreed. Zhi testified that on

February 13, 2006, the local police found out about the books

and closed the bookstore. The police detained Zhang for two

days, but then released him after learning that Zhi owned the

bookstore.

Zhi received a phone call from his father the day the

police closed the bookstore. Zhi’s father told him never to

come back to China or contact either of his parents again, and

then promptly hung up. The police searched Zhi’s parents’

home and informed them that if they did not report Zhi upon

his return to China, Zhi’s parents would bear responsibility

for his criminal actions. Zhi also received a call from a friend

who told Zhi the police had issued a warrant for Zhi’s arrest

and had charged him as a Falun Gong cultist.

 

1

 One of Zhi’s daughters is a U.S. citizen who lives with him in Guam.
ZHI V. HOLDER 5

Zhi proffered four letters from family and friends

explaining what had happened in more detail and warning

him not to return to China. Zhi’s friend, Jian Ming, mailed

Zhi’s mother’s letters to avoid detection by undercover

Chinese authorities who Zhi’s mother believed were

monitoring her mail. Ming explained in his own letter that he

was afraid to help Zhi and would not do so again. He asked

Zhi to avoid further contact with him.

Zhi’s mother reported in her two letters that the police

closed his bookstore on February 13, 2006. Zhi’s sister,

however, wrote that police closed the bookstore on February

13, 2005. When asked about the discrepancy at his asylum

hearing, Zhi testified that his sister told him during a

telephone conversation that she wrote the year down wrong.

In September 2007, Zhi received a notice to appear for

removal proceedings. He conceded removability and

requested relief in the form of asylum and withholding of

removal on the basis of imputed political opinion. The IJ

denied Zhi’s application on August 27, 2008. In her oral

decision, she explained that Zhi did not present credible

evidence establishing a well-founded fear of future

persecution. Although she relied primarily on the

inconsistencyconcerning the year Zhi’s bookstore closed, she

explained that the discrepancy in dates was particularly

significant in light of the timing of Zhi’s “very short-lived

marriage to a U.S. citizen,” which she interpreted as an

“attempt[] to remain in the United States.” The IJ also based

her decision on Zhi’s failure to submit reasonably available

corroborating evidence.
6 ZHI V. HOLDER

The Board of Immigration Appeals (“BIA”) affirmed the

IJ’s decision on April 23, 2010. Zhi timely appealed. We

have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).

II.

Where, as here, the BIA adopts the IJ’s decision and also

contributes its own reasoning to the analysis, we review both

decisions.2 Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.

2005).

We review factual findings, including adverse credibility

decisions, underthe deferential substantial evidence standard.

Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312 (9th Cir.

2012). We may reverse factual determinations only when

“any reasonable adjudicator would be compelled to conclude

to the contrary” based on the evidence in the record. 8 U.S.C.

§ 1252(b)(4)(B). We review de novo questions of law and

mixed questions of law and fact. Mendoza-Pablo, 667 F.3d

at 1312.

A.

An asylum applicant bears the burden of establishing his

claim through credible evidence. See 8 U.S.C.

§ 1158(b)(1)(B)(i), (iii). For applications filed after May 11,

2005, such as Zhi’s, the credibility standards set forth in the

REAL ID Act apply. See Pub. L. 109-13, Div. B, Title I,

§ 101(h)(2), 119 Stat. 231 (May 11, 2005). Although an IJ

may base her adverse credibility determination on “any . . .

2 The BIA’s three-page order stated, in part, “we affirm the Immigration

Judge’s legal conclusions for the reasons stated by the Immigration Judge

in the August 2008 decision (I.J. at 4–11).”
ZHI V. HOLDER 7

relevant factor,” she must do so in light 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). In other words,

the IJ “cannot selectively examine evidence in determining

credibility, but rather must present a reasoned analysis of the

evidence as a whole.” Tamang v. Holder, 598 F.3d 1083,

1093 (9th Cir. 2010); see also Bassene v. Holder, 737 F.3d

530, 538 (9th Cir. 2013) (stating that an IJ must view

“purported inconsistencies in light of all the evidence

presented in the case” (internal quotations and citations

omitted)). The IJ cannot “cherry pick solely facts favoring an

adverse credibility determination while ignoring facts that

undermine that result,” Shrestha, 590 F.3d at 1040, and must

consider the petitioner’s explanation for any inconsistency

that is “cited as a factor supporting an adverse credibility

determination,” id. at 1044. Under the REAL ID Act, an IJ

may base credibility determinations on factors that do not

“go[] to the heart of the applicant’s claim.” 8 U.S.C.

§ 1158(b)(1)(B)(iii); Ren, 648 F.3d at 1084 (recognizing

abrogation of the Ninth Circuit’s “heart of the claim” test). 

However, an IJ cannot base an adverse credibility

determination solely on an “utterly trivial inconsistency” that

“under the total circumstances [has] no bearing on a

petitioner’s veracity.” Shrestha, 590 F.3d at 1043–44.

The principal basis for the IJ’s adverse credibility finding

was that Zhi’s sister identified the date of the bookstore

closure as February 13, 2005, while Zhi and his mother dated

the closure on February 13, 2006. The IJ rejected Zhi’s

explanation that his sister merely “wrote down the year

wrong” in her letter. The IJ stated that, while she may

otherwise have considered the sister’s date a typographical

error, she refused to do so here because Zhi only offered his

explanation after he was questioned about it on cross-
8 ZHI V. HOLDER

examination. The IJ characterized the inconsistency as a

“major discrepancy” because Zhi relied heavily upon the

letters to establish his fear of persecution, and because it was

Zhi’s sister’s husband who ran the bookstore. The BIA

agreed, explaining that Zhi’s testimony about the closure date

was central to his evidence establishing “the circumstances

for which the Chinese government allegedly seeks to harm

him.”

The BIA and IJ ignored critical evidence that undermines

the adverse credibility determination. In her oral decision,

the IJ rejected Zhi’s argument that he had suffered past

persecution because of extreme economic deprivation. In

doing so, the IJ described the business receipts that Zhi

presented as “credible evidence.” These receipts include a

business license renewal dated December 26, 2005, and

twelve additional government-stamped receipts dated

between February 13, 2005, and February 13, 2006. The lastdated receipt was from January 31, 2006. These receipts

support Zhi’s explanation that his sister made a mistake when

she dated her letter. They also bolster Zhi’s testimony

identifying the closure date as February 13, 2006.

In light of this significant record evidence, we conclude

that substantial evidence does not support the BIA’s

determination that the conflict in dates resulted in a legally

significant discrepancy in the evidence. In light of 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 anything but an “utterly trivial

discrepancy” that “under the total circumstances [has] no

bearing on [Zhi’s] veracity,” see Shrestha, 590 F.3d at

1043–44. The evidence overwhelmingly supports Zhi’s

explanation that his sister, in either a slip of pen or a slip of
ZHI V. HOLDER 9

memory, misstated the year of the closure. Zhi’s testimony,

his mother’s two letters, the fact that his sister stated the same

date but a different year, the business license renewal, and the

twelve other receipts dated between February 13, 2005 and

February 13, 2006, all support Zhi’s dating of the bookstore

closure and his explanation that his sister made a mistake

when she dated her letter. We therefore conclude that

substantial evidence does not support the agency’s finding

that the discrepancy in dates undermines Zhi’s credibility.

B.

Although the IJ relied principally upon the discrepancy in

dates to support her decision, she also indicated that Zhi’s

“very short-lived marriage” to Santos after arriving in Guam

was suspect. The IJ concluded that Zhi’s marriage to Santos

was an “attempt[] to remain in the United States,” and found

it particularly significant that Zhi had entered Guam on a B-1

non-immigrant visa rather than a K-1 visa.3

The IJ made three legal errors in her treatment of Zhi’s

marriage to Santos. First, the IJ failed to consider Zhi’s

3 The applicable federal regulations explain that a B-1 visa is for

business purposes and does not lead to status as a lawful permanent

resident. 8 C.F.R. § 214.2(b)(1) (“Any B-1 visitor for business . . . may

be admitted for not more than one year and may be granted extensions of

temporary stay in increments of not more than six months.”). A K-1 visa,

which an immigrant who plans to marry a U.S. citizen promptly after

arrival may acquire, leads to status as a lawful permanent resident. 

8 C.F.R. § 214.2(k)(6)(ii) (“Upon contracting a valid marriage to the

petitioner within 90 days of his or her admission as a nonimmigrant

pursuant to a valid K-1 visa issued on or after November 10, 1986, the K1 beneficiary and his or her minor children may apply for adjustment of

status to lawful permanent resident.”).
10 ZHI V. HOLDER

explanation for why his marriage ended after just sixteen

months.4 An IJ must consider and address “[a]ll plausible and

reasonable explanationsfor anyinconsistencies” that form the

basis of an adverse credibility determination. Chen v. I.N.S.,

266 F.3d 1094, 1100 (9th Cir. 2001), judgment vacated on

other grounds, sub nom. I.N.S. v. Yi Quan Chen, 537 U.S.

1016 (2002); see also Osorio v. I.N.S., 99 F.3d 928, 933 (9th

Cir. 1996) (explaining that an IJ must “address in a reasoned

manner the explanations that [an applicant] offers for . . .

perceived inconsistencies”). Insofar as the IJ found the “very

short-lived” term of Zhi’s marriage to be probative of Zhi’s

motives for marriage and his overall credibility, it was error

4 The IJ’s exchange with Zhi about his marriage was limited to the

following:

Q: Did your second wife Shirley, the U.S. citizen, file

a visa petition before you divorced?

A: No, she didn’t.

Q: Did you state that you married her on August 23,

2005?

A: Yes.

Q: And did you state that the divorce was December 21,

2005?

A: No, that was the year 2006, December 21st, year

2006.

Q: Why did the marriage fail in such a short time?

A: We just were holding different opinions and that

causes (sic) the divorce.
ZHI V. HOLDER 11

to draw an adverse inference without first considering and

addressing Zhi’s explanation.

Second, although there are multiple possible reasons why

Zhi might have entered Guam on a B-1 non-immigrant visa

instead of a K-1visa, the IJ never questioned Zhi on the

matter. The IJ could not properly base her adverse credibility

determination on Zhi’s entry visa without first soliciting his

explanation for why he entered on a B-1 visa. See SotoOlarte v. Holder, 555 F.3d 1089, 1092 (9th Cir. 2009)

(holding that the IJ cannot base an adverse credibility

determination on a discrepancy without first asking the

applicant about it and giving him an opportunity to explain);

Ming Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111,

121–22 (2d Cir. 2006) (explaining that, where the IJ chooses

to rely on a basis for an adverse credibility determination that

is not “plainly obvious or dramatic,” the IJ must identify the

issue and provide the applicant with an opportunity to offer

an explanation). Here, the IJ engaged in speculation about

the meaning of Zhi’s entry visa instead of probing into the

matter to “develop[] a complete and accurate record on which

to decide [Zhi’s] asylum claims,” as was her adjudicatory

obligation. See Ming Shi Xue, 439 F.3d at 118–19 (citing

8 U.S.C. § 1229a(b)(1)). It is axiomatic that “[s]peculation

and conjecture cannot form the basis of an adverse credibility

finding, which must instead be based on substantial

evidence.” Shah v. I.N.S., 220 F.3d 1062, 1071 (9th Cir.

2000); see also Chawla v. Holder, 599 F.3d 998, 1004 (9th

Cir. 2010) (“[S]peculation cannot be used to support [an]

adverse credibility finding.”); Lopez-Reyes v. I.N.S., 79 F.3d

908, 912 (9th Cir. 1996) (explaining that an IJ must offer a

specific and cogent reason for his adverse credibility

determination and that “conjecture is not a substitute for

substantial evidence”). Insofar as the IJ relied upon Zhi’s
12 ZHI V. HOLDER

entry visa to conclude that Zhi married solely to remain in the

country, she impermissibly based her conclusions on

“speculation and conjecture,” instead of seeking an

explanation that might have clarified the matter.

Last, and most important, the IJ did not give any

consideration to Zhi’s testimony that Santos never filed a visa

petition for him. This proof-in-the-pudding fact undermines

the IJ’s assumption that Zhi married Santos to stay in the

United States. As with the business receipts, the IJ violated

her duty to consider and address “relevant evidence that tends

to contravene a conclusion that a given factor undermines

credibility.” See Shrestha, 590 F.3d at 1044.

The IJ committed several errors in her treatment of Zhi’s

marriage to Santos. On remand, the BIA and IJ must

consider Zhi’s explanation for why his marriage ended after

sixteen months, provide Zhi with an opportunity to explain

his visa decision, and take into account the probative fact that

Santos did not file a visa petition.

C.

We next address the third and final basis for the decision

below: Zhi’s failure to submit corroborative evidence. Under

the REAL ID Act, “[w]here the trier of fact determines that

the applicant should provide evidence that corroborates

otherwise credible testimony, such evidence must be

provided unless the applicant does not have the evidence

and cannot reasonably obtain the evidence.” 8 U.S.C.

§ 1158(b)(1)(B)(ii). The Real ID Act thus allowed the IJ to

demand that Zhi provide corroborative evidence to meet his

burden of proof. The BIA affirmed the IJ’s ruling that Zhi

“has not submitted reasonably available corroborative
ZHI V. HOLDER 13

evidence to substantiate his claim of an objective fear of

persecution.” Specifically, the IJ found it persuasive that Zhi

did not provide letters or information from the Falun Gong

practitioner who used Zhi’s bookstore, other Falun Gong

practitioners who purchased books there, or Falun Gong

officers living in Guam or Saipan.

Zhi argues that he was “never put on notice” that he

needed to produce the corroborative evidence identified by

the IJ in her oral decision and was not given an opportunity

to explain his failure to do so.5

In Ren, we held that the IJ

must provide an otherwise credible applicant with “notice and

an opportunity to either produce the evidence or explain why

it is unavailable.”6648 F.3d at 1090–92 & n.13. The court

based its reasoning on a plain reading of the statute’s “futureoriented” text. Id. at 1091. In particular, we determined that

the following three clauses dictate that the IJ must provide

5 The government argues that we do not have jurisdiction to hear this

argument because Zhi did not raise the argument before the BIA. 

Although Zhi did not expressly raise the issue of notice in his brief to the

BIA, he did argue to the BIA that “the IJ’s adverse credibility finding

must be set aside” and that his fear of returning to China was “also

corroborated by letters from his sister and mother.” With this argument,

Zhi challenged the IJ’s overall credibility determination and denial of his

claims for asylum and withholding of removal. The “notice” requirement

is a sub-part of that overall determination, and we therefore have

jurisdiction over this issue. See Ren, 648 F.3d at 1084.

6 Other circuits that have addressed whether an IJ must provide notice

before requiring corroboration have split on the issue. In Ren, we aligned

with the Third Circuit’s decisions in Chukwu v. Attorney Gen. of U.S.,

484 F.3d 185, 192 (3d Cir. 2007) and Toure v. Attorney Gen. of U.S.,

443 F.3d 310, 324 (3d Cir. 2006). The Second and Seventh Circuits have

reached the opposite conclusion. See Liu v. Holder, 575 F.3d 193, 198 (2d

Cir. 2009); Rapheal v. Mukasey, 533 F.3d 521, 530 (7th Cir. 2008).
14 ZHI V. HOLDER

notice: First, the requirement that an applicant “should

provide evidence,” not that he “should have provided

evidence”; second, the phrasing that evidence “must be

provided,” rather than “must have been provided”; and third,

the final clause concerning an applicant who “does not have”

and “cannot reasonably attain” corroborating evidence. Id. at

1091–92. Because “the grammatical structure of the

controlling clause makes the provision’s meaning absolutely

clear,” id. at 1091, we gave effect to the “unambiguously

expressed intent of Congress” that the IJ must provide notice

and an opportunity to the applicant of the corroborative

evidence necessary to carry the applicant’s burden of proof,

see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 843 (1984). Further, we explained that the

canon of constitutional avoidance favors the notice

requirement because the Fifth Amendment right to a “full and

fair hearing” provides the applicant with “a reasonable

opportunity to present evidence on his behalf.” Ren, 648 F.3d

at 1092 (internal quotations and citations omitted).

Applying Ren here, we hold that the IJ erred because she

did not provide notice to Zhi that he was required to present

the corroborative evidence she referred to in her decision. 

Nor did the IJ give Zhi an opportunity to explain why such

evidence might be unavailable.

This case illustrates well the importance of Ren’s holding. 

The record suggests that Zhi’s sources put themselves at risk

of persecution to deliver the letters he presented to the IJ. His

mother explained that government officials threatened her

and are monitoring her outgoing mail. Zhi’s father told him

never to contact his parents again. And, Ming, Zhi’s friend

who mailed his mother’s letters in secrecy to avoid

government interception, is so concerned about being
ZHI V. HOLDER 15

persecuted himself that he told Zhi that he could no longer

provide him with assistance. If the Chinese government has

placed these individuals surrounding Zhi under a close eye,

it surely follows that the actual practitioner of Falun Gong

who stored materials in the bookstore would face serious risk

if he provided a written statement to Zhi that amounted to an

admission of guilt in China. Further, even if Zhi were able to

obtain such a statement, the Falun Gong practitioner may not

be able to send it “in the same manner as the letters from his

family and friends,” as the BIA presumed was possible,

because Zhi’s parents and Ming have asked Zhi not to contact

them again. In sum, it would be a tragic irony if an applicant

for asylum seeking shelter from government persecution was

required to put others at imminent risk of the same

government persecution to establish the viability of his

application. Cf. Zhou v. Gonzales, 437 F.3d 860, 866 (9th

Cir. 2006) (holding that it was impermissible for the IJ to

give diminished weight to warrants because they were faxed

when the applicant’s family would have faced criminal

prosecution for sending the originals).

To be clear, Zhi does not argue on appeal that the

requested corroborative evidence is unavailable, and we do

not so hold. Indeed, there may be ways for Zhi to access the

information the IJ requests.7 We recount these facts only to

underline the difficulty of Zhi’s situation and the purpose that

notice and opportunity will serve. The REAL ID Act

requires, as we recognized in Ren, that the IJ provide Zhi with

an opportunity to navigate the risks and logistical complexity

7 For instance, Zhi’s sister mailed her letter directly to Zhi and did not

express any fear that she faced government persecution for corresponding

with him. She may be able to assist in sending additional information to

Zhi without facing serious risk of persecution.
16 ZHI V. HOLDER

in obtaining the requested corroborative evidence or, in the

alternative, an opportunity to explain why it is not reasonably

available.

III.

We hold that the BIA and IJ erred in arriving at their

adverse credibility determination. They must revisit the

adverse credibility determination in light of this opinion. See

id. If additional corroborative evidence is deemed necessary

for Zhi to carry his burden of proof, then the notice

requirements in Ren apply. For the reasons stated above, we

grant Zhi’s petition and remand for further proceedings

consistent with this opinion.

PETITION GRANTED and REMANDED.