1 We substitute Attorney General Alberto Gonzales for his predecessor, John Ashcroft.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-4009

XIU PING HUANG,

Petitioner,

v.

ALBERTO GONZALES, Attorney General

of the United States,1

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A77-322-383

____________

ARGUED DECEMBER 15, 2004—DECIDED APRIL 14, 2005

____________

Before KANNE, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Chinese citizen Xiu Ping Huang

applied for asylum, claiming that she would be persecuted

because of her membership in an illegal Catholic church if

she returned to China. An immigration judge denied

Huang’s application after a hearing because he found that

she was not credible and had failed to corroborate her tes-
2 No. 03-4009

timony, even though the judge acknowledged that members

of underground Catholic churches in China face widespread

persecution. During the hearing, however, the immigration

judge repeatedly interrupted the examination conducted by

Huang’s attorney and questioned Huang extensively about

her Catholic beliefs and practices. In discrediting Huang,

the immigration judge relied heavily on what he thought

were unsatisfactory answers to his questions—all of which

were based on information outside of the record. Our concerns about the judge’s conduct during the hearing lead us

to conclude that his decision is not supported by substantial

evidence and, accordingly, we grant Huang’s petition for

review.

I. BACKGROUND

Huang arrived in September 2000 at Los Angeles International Airport without proper documents to enter the

United States. She was sixteen years old at the time.

Huang was interviewed at the airport and said that she had

come to the United States because “I want to live here and

hopefully, find a job.” Officials refused her entry into the

country and detained her for five months. At a hearing

before an immigration judge in San Francisco shortly after

her arrival, Huang said that she intended to seek asylum

because she feared she would be persecuted on account of

her religion if she returned to China. Huang then retained

an attorney and applied for asylum. She subsequently moved

to the Chicago area and was granted a change of venue. A

new immigration judge denied her application after a hearing in July 2002. The Board of Immigration Appeals (BIA)

affirmed without an opinion.

At the hearing, Huang testified that in 1997 she and her

parents became active in an underground Catholic church

in Changle, a city in China’s Fujian province. She explained

that the Chinese government allows Catholics to worship
No. 03-4009 3

only at a single officially sanctioned church, which denounces

the authority of the Pope, so many Chinese Catholics

instead worship in illegal underground churches. Huang’s

church had about 15 worshippers, met in a neighbor’s home,

and was led by her father and another member of the congregation. The church held mass when it could, but its priest

was not always available. In addition to mass, the church

members met for scripture readings and Bible study.

Huang testified that officials at her junior high school in

December 1998 discovered a rosary in her purse. Once the

school learned of her Catholic beliefs, she said teachers and

administrators gave her demerits, lowered her grades, and

refused to let her take an entrance exam to attend senior

high school. She testified that she was permitted to finish

the ninth grade, but was refused a diploma for finishing

junior high school and was not able to attend senior high

school. Huang stayed at home for the next ten months, and

during this time she read her Bible and attended church.

Government officials later learned of Huang’s underground

church, and in July 2000 police raided her home. Huang was

not home at the time but she testified that several people

were arrested and that she thereafter went into hiding. She

also testified that her father was later arrested and that her

mother relocated several times to evade the authorities.

During the hearing, the immigration judge repeatedly interrupted Huang’s direct examination and challenged her

about Catholic doctrine and rituals. The judge’s questioning

was extensive, taking up approximately half the pages in

the hearing’s transcript. The information about Catholicism

upon which the judge relied nowhere appears in the record,

and in some instances he refused to allow Huang to explain

what he believed were discrepancies or inaccuracies in her

answers. Huang’s attorney tried repeatedly to object, but the

judge told counsel not to interrupt his questioning.

The immigration judge found that Chinese authorities

“ ‘have tightened their grip’ over the official Catholic Church
4 No. 03-4009

and sought to eliminate the underground Catholic Church

which has not been [sic] to government control.” But he

nevertheless denied Huang’s application because he found

her not to be credible for several reasons: (1) her answers

concerning her knowledge of Roman Catholicism were “disassembling” and contained what he believed was “clearly

inaccurate” information; (2) she was unable to identify the

whereabouts of the priest of her underground church in

China; (3) she was unable to describe the Catholic church

that she claimed to attend in Chicago and did not attend

church regularly for reasons the judge found ranged “from

the transparent to almost the ridiculous”; and (4) she mentioned nothing about religious persecution in her initial

interview at the airport. In addition to finding Huang not

credible, the immigration judge found that she failed to

corroborate her testimony with even “the most commonsensical support” of her Catholic beliefs, such as a letter

from her mother or her priest.

II. ANALYSIS

Huang challenges the immigration judge’s credibility

finding, arguing that it is unsupported by the record and

does not provide substantial evidence for the decision denying her asylum. Where, as here, the BIA summarily affirms,

we review the immigration judge’s opinion as if it were that

of the BIA. Ghebremedhin v. Ashcroft, 385 F.3d 1116, 1119

(7th Cir. 2004). Our review is limited to determining if the

immigration judge’s decision is supported by substantial

evidence. Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.

2003). When a decision is based on an adverse credibility

finding, we will defer to the immigration judge provided that

the credibility finding is supported by “specific, cogent

reasons” that “bear a legitimate nexus to the finding.” Capric

v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir. 2004) (internal

citation and quotation omitted). 
No. 03-4009 5

 Huang first argues that she was “hardly given an opportunity to present a case” because the immigration judge

took over her direct examination, turning it at times into

“an outright interrogation.” Huang does not argue that the

immigration judge’s conduct violated her right to due process, see Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir. 2003)

(per curiam) (immigration judge “took over the questioning”

from applicant’s attorney and excluded “complete chunks”

of testimony); Podio v. INS, 153 F.3d 506, 509-10 (7th Cir.

1998) (judge frequently interrupted testimony and refused

to allow a supporting witness to testify), but instead claims

that it influenced his credibility finding. In general, an immigration judge may question an asylum applicant provided

that his conduct does not demonstrate impatience, hostility,

or a predisposition against the applicant’s claim. Hasanaj

v. Ashcroft, 385 F.3d 780, 783-84 (7th Cir. 2004). But here

the immigration judge did more than ask Huang a few

questions; he actively interjected himself into the proceedings, far exceeded his role of developing the record, and at

times assumed an inquisitorial role. See id.; 8 C.F.R.

§§ 208.9(b), 1208.9(b) (immigration judge shall conduct hearing “in a nonadversarial manner”). More troubling is the

judge’s repeatedly questioning based on his own assumptions

about Catholicism rather than any information contained

in the record. We are concerned that the judge’s questioning

of Huang’s religious observance tainted his analysis of her

credibility, and with that in mind we turn to Huang’s specific

arguments regarding the grounds given by the immigration

judge for his adverse credibility finding.

Huang argues that the immigration judge’s first ground

for his credibility finding—Huang’s purported lack of knowledge about Catholicism—is improperly based solely on the

judge’s own personal beliefs about the religion. Indeed, the

Catholic doctrine and practices about which the judge

assumed Huang should have been familiar are described

nowhere in the record. Furthermore, the judge based his
6 No. 03-4009

credibility finding partly on mischaracterizations of Huang’s

testimony and partly on perceived inaccuracies in her testimony that he did not allow her to explain. For example,

the immigration judge characterized Huang as testifying

that there exists multiple types of baptism in Catholicism,

but then dismissed this testimony as “clearly inaccurate”

because “there are not.” But Huang never testified that there

are multiple types of baptism; in response to repeated questions from the immigration judge, she stated only that the

word “baptize” can be translated using two different Chinese

terms. Later in the hearing, Huang’s attorney sought to ask

her about the different terms and about the specific ceremonial attributes of each, but the judge cut off this line of

questioning, saying “I don’t think it’s been established

exactly whether this difference, which the respondent did

refer to, I agree, has any resonates in Catholic doctrine or

teaching . . . . Unless you have some information to show

that there is such a distinction made, there’s no reason to

pursue it.” His ruling then faulted Huang for thinking that

Catholics recognize multiple types of baptism—the very

thing he refused to allow her to explain.

The record contains other examples of the immigration

judge questioning Huang aggressively about religious practices and then mischaracterizing her testimony. At one point,

the immigration judge demanded a specific name for the

service held by a Catholic church on Sundays. Huang replied, “We call it mass,” but added that her underground

church’s priest was not always available to hold mass. That

led to this exchange:

IJ: I see. So there wasn’t always a priest there, you’re

saying.

A: No.

IJ: So then sometimes your father celebrated the mass,

correct?

A: Yes.
No. 03-4009 7

IJ: Okay. Well, do you know that only a priest may

celebrate a mass? Do you know that?

A: Yes, I know that.

IJ: Well, then, how could your father do it then?

A: He’s not in charge of the mass. He’s just leading the

congregation for the scripture reading and Bible

study—Bible reading.

IJ: Well, ma’am, there could be no mass without the

priest. If there was no priest there, there could be

no mass, so—so I take it, then even though—so what

is your response to that, ma’am? If you say that

there was a mass and your father was there and

presiding, how could that—that’s contrary to

Catholic teaching. How could that be?

A: What do you mean, my response to this?

IJ: Well, do you stand by what you said earlier?

A: Yes.

It is unclear from this testimony whether Huang meant

that her father led a mass or whether he led an alternative

ceremony in the absence of the priest, but the immigration

judge acted as if he had caught Huang misstating an obvious fact. Furthermore, nothing in the record establishes

who may lead a mass or any other type of Catholic service—

particularly in an underground Chinese church, which because of its illegal status might have to deviate from formal

practices.

There is likewise nothing in the record to substantiate

several of the judge’s other questions about the Chinese

church, which included inquiries about the name of Huang’s

“parish,” the “religious order” of her priest, and the name of

the “rectory” where her priest lived. Once again, nothing in

the record establishes, as the immigration judge apparently

assumed, that Chinese Catholics must be members of
8 No. 03-4009

parishes or that priests must belong to orders or live in

rectories. The portion of the immigration judge’s decision

addressing Huang’s knowledge of Catholicism is based entirely on either the judge’s personal beliefs or some perceived

common knowledge about the religion, and is thus not a

proper basis for an adverse credibility finding. See Lin v.

Ashcroft, 385 F.3d 748, 755-56 (7th Cir. 2004) (immigration

judge’s skepticism “utterly unsupported by any facts in the

record” cannot provide basis for adverse credibility finding);

Elzour v. Ashcroft, 378 F.3d 1143, 1153 (10th Cir. 2004) (immigration judge may not rely on “speculation, conjecture, or

unsupported personal opinion” to find applicant’s testimony

implausible); Gao v. Ashcroft, 299 F.3d 266, 278-79 (3d Cir.

2002) (immigration judge’s “unsupported assumption”

insufficient basis for adverse credibility finding); Bandari v.

INS, 227 F.3d 1160, 1167 (9th Cir. 2000) (“Personal beliefs

cannot be substituted for objective and substantial evidence.”).

Huang next argues that the second basis for the immigration judge’s credibility finding—that she could not identify

the “whereabouts” of her priest in China—is improper. We

cannot understand why the immigration judge thought this

issue relevant to Huang’s asylum claim. The judge said that

Huang should have been able to locate the priest “considering the number of years that she claims she was in contact

with him.” But Huang had not been in China since 2000,

and it is unrealistic for the immigration judge to expect her

two years later to locate the priest of an illegal underground

church whose members have been targeted by Chinese

authorities. Nor do we understand how Huang’s inability to

contact her former priest would bear on her credibility.

Huang next argues that the immigration judge should not

have relied on her irregular church attendance in Chicago

in finding her not credible. Huang testified that she lives in

a Hispanic neighborhood and does not attend the church

nearest her home because services there are conducted only
No. 03-4009 9

in Spanish. The church she attends is further away, but she

does not go all the time because of transportation difficulties

and because she cannot fully understand the services, which

are conducted in English. The immigration judge deemed

Huang’s sporadic church attendance inconsistent with her

professed “fervent catholicism” and dismissed her explanations as ranging “from the transparent to almost the ridiculous.” We do not understand why the immigration judge

would find it “ridiculous” that Huang might not regularly

attend an English-language church service that she could

not fully comprehend, especially at a church located some

distance from her home. Furthermore, the basis for Huang’s

asylum claim is not that she is a “fervent” Catholic—she

never said she was—but rather that she belonged to an

illegal church. Nothing in her testimony or the record

suggests that Chinese officials target only “fervent” members of illegal churches. 

Next, Huang contends that the immigration judge should

not have based his adverse credibility finding on her failure

to mention her fears of religious persecution when she was

interviewed by immigration officials at the airport. It is true

that an adverse credibility finding can be supported by new

factual assertions made in an application for asylum that

were not made originally to officials upon arrival in the

United States. See Balogun v. Ashcroft, 374 F.3d 492, 501

(7th Cir. 2004); Oforji v. Ashcroft, 354 F.3d 609, 614 (7th Cir.

2003). But the immigration officer at the airport never

asked Huang whether she was afraid of returning to China

or wished to seek asylum. We have previously cautioned

that airport interviews are less reliable when, as here, the

questions asked are not designed to elicit the details of an

asylum claim. See Balogun, 374 F.3d at 505. Moreover, our

misgivings about other parts of the immigration judge’s

decision lead us to conclude that Huang’s failure to mention

her fear of religious persecution at the airport is not sufficient to discredit her. Cf. Georgis, 328 F.3d at 970 (vacating
10 No. 03-4009

order of removal when five of the six reasons for adverse

credibility finding were improper or unsupported).

The immigration judge here exceeded his proper role in

questioning Huang and his conduct during the hearing

tainted his credibility finding. We conclude that the judge’s

adverse credibility finding here was improper because it relies far too much on his own personal experience and beliefs, and is thus unsupported by “specific, cogent reasons”

that “bear a legitimate nexus to the finding.” Capric, 355

F.3d at 1086 (internal citation and quotation omitted). 

Although we have determined that the immigration judge’s

credibility finding is an inappropriate basis for denying

Huang’s application for asylum, we must also address the

judge’s alternative ground that Huang failed to corroborate

her testimony. See Lin, 385 F.3d at 751. Huang argues that

the immigration judge’s demands for documentation of her

claims—he said she should have presented letters from her

mother and “her priest” attesting to her church membership—were unreasonable and difficult for her to obtain.

When an immigration judge denies an asylum application

for lack of corroborating evidence, the judge must: (1) make

an explicit credibility finding; (2) explain why additional

corroboration is reasonable; and (3) explain why the alien’s

explanation for not producing the requested corroboration

is inadequate. Gontcharova v. Ashcroft, 384 F.3d 873, 877

(7th Cir. 2004).

The corroboration the immigration judge requested here

was unreasonable because it was irrelevant to the key aspects of Huang’s asylum claim and would have addressed

only the judge’s unsupported concerns that Huang was not

truly a Catholic. We doubt that the judge would have considered a letter from Huang’s mother to be particularly

strong evidence. Cf. Lin, 385 F.3d at 757 (“Although the

government suggested at oral argument that affidavits from

her family members could have supported Lin’s case, we are
No. 03-4009 11

hard pressed to believe that these affidavits would have

convinced the IJ that Lin’s testimony was credible.”);

Kourski v. Ashcroft, 355 F.3d 1038, 1039 (7th Cir. 2004) (“it

is odd to think a brother’s affidavit would be persuasive

evidence”). As for the letter from “her priest,” it is unclear

whether the immigration judge meant Huang’s priest in

Chicago or her priest in China. A letter from her priest in

Chicago might have helped establish that Huang is now a

practicing Catholic, but that priest could not possibly corroborate any of the key events in China that provided the

basis for her asylum claim. If the judge wanted a letter from

her priest in China, this was not a reasonable request because Huang testified that she was unable to contact that

priest, and the immigration judge never explained why her

explanation was inadequate. We thus conclude that the lack

of corroboration was likewise an improper basis for denying

Huang’s application for asylum. Lastly, we note that Huang

also originally applied for withholding of removal and relief

under the Convention Against Torture. But neither her brief

to the BIA nor her opening brief in this court addresses

these claims, so they are waived. See Capric, 355 F.3d at

1087.

III. CONCLUSION

The decision denying Huang’s asylum is not supported by

substantial evidence. See Georgis, 328 F.3d at 967. Accordingly, her petition for review is GRANTED, the order of removal is VACATED, and this case is REMANDED for further

proceedings. Because of our concerns about the judge’s conduct during Huang’s removal hearing, we encourage the

BIA to assign this case to a new immigration judge. See,

e.g., Muhur v. Ashcroft, 355 F.3d 958, 961 (7th Cir. 2004).
12 No. 03-4009

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-14-05