In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2889

ZIGMEY LHANZOM,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A79-587-384

____________

ARGUED APRIL 7, 2005—DECIDED DECEMBER 5, 2005

____________

Before MANION, ROVNER and SYKES, Circuit Judges.

ROVNER, Circuit Judge. Zigmey Lhanzom is a Tibetan

Buddhist who sought asylum in the United States as well

as withholding of removal and relief under the United

Nations Convention Against Torture (“CAT”). The immigration judge (“IJ”) found that Lhanzom missed the deadline

for filing an asylum claim and failed to meet the criteria for

withholding of removal or relief under CAT. He therefore

denied her claim in full and ordered that she be removed to

the People’s Republic of China. The Board of Immigration

Appeals (“BIA”) affirmed, without opinion, the decision of

the IJ. Lhanzom petitions for review and we grant the

petition in part, dismiss it in part, and remand for further

proceedings consistent with this opinion.
2 No. 04-2889

I.

Lhanzom was born in Tibet in 1964. The People’s Republic of China (hereafter “China”) invaded and annexed Tibet

in 1949 and has occupied Tibet since that time. Tibet

currently is considered part of China and Lhanzom is

therefore considered a citizen of China. In 1957, Lhanzom’s

father, Sedan Khampa, joined a Tibetan military resistance

group called Chushr Gangdruk. As a member of Chushr

Gangdruk, Khampa fought against the Chinese government

primarily in an area of eastern Tibet called Kongo. The

fighting took him at times into Nepal and at times back into

Tibet. He had limited contact with his family during that

time, meeting up with his wife on occasion. In 1965, a year

or so after Lhanzom was born, Khampa and his wife

escaped to Nepal, leaving Lhanzom and her older sister,

Tseyyang, with relatives in Tibet. Khampa and his wife

later settled in Sikkim in India. They resided in Sikkim

from 1966 until 2002. In 2002, Khampa and his wife moved

to the United States where another daughter had obtained

citizenship.

According to her testimony before the IJ, Lhanzom and

Tseyyang had been left in the care of their uncle and his

wife. Her uncle, Gampal, was a lama, a Tibetan Buddhist

monk. Because his brother was a resistance fighter and

because he was a lama, Gampal was eventually arrested by

the Chinese government and imprisoned along with

Tseyyang. Gampal’s home was ransacked and he was

beaten. Lhanzom fled to Chamdo (a city in Tibet) when this

happened, and went into hiding. Gampal and Tseyyang died

in prison in 1986 as a result of beatings and other mistreatment. Lhanzom was subsequently taken to a labor camp

near Chamdo where she spent the next two or three years.

In the labor camp, she was forced to work on road construction during the day and subjected to Communist propaganda at night. Her captors demanded that she renounce

the Dalai Lama, the ruler and chief monk of Tibetan
No. 04-2889 3

Buddhism, and threatened to beat her if she did not comply.

At times, when she did not comply with their demands,

government agents forced her to stand and bend down for

hours and hours, and beat her on her back. Lhanzom was

22 or 23 when the government placed her in this labor

camp. Two or three years later, in 1989, there was a

relaxation of government policy against Tibetan Buddhists

and Lhanzom was among a number of people released from

the labor camp. She reported that she was released because

she was weak and ill and therefore unable to do much work.

On her release, she went to live with another uncle in

Rioche (another city in Tibet). There she married Nima

Dhondup. This uncle, who was also a lama, had also spent

considerable time in prison and was in a weakened condition. He died a short time after Lhanzom’s arrival in

Rioche. After her uncle died, Lhanzom and her husband

went on a pilgrimage to Lhasa, the capital of Tibet. During

the journey, Dhondup, who had been in poor health because

of his time in prison, became ill with food poisoning and

died.

Lhanzom, now without family and with no place to go,

stayed in Lhasa and began participating in demonstrations

against the Chinese government. She was promptly arrested and was held for three days. On her release, she met

up with friends who were willing to help her escape

to Nepal. In Lhanzom’s own words (as translated at her

hearing):

The journey took whole month because during the

daytime we hid, sleep, and then at night-time we

escape. On the way we suffered tremendous stress,

pain, and, you know, from hunger because during those

days, it was very cold. There were snowy mountains,

there were big mountains to cross, and there was lack

of food so we were most of the time hungry and I

wondered if I would ever reach Nepal and see other
4 No. 04-2889

1 We take judicial notice that the Himalayan Mountains separate

Tibet from Nepal.

people, my family or whoever, but thanks to God, finally

I was able to reach there.

R. at 66.1

 Once in Nepal, Lhanzom set about the task of

tracing her remaining family members. With the help of the

Gyatutsang family, she was able to find her father in

Sikkim in India. Although Sikkim was home to many longtime Tibetan refugees, the government there was much

more suspicious of new arrivals and had a policy of deporting new refugees. To avoid deportation, Lhanzom’s father

took her first to Dharamsala, a town in northern India

which is the home of the Tibetan government-in-exile.

Lhanzom stayed in Dharamsala for a few months but its

distance from Sikkim made it difficult to visit her family so

she moved to Darjeeling, which is a four-hour drive from

Sikkim. In Darjeeling, Lhanzom worked as an assistant

cook at Sonada, a Tibetan monastery. She estimated that

she worked at Sonada from 1991 to 1996. During that time,

she participated in political activities, including marches

and demonstrations in both Darjeeling and Sikkim. These

activities were protests for Tibetan freedom, demanding

that China leave Tibet and restore its independence. During

this time, Lhanzom joined the Tibetan Youth Congress and

the Tibetan Women’s Association, explaining that her

political activities and memberships centered around

Darjeeling and Sikkim rather than Dharamsala because she

was in Dharamsala for only a brief period. Although the

Indian government did not persecute Lhanzom, she had few

rights in India and was unable to obtain any particular

registration or papers from the government. Her only

identification documents came from the Tibetan

government-in-exile. She had no hope of being granted

asylum in India given that, even her parents, who had
No. 04-2889 5

resided there for more than thirty years, were unable to

obtain asylum.

In the meantime, one of Lhanzom’s sisters had become a

citizen of the United States when the U.S. government conducted a lottery allowing one thousand Tibetan

families to immigrate here. Because Lhanzom had no

recognized government papers allowing her to come to the

United States, she went to Nepal and purchased a false

passport which, in combination with a sponsorship letter

from her sister, allowed her to travel to the United States

in 1997. She arrived in Chicago on October 25, 1997. At

first, she came on a tourist visa but later applied to

school and transferred to a student visa. Before her student

visa expired, she applied for asylum. While studying in the

United States, Lhanzom continued to participate in political

activities to protest China’s occupation of Tibet. She

attended demonstrations every March 10, which marked

Uprising Day, the day that Tibetans first resisted the

Chinese occupation. She participated in various demonstrations in New York, Washington and Chicago, protesting the

Chinese occupation of Tibet. During a demonstration at the

Chinese consulate in Chicago, Lhanzom noticed people

inside the consulate taking photographs of the demonstrators.

In support of her claim, Lhanzom presented documentary

evidence at her hearing before the IJ. She presented

pictures of herself at various demonstrations in Nepal,

Delhi, Chicago, and Washington D.C. She also presented a

resident identification card from the Peoples Republic

of China that she received when she was nineteen or twenty

years old. She submitted a birth certificate from the Tibetan

Welfare Office in Sikkim, explaining that no birth certificates were issued in Tibet itself and that the Indian

government would not provide one either. The Tibetan

government-in-exile issued the birth certificate after her

father certified that Lhanzom was his daughter. She
6 No. 04-2889

presented an identification document issued by the State of

Himachal Pradesh, which an Indian friend helped her

obtain. Finally, she submitted an identification document

from the Tibetan Youth Club in Gangtok, Sikkim, and a

green card from the Tibetan Welfare Office. When asked

what would happen if she returned to Tibet, Lhanzom

stated that she feared she would be imprisoned or executed

because of her personal involvement in demonstrations

against the Chinese government and because of her father’s

participation in Chushr Gangdruk.

Under cross-examination, Lhanzom again confirmed

that her Nepalese passport was a fake, purchased from

agents in Nepal who trafficked in counterfeit documents, a

fact Lhanzom had not hidden. She described how she took

the fake Nepalese passport to the U.S. embassy, along with

the sponsorship letter from her sister, Dawa Dolma, who

had obtained citizenship in the United States. She explained that it was impossible for her to get a Chinese

passport without going back to Tibet and risking prison

or death. She testified that when she first came to the

United States, she did not know asylum was even a possibility but learned about it through Tibetans she met here.

She spent much of her first year in the United States ill,

unable to adapt to conditions here. According to Lhanzom,

she delayed in filing her asylum application because of

illness and misinformation about the process. Moreover, she

did not have the necessary papers, having taken few things

with her when she left Nepal. Friends in the U.S. gave her

conflicting advice about filing such a claim and she saw the

situation as hopeless until she obtained more accurate

information. She filed her first asylum application on

August 27, 2001.

Lhanzom’s father, Sedan Khampa, also testified at her

hearing. Khampa testified that he joined the military group

Chushr Gangdruk in 1957 in order to fight the Chinese

invasion of Tibet. He fought the Chinese because China
No. 04-2889 7

persecuted Tibetans for their Buddhist religious beliefs. He

described the persecution and imprisonment of family

members that occurred as a result of the Chinese invasion.

He described his wife’s escape from Tibet across the Nepal

border in 1965, leaving their two daughters in the care of

relatives in Tibet. He confirmed that he and his wife settled

in Sikkim in India and lived there from 1966 until coming

to the U.S. in 2002. In 1990, he heard from friends that his

daughter Lhanzom had come to Nepal. When asked if he

knew what had happened to family members he left behind

in Tibet, he replied that he heard what happened to his

family from Lhanzom.

After the government cross-examined Khampa, the IJ

questioned the seventy-nine year old Khampa at length,

and the misunderstandings that are inevitable when

questioner and witness speak very different languages

abound in the record. For example, the IJ questioned

Khampa about moving to Nepal in 1965, when Khampa had

never testified that he moved to Nepal. Khampa testified

that he went to Nepal in 1965 to meet up with his wife but

did not stay long there. On another occasion, when

Lhanzom’s attorney tried to correct the IJ’s misunderstanding about the location of Sikkim, the IJ responded with

unusual defensiveness:

IJ: So then from 1965 until one year ago, you

spent that time where?

Khampa: So I left that resistant movement in 1965

since I heard that my wife has come so

I left that place and joined my wife.

IJ: Where did you go then? Did you stay in—

Khampa: I did not stay much inside Nepal. We

entered inside India.

IJ: Well, you had said that you had gone to

Sikkim which is a mountain kingdom.

Did you go to Sikkim?
8 No. 04-2889

Khampa: At that time, resistant movement was

disintegrating. Some were going there

and some were just all over and I tried to

enter with my wife into India.

Mr. Hagan: Your Honor, can I—

IJ: No, don’t interrupt him, please.

Mr. Hagan: I’m suggesting a question.

IJ: No, I don’t want you to suggest anything,

please.

Mr. Hagan: I believe Your Honor has a misapprehension.

IJ: Well, I don’t, sir. I don’t interrupt you

with your questions. I’m trying to get—

Mr. Hagan: I’ll redirect then, Your Honor, when I get

a chance.

IJ: Well, I haven’t promised you a chance to

do that. I already did offer you that opportunity earlier.

R. at 105-06. Undoubtedly, Mr. Hagan was trying to inform

the IJ that Sikkim is not a “mountain kingdom” as the IJ

erroneously stated but rather is a state in India. In fact,

Sikkim had ceased to be a kingdom and had become an

Indian state in 1975. Thus, the testimony that Khampa and

his wife went to India was not, in fact, inconsistent with his

statement that they went to Sikkim. Unfortunately, the IJ

repeated this error of geography when he found Lhanzom

testified inconsistently about her departure to the United

States, as we will later detail.

Although Khampa had testified that he knew about his

daughter’s life in Tibet only from talking to her after she

escaped in 1990, the IJ nonetheless questioned Khampa

extensively about Lhanzom’s life in Tibet. The IJ asked
No. 04-2889 9

Khampa why his daughter left Tibet, and Khampa replied that the relatives who had cared for her died and that

she had nowhere to stay. The IJ considered this an impeachment of Lhanzom’s story that she had been mistreated

in Tibet, remarking that Khampa did not mention anything

happening to Lhanzom in Tibet before her 1990 departure.

A confused exchange followed during which Khampa tried

to clarify that he was not in Tibet when these things

happened to his daughter, that she knew best what had

happened to her, and that he was making assumptions

based on what he knew happened to Tibetans in general.

Because this exchange was crucial to the IJ’s finding that

Lhanzom was not credible, we include it here:

IJ: [F]rom what you said, your daughter left

Tibet because her relatives died, not because she was being mistreated in 1990.

You didn’t mention that anything happened

to her before her departure in 1990. Why

would there [sic] something happen to her

in 2003?

Khampa: What she, we were separated, what she

suffered in there and she knows best. She

has suffered so much.

IJ: Well, sir, has she had any contact with the

authorities, by that, authorities, I mean the

Chinese police or military before she left in

1990?

Khampa: She has suffered under forced labor.

IJ: When did she experience forced labor, sir?

Khampa: It is not only my daughter but daughters

and sons of all the families whose parents

were involved in the resistant movement. I

was involved in the resistant movement

and our family was treated as reactionaries
10 No. 04-2889

by the Chinese, so reactionaries’ families

always suffer.

IJ: But you’re not answering my question.

I hear what you’re saying, sir, but what I’m

asking you is when did, when was your

daughter forced into slave labor? When?

From what year to what year?

Khampa: Chinese started cultural revolution in 1964

and during that time, all the youngsters

suffered, including my daughter even

though she was very young, but the older

one also suffered so much.

IJ: Okay, But you’re still not, this is the third

time I’m asking you the same question so I

want you to really focus on the question.

You said earlier that your daughter had to

work in forced labor. What year was that

and how long? When did she begin and

when did she end?

Khampa: Maybe she suffered around 1980 to 1990,

and before that she was too young.

IJ: So, for ten years she was working in forced

labor?

Khampa: Yes.

IJ: According to her asylum application, she

was born in 1964. Is that right? Was she

born then?

Khampa: Yes.

IJ: So she was in a forced labor camp from

when she was 20 to when she was 30?

Excuse me, I’m sorry. When she was 16 to

when she was 26?
No. 04-2889 11

Khampa: Yeah, around that time, when she was

around 15, 16, then they started.

IJ: And so she was there until she was 26

about?

Khampa: Yes.

IJ: And why was she released in 1990? Why

was she released in 1990?

Khampa: 1990 was an important point in her life

because many of her relatives, including

sisters have died and she has no where to

go, she has to make a decision and then

that’s why she decided to leave.

IJ: No, I didn’t ask you that, sir. I ask you, you

said that she was in a forced labor camp

until 1990, why was she released in 1990

after 10 years by the Chinese authorities?

Khampa: It is not leaving, it is escaping.

IJ: She escaped in 1990?

Khampa: Yes.

IJ: Okay. Then she left and went and joined

you in Nepal? She did?

Khampa: Yes.

IJ: Now, sir, would it surprise you if I told you

then that your daughter has told us earlier

that she was in a labor camp only two or

three years, not 10 as you’ve told us?

Khampa: To talk about time is difficult because, you

know, they suffered there and I was not

there to see the whole thing. They suffered

for a very, very long time.
12 No. 04-2889

IJ: But, sir, there is a substantial difference in

time obviously between 10 years and two or

three. How do you account for the fact that

you said 10 and she says two or three?

Khampa: My assumption was that, you know, after,

since 19—, when she was 15 years old and

I assumed that, you know, she is considered

as adult, 15, 16, 17, and then, you know, all

others have to undergo forced labor, therefore, I considered that, you know, that she

had been suffering for a very long time.

IJ: Sir, you said she escaped in 1990, however,

your daughter when she testified said that

she was let go by the Chinese officials in

1989 because she was so weak. Can you

explain why your version and hers differ?

Khampa: I’m old and I have very bad memory about

the dates and things like that. I make

mistakes, so I may have made mistakes

because I was not there.

IJ: So, could you be completely mistaken about

whether she was in a labor camp at all?

Khampa: I strongly know that, you know, she has

suffered and not only that her sister and

my other relatives all passed away under

the suffering.

R. at 150-53. This dubious cross-examination continued

even though Khampa had now told the IJ at least three

separate times that he was not present in Tibet when these

things happened to Lhanzom, that he was making assumptions about what happened to her based on what happened

generally to Tibetan Buddhists under the Chinese occupation, and that Lhanzom knew best exactly what had

happened to her and when. When he finished his question-
No. 04-2889 13

ing, the IJ excused Khampa and, as promised, did not give

Lhanzom’s attorney any opportunity to redirect and correct

any of the misunderstandings that leap from the transcript

pages. Lhanzom’s attorney and government counsel were

allowed to argue their respective positions to the IJ, who

then recessed and returned with an oral decision.

The IJ began by noting that Lhanzom filed her asylum

application on September 27, 2001 and had entered the

United States in October 1997. Because Lhanzom did not

meet the one year deadline for filing an asylum application,

the IJ considered whether she established extraordinary

circumstances that would justify the delay. The IJ concluded that Lhanzom failed to show extraordinary circumstances and failed to show she was in valid student status

or other lawful status up until the filing of the asylum

application. The IJ thus turned to Lhanzom’s alternate

claims for withholding of removal and protection under the

CAT.

The IJ acknowledged that China in fact occupies Tibet

and suppresses the practice of Tibetan Buddhism. The IJ

concluded that Lhanzom proved she is Tibetan, but found

that she misrepresented who she was when obtaining her

passport and visa in Nepal. He found that Lhanzom’s

testimony was consistent with her father’s testimony on the

issue of Khampa’s participation in the Tibetan resistance

movement but that there were material differences in their

testimony regarding Lhanzom’s activities. He set forth

these inconsistencies. First, in the statement Lhanzom filed

with her application for asylum (hereafter “Pre-Hearing

Statement”), she stated that she spent most of her youth in

labor camps during the day and at re-education meetings in

the evenings, from the time she could remember until 1989.

In contrast, the IJ stated, in her testimony Lhanzom

claimed she spent two or three years in a labor camp before

her release due to weakness. The IJ found that Khampa’s

story was inconsistent with his daughter’s statements
14 No. 04-2889

because he testified that she was in labor camps for ten

years before escaping. The IJ concluded that the accounts

differed as to the length of time she spent in labor camps

and the manner of her leaving custody.

The IJ also found inconsistencies in Lhanzom’s account of

what happened to her and where she lived after she left

Tibet. In her Pre-Hearing Statement, according to the IJ,

she reported that she went to Dharamsala, joined the

Tibetan Women’s Association and the Tibetan Youth

Association, and participated in a number of demonstrations that generated much publicity. At her hearing, she

testified that she participated in demonstrations and

political activities in India without providing any detail. In

contrast, according to the IJ, her father testified that she

stayed in a monastery, never had contact with the police,

and left India because her sister was living in the United

States. The IJ also concluded that Lhanzom’s documentary

evidence contradicted her testimony, including a letter from

the Tibetan Welfare Office stating that her last departure

from Sikkim was August 7, 1997, and a letter from the

Tibetan Youth Club stating that Lhanzom was a member of

the regional Tibetan Youth Congress of Gangtok, Sikkim

since 1993 and that during her stay in Sikkim, she was one

of the most active members.

The IJ considered these documents to be evidence that

Lhanzom lived in Sikkim rather than Darjeeling and

faulted her for claiming to have left for the U.S. from India

when the documents stated she left from Sikkim. The

IJ found that Khampa’s testimony that his daughter stayed

in a monastery the entire time she was in Darjeeling

inconsistent with Lhanzom’s testimony that

she participated in demonstrations:

Clearly, there are material inconsistencies in these

accounts. I find that the respondent and her witness

have given inconsistent testimony on material issues in
No. 04-2889 15

this case, that is, the extent of her mistreatment by the

Chinese authorities and her activities and whereabouts

in India after she left in 1989 or 1990. There also are

important inconsistencies between the documents and

her claims. The documents indicate that she is a

Nepalese. She claims she is from Tibet. Assuming that

she is from Tibet, I believe she is, she has not provided

an explanation of why she misrepresented her origins

and citizenship as reflected in the visa, indicating she

is Nepalese.

Oral Decision of the Immigration Judge, February 28, 2003

(hereafter “Oral Decision”), at 9; R. at 27. The IJ was not

persuaded that the Chinese government was aware of

Lhanzom’s participation in demonstrations in Chicago and

elsewhere, calling her claim pure speculation. The IJ

rejected Lhanzom’s claim that she would be mistreated,

incarcerated and abused if she was returned to China,

finding that she was not credible for the reasons he previously stated and finding that her father’s actions against

the Chinese were too remote in time and therefore unlikely

to cause any retribution against her. The IJ thus denied

Lhanzom withholding of removal or relief under the CAT.

He denied her voluntary departure and ordered her removed to China. The BIA summarily affirmed the IJ’s

decision without issuing a separate decision. Lhanzom

petitions this court for review of the IJ’s order.

II.

In her petition, Lhanzom argues that the IJ erred in

finding that her testimony differed from Khampa’s testimony in any material way. She also contends that she

adequately proved her claim of past persecution and that

her petition for asylum should therefore have been granted.

She maintains that she presented sufficient evidence of a
16 No. 04-2889

well-founded fear of future persecution and that the IJ

should have shifted the burden of proof to the government.

Because the IJ made so many factual errors, she asks that

the case be remanded to the IJ for a proper determination

of the facts. In sum, she contends that she was entitled to

asylum under the facts she proved at her hearing. She also

appeals the IJ’s denial of her claims for withholding of

deportation and for protection under the CAT. The government contends that we lack jurisdiction to review the IJ’s

dismissal of Lhanzom’s untimely asylum application. The

government also argues that, if we do have jurisdiction, we

must affirm because substantial evidence supports the IJ’s

conclusion that Lhanzom was not entitled to asylum.

Finally, the government maintains that the IJ properly

denied withholding of removal and protection under the

CAT.

A.

We begin with the jurisdictional issue raised by the

government. The government argues that because the IJ

dismissed Lhanzom’s petition for asylum for failure to meet

the one year deadline, we lack jurisdiction to consider that

claim. Generally, asylum applications must be filed within

one year after the date of the alien’s arrival in the United

States. See 8 U.S.C. § 1158(a)(2)(B). Notwithstanding the

one year deadline, an asylum application may be considered

if the alien demonstrates either the existence of changed

circumstances which materially affect the applicant’s

eligibility for asylum or extraordinary circumstances

relating to the delay in filing the petition. 8 U.S.C. §

1158(a)(2)(D). However, “[n]o court shall have jurisdiction

to review any determination of the Attorney General” under

those timing provisions. 8 U.S.C. § 1158(a)(3). In reviewing

the IJ’s Oral Decision, it appears that the IJ denied rather

than dismissed Lhanzom’s asylum application. Oral
No. 04-2889 17

Decision at 11 (“It is ordered that the respondent’s application for political asylum, withholding, and protection under

the Torture Convention, be denied.”); R. at 29. A denial

would suggest a ruling on the merits rather than a procedural ruling on the timing of Lhanzom’s application, but a

review of the entire Oral Decision suggests that this was

simply a careless choice of words rather than a ruling on

the merits. Earlier in the Oral Decision, the IJ found that

Lhanzom had not met the one year deadline and had not

presented facts sufficient to justify the delay. After that

finding, the IJ did not address the asylum claim again until

“denying” the claim in the final two sentences of the Oral

Decision. In context, it is clear that the IJ intended to

dismiss the asylum claim as untimely filed, and the petitioner’s attorney conceded as much at oral argument.

Indeed, at oral argument, the petitioner’s attorney conceded

that we lacked jurisdiction to review the asylum claim. See

Nigussie v. Ashcroft, 383 F.3d 531, 533-34 (7th Cir.

2004) (this court lacks jurisdiction over the immigration

service’s decision to bar an asylum application based on

untimeliness, pursuant to 8 U.S.C. § 1158(a)(3)). We will

therefore turn to the claims for withholding of deportation and relief under the CAT. Nigussie, 383 F.3d at 534

(although this court, under § 1158(a)(3), may lack jurisdiction to consider the merits of an asylum claim, that

section does not bar our review of an application for withholding of removal or relief under the CAT).

B.

When the BIA summarily affirms the decision of the IJ,

the IJ’s decision becomes that of the BIA for purposes

of judicial review. Georgis v. Ashcroft, 328 F.3d 962, 966-

67 (7th Cir. 2003). Because the BIA affirmed summarily

in the instant case, we will review the IJ’s Oral Decision.

We review denials of petitions for withholding of deporta-
18 No. 04-2889

tion and denials of relief under the CAT for substantial

evidence. Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir.

2003); Georgis, 328 F.3d at 967. The IJ’s decision must be

upheld if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.

Uwase, 349 F.3d at 1041; Georgis, 328 F.3d at 967. In order

to make out a claim for withholding of removal, Lhanzom

must demonstrate that her life or her freedom would be

threatened in her home country on account of race, religion,

nationality, membership in a particular social group, or

political opinion. See 8 U.S.C. § 1231(b)(3)(A); Cuevas v.

INS, 43 F.3d 1167, 1171 (7th Cir. 1995). Unlike the decision

to grant asylum, which is discretionary even if the criteria

for asylum are met, the Attorney General must withhold

deportation if the alien meets the criteria stated for withholding of removal. Firmansjah v. Gonzales, 424 F.3d 598,

604-05 (7th Cir. 2005); 8 U.S.C. § 1232(b)(3)(A). Lhanzom

must demonstrate by a clear probability that she will face

persecution if she is removed to China. Zheng v. Gonzales,

409 F.3d 804, 809 (7th Cir. 2005). A clear probability exists

when the applicant demonstrates that it is more likely than

not that she will be persecuted if returned to her native

country. Zheng, 409 F.3d at 809. If Lhanzom is able to show

she suffered past persecution, a presumption arises that the

persecution will continue upon her return. Zheng, 409 F.3d

at 809. To obtain relief under the CAT, the petitioner must

“establish that it is more likely than not that he or she

would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 208.16(c)(2); Nigussie, 383 F.3d at 534.

“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”

8 C.F.R. § 208.16(c)(2). Other evidence considered relevant

to the applicant’s burden of proof for the possibility of

future torture includes, but is not limited to, evidence of

past torture inflicted on the applicant, evidence of “gross,

flagrant or mass violations of human rights within the
No. 04-2889 19

country of removal,” and other information regarding

conditions in the country of removal. 8 C.F.R. § 208.16(c)(3).

See also 8 C.F.R. § 208.18 (defining what is meant by

“torture” under the CAT).

The IJ’s denial of Lhanzom’s claim was based largely on

his finding that Lhanzom did not provide credible evidence in support of her claim. That decision was based, in

turn, on alleged inconsistencies the IJ found among

Lhanzom’s Pre-Hearing Statement, her testimony and her

father’s testimony. Indeed, the IJ did not comment on

Lhanzom’s demeanor as a witness but relied entirely on

these alleged inconsistencies in finding her not credible.

“Credibility determinations are afforded substantial

deference, but they must be supported by specific, cogent

reasons.” Ahmad v. INS, 163 F.3d 457, 461 (7th Cir. 1999).

Moreover, these reasons must bear a legitimate nexus

to the finding. Because the entire case turns on the

IJ’s determination that these inconsistencies doomed

Lhanzom’s claim, we turn to those alleged inconsistencies.

The first inconsistency noted was Lhanzom’s use of a

Nepalese passport and visa to gain entry to the United

States. Lhanzom indicated on the visa that she was Nepalese and testified that she paid for this fake passport in

order to facilitate her departure to the United States. The

IJ concluded that Lhanzom must have misrepresented who

she was to the American Embassy in Nepal, which indeed

is exactly what Lhanzom testified that she did. The IJ

remarked that Lhanzom had “not provided an explanation

of why she misrepresented her origins and citizenship as

reflected in the visa, indicating that she is Nepalese.” Oral

Decision at 9. Of course, Lhanzom had provided an explanation for the Nepalese passport and visa. In her direct

testimony, she stated that she purchased a fake passport in

Nepal in order to facilitate her entry into the United States.

R. at 72. On cross-examination, she further explained that

it is impossible as a Tibetan to obtain a passport in Nepal
20 No. 04-2889

2 As we discuss infra, the State Department has documented

the difficulties for Tibetans in obtaining passports through

legitimate channels, and has also documented the dangers to

Tibetans who escape to Nepal and are subsequently forcibly

repatriated to China.

except by purchasing a fake passport and claiming to be

Nepalese. She testified that she claimed to be Nepalese

because “if I say I’m a Tibetan, that I’m from Tibet and

things like that, I need to have a passport. Who is going to

issue a passport? If I go back [to Tibet], I’ll be in prison.

There is no way of getting [a] passport from the Chinese

Embassy or anything, so I have to rely on this fake passport.” R. at 90. She explained that after escaping Tibet, it

was necessary to keep her presence in Nepal a secret from

Chinese authorities. R. at 90. Moreover, when she escaped

from Tibet into Nepal, she did not bring many papers with

her. R. at 92. Thus, the IJ was mistaken that Lhanzom had

not explained the fake passport. She had in fact provided a

very plausible and reasonable explanation for the use of the

fake passport and admitted these facts in direct testimony.

The use of a fake passport in these circumstances was no

mystery. If the rest of her story was true, Lhanzom had

escaped from Tibet in a treacherous one month journey over

the Himalayan mountains. As the government conceded,

Chinese repression and abuse of Tibetans is well-documented. Lhanzom was not in a position to go back to Tibet

to apply for a valid passport or to approach the Chinese

embassy in Nepal without putting herself at great risk.2

Thus, the IJ was incorrect as a factual matter that

Lhanzom had not explained the passport and visa, and this

was not a basis for finding Lhanzom not credible. See

Garcia-Ramos v. INS, 775 F.2d 1370, 1374 (9th Cir. 1985)

(petitioner’s ability to obtain passport through bribery or

other means may have little or no relevance to a claim for

persecution).
No. 04-2889 21

3 The 2001 State Department Report confirms that forced labor

occurs in a variety of settings in China, including in prisons,

detention centers, reeducation-through-labor facilities, and at

work sites where prisoners are used as uncompensated labor.

(continued...)

The IJ also found material inconsistencies in the evidence

regarding the timing and extent of Lhanzom’s stay in labor

camps. As we noted earlier, Lhanzom submitted a written

Pre-Hearing Statement in support of her asylum application. The IJ compared the Pre-Hearing Statement to

Lhanzom’s oral testimony and to her father’s oral testimony. According to the IJ, there were material inconsistencies among these three sources of evidence. Rather than

repeat the IJ’s lengthy and often inaccurate depiction of

these various pieces of testimony, we will confine our

discussion to the IJ’s errors of fact. In the Pre-Hearing

Statement, Lhanzom reported that, although she did not

remember much of her early childhood, she spent most of

her youth in labor camps during the day and re-education

meetings at night. In the re-education meetings, she was

forced to sing the praises of communism and renounce her

family and the former system of government. She stated

this was typical of her life until 1989. In her live testimony,

when asked what happened after her uncle, sister and

brother-in-law were imprisoned, she stated that she hid at

first in Chamdo and then was taken to a labor camp for two

to three years. She testified that she was released because

she was weak. Her father, as we have described, made clear

that he was not present in Tibet when these things happened to his daughter but assumed that she was subjected

to the same conditions as other Tibetans who were forced

into labor camps once they were deemed old enough to

work. From this assumption, Khampa testified that his

daughter would have spent approximately ten years in

labor camps, and that she then escaped to Nepal.3
22 No. 04-2889

3 (...continued)

Tibetans outside of detention settings also engage in labor

on public projects managed by local governments, without pay.

2001 State Dep’t Report at 48.

The IJ found Khampa’s ten year remark inconsistent with

Lhanzom’s testimony, and found Lhanzom’s oral testimony

inconsistent with her written Statement. There are a

number of problems with the IJ’s analysis. First, he

mischaracterized some of Lhanzom’s testimony. For

example, he faults her for stating she was in prison for two

to three years but she never testified that she was in prison,

only that she worked in a labor camp. He also faults the

testimony about the two to three year time frame as

opposed to the Statement about working in labor camps for

most of her youth, but neglects to mention that Lhanzom

spoke about this shorter time period in response to a

specific question about what happened to her following the

imprisonment of her uncle, sister and brother-in-law. She

was not asked during her live testimony about her youth.

Her testimony is thus not inconsistent because it addressed

a shorter, more specific time period about which she was

being questioned. Nor is her testimony inconsistent with

Khampa’s testimony. Khampa told the IJ repeatedly that he

was not present in Tibet when these things happened to his

daughter and that he was making assumptions based on

what happened to other Tibetans. Perhaps because the IJ

had admonished Lhanzom’s counsel not to “interrupt” him,

and perhaps because it is generally unwise to object to a

judge’s questions as lacking foundation, Lhanzom’s attorney

did not object to the IJ’s questions to Khampa after

Khampa admitted he had no personal knowledge and was

essentially guessing at what happened to Lhanzom. In any

case, testimony that is admittedly without foundation and

based on conjecture cannot impeach otherwise valid

evidence. Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir.
No. 04-2889 23

2004) (the court will not uphold adverse credibility determinations based on speculation or conjecture rather than on

evidence in the record).

The IJ also found inconsistencies in the evidence regarding Lhanzom’s departure from labor camps and entry

into Nepal. In her Statement, Lhanzom did not address how

she departed from the labor camp, stating only that in 1989,

she and her husband went on a pilgrimage to Lhasa, that

her husband died on the journey, that she then participated

in political protests against the Chinese in Lhasa, was

arrested and held for three days, that she was released and

then escaped to Nepal. In her live testimony, Lhanzom

stated she was released from the labor camp because there

was a relaxation of Chinese policy and she was too weak to

work much. She then detailed her marriage, the journey to

Lhasa, her husband’s death, her political activity, arrest,

release and escape to Nepal. Again, these stories are not

inconsistent but merely supplement each other. In reviewing the transcript of Khampa’s testimony, again, the only

thing that is clear is the level of confusion during his

testimony as the IJ continued to question him about

matters for which he had no personal knowledge. The IJ

found a material inconsistency because Lhanzom stated she

was released from the labor camp and Khampa called her

departure an escape. Khampa’s characterization of

Lhanzom’s departure as an escape is hardly inconsistent

with Lhanzom’s story. Lhanzom’s departure from Tibet to

Nepal certainly was an escape, and her father might see his

daughter’s release from labor camp due to weakness as a

kind of escape. See Iao v. Gonzales, 400 F.3d 530, 534 (7th

Cir. 2005) (noting a frequent insensitivity in immigration

hearings to the possibilities of misunderstandings caused by

the use of translators of difficult languages such as Chinese). And again, it is improper to impeach Lhanzom’s

testimony with testimony that is admittedly not based on

personal knowledge.
24 No. 04-2889

There are similar errors in the IJ’s analysis of the

evidence regarding what happened to Lhanzom after she

left Tibet. In her Statement, Lhanzom provided some detail

about her participation in demonstrations against the

Chinese government while in India. In her testimony, according to the IJ, she did not provide detail. It is

difficult to see how failing to repeat details that appear

in the earlier Pre-Hearing Statement amounts to an

inconsistency. Indeed, we see many cases where immigration judges criticize applicants for repeating in live

testimony evidence that already appears in a written

statement. The main inconsistency on this point seems to be

that Khampa testified that his daughter was in a monastery during the entirety of her stay in India and thus never

came into contact with police during demonstrations. Again,

the IJ questioned Khampa about his daughter’s activities in

India even though he was not present for them and had no

personal knowledge. When Lhanzom was in Dharamsala

and Darjeeling, Khampa was living in Sikkim. Had opposing counsel asked these questions posed by the IJ, they

would have undoubtedly been met with objections for lack

of foundation but counsel had been instructed not to

interrupt the IJ. Testimony given by a person who has no

firsthand knowledge of the facts cannot be used for impeachment. Yet this is exactly what the IJ did in his

analysis.

The IJ also found inconsistency between Lhanzom’s

testimony that she lived in Darjeeling from 1991 through

1996 and documents she submitted showing her membership in the regional Tibetan Youth Congress of Gangtok,

Sikkim. One document from the Tibetan Welfare Office

states that Lhanzom is a bona fide Tibetan who escaped

from Tibet in 1990. The document explains that she

visited Sikkim to see her parents but could not stay there

because Sikkim is a restricted area. This document is

perfectly consistent with Lhanzom’s testimony. The document states that her last departure from Sikkim was
No. 04-2889 25

August 7, 1997. R. at 178. Another document, on letterhead

of the Tibetan Youth Club and signed by the president of

the Regional Tibetan Youth Congress, certified that

Lhanzom is a bona fide Tibetan refugee and a member of

the Regional Tibetan Youth Congress, Gangtok, Sikkim,

India since 1992. According to this letter, “During her stay

in Sikkim, she was one of the most active member[s] of

T.Y.C.” R. at 179. When remarking on these documents, the

IJ underlined the phrase “her stay” and concluded that

Lhanzom lived in Sikkim in contradiction to her testimony

and her father’s testimony that she never lived in Sikkim.

Darjeeling, of course, is located very close to the state

of Sikkim, and there is no evidence in the record about

which regional office of the Tibetan Youth Congress a

resident of Darjeeling might join. Perhaps the regional

office in Gangtok, the capital of Sikkim, was closer to

Lhanzom’s home in Darjeeling and to her parent’s home

in Sikkim (where she often visited) than any other office.

No one asked her to explain these documents and the record

is devoid of evidence on this point. The IJ’s conclusion is

based on an assumption and assumptions cannot form the

basis of impeachment. Korniejew, 371 F.3d at 383.

The IJ also remarked:

[A] second document, also part of Exhibit 5, states that

“her last departure record from Sikkim was August 7,

1997,” yet the respondent did not testify that she left

from Sikkim, but rather obtained a passport in Nepal

and left from India.

Oral Decision at 8. We begin with what is now obvious:

leaving from Sikkim and leaving from India are the same

thing in much the same way that leaving from Illinois

and leaving from the United States are the same thing.

Sikkim is a state in India and this evidence is thus not

inconsistent. Moreover, the natural inference from

Lhanzom’s testimony is that she left from Nepal where she
26 No. 04-2889

obtained her passport and visa. In any case, the IJ’s

statement is nonsensical and cannot serve as the basis

for impeachment. All of the evidence presented was consistent on the point that Lhanzom visited her parents in

Sikkim and went to Sikkim to participate in political

events. At some point in time, she made her “last departure

from Sikkim.” Nothing in the letter indicates that her last

departure from Sikkim was to the United States and the

again the IJ was making an assumption for which there is

no support in the record.

Other obvious errors by the IJ include his finding that

Lhanzom claimed in her Statement to have lived in

Dharamsala for six or seven years. On the contrary, there

is no such assertion in the Statement, which instead attests

that Lhanzom worked in a monastery in Darjeeling from

1991 to 1996. The IJ also found there were inconsistencies

regarding the extent of Lhanzom’s mistreatment by Chinese

authorities, but fails to specify the inconsistency. Nor could

we find one. Lhanzom consistently testified at her hearing

and in her Statement that she was subjected to forced labor

for extended periods of time, that she was required to

renounce the Dalai Lama and the former Tibetan government, and that agents of the Chinese government beat her

and subjected her to posing in uncomfortable positions for

lengthy periods of time if she did not comply with their

wishes. Her father testified only that he knew his daughter

suffered much. There was no inconsistency in this testimony. Having found Lhanzom not credible based on these

alleged inconsistencies, the IJ concluded that she and her

father were exaggerating the threat to Lhanzom’s liberty

and life if she were removed to China. Because this conclusion rested on the unfounded finding that Lhanzom was not

credible, it cannot stand. Iao, 400 F.3d at 533 (case must be

remanded to the immigration service for a rational analysis

of the evidence when the IJ’s opinion is unreasoned and

there is no opinion by the BIA).
No. 04-2889 27

The government conceded at oral argument that if

Lhanzom’s account of her treatment in Tibet is credible, she

would meet the standard for demonstrating persecution.

The government also conceded that there is “no question”

that the Chinese government continues to persecute

Tibetan Buddhists. The February 2001, State Department

Report on China (“2001 Report”), which Lhanzom submitted

in support of her claim, presents a bleak picture for Tibetan

Buddhists. See Tamas-Mercea v. Reno, 222 F.3d 417, 423

(7th Cir. 2000) (recognizing State Department reports as

authoritative sources on the current political situations in

foreign states, and therefore as being helpful in determining whether a petitioner’s fear of future persecution is wellfounded). According to the State Department, particularly

serious human rights abuses persist in Tibet, where the

government carried out a “severe and wide-ranging crackdown on Tibetan religious practices.” 2001 Report at 2; R.

at 188. The 2001 Report noted that the U.N. Committee

Against Torture reported continuing allegations of serious

incidents of torture, especially involving Tibetans and other

national minorities. 2001 Report at 4; R. at 190. According

to the 2001 Report, the Chinese government also intensified

and expanded its “patriotic education” campaign aimed at

“neutralizing” lamas and other persons with sympathies

to the Dalai Lama. 2001 Report at 23; R. at 209. In addition

to these comments, the Report contains a special section

addressing Tibet, which corroborates many of Lhanzom’s

specific claims about her treatment in Tibet. The Chinese

government strictly controls access to and information

about Tibet, making it difficult to determine the extent of

human rights abuses. The State Department nonetheless

reported that it received credible reports that Chinese

government authorities continued to commit numerous,

serious human rights violations in Tibet including instances

of torture, arbitrary arrest, detention without public trial,

and lengthy detention of Tibetan nationalists for peacefully

expressing their political or religious views. 2001 Report at
28 No. 04-2889

47-48; R. at 233-34. “Individuals accused of political

activism faced ongoing and serious persecution during the

year.” 2001 Report at 48; R. at 234. Recall that this 2001

Report covered the time period after Lhanzom reported that

the government had relaxed some of its policies against

Tibetans. The 2001 Report documented the use of forced

labor in a variety of settings, including with persons in

prison and with persons in re-education-through-labor

facilities. The State Department noted credible reports of

imprisonment, beatings and torture used against those who

refused to renounce the Dalai Lama. 2001 Report at 48; R.

at 234. The 2001 Report also corroborated Lhanzom’s claim

that her uncles, who were Tibetan lamas, would have been

subjected to especially harsh treatment by the government.

The 2001 Report thus corroborates much of Lhanzom’s

testimony.

The newest State Department Report on human rights in

China, issued in February 2005 (hereafter “2005 Report”),

confirms that China continues to persecute Tibetans. More

than 2000 Tibetans cross the border into Nepal each year,

although the Chinese government continues to try to

prevent Tibetans from leaving. The 2005 Report noted that,

in October 2003, for example, the Chinese government

executed a Tibetan who was forcibly returned to China from

Nepal, where he had been granted refugee status by the

United Nations High Commissioner for Refugees. 2005

Report at 35. In addition to the abuses of Tibetans detailed

in the 2001 Report on which Lhanzom relied, the 2005

Report has added extra-judicial killing to the list that

continues to include torture, arbitrary arrest, detention

without public trial and lengthy detention of Tibetans for

peacefully expressing political or religious views. 2005

Report at 54. “Tibetans repatriated to China from Nepal in

May 2003 reportedly suffered torture, including electric

shocks, exposure to cold, and severe beating, and were

forced to perform heavy physical labor.” 2005 Report at 57.
No. 04-2889 29

There were also reports that the Nepali government

cooperated with Chinese authorities to repatriate Tibetans

who crossed the border. 2005 Report at 57. We may take

judicial notice of this 2005 Report in support of the objective

reasonableness of Lhanzom’s fear of persecution on her

return to China. See Medhin v. Ashcroft, 350 F.3d 685, 690

(7th Cir. 2003) (court may take judicial notice of State

Department reports that are relevant to whether a petitioner’s fear of future persecution is objectively reasonable).

This 2005 Report certainly suggests that a Tibetan who

escaped to Nepal, and then to India, and subsequently to

the United States, and who publicly protested China’s

treatment of Tibetans, would have a reasonable fear of

persecution if she is forcibly repatriated to China.

We see nothing in the record that impugns Lhanzom’s

credibility. See Korniejew, 371 F.3d at 386-87 (criticizing

the increasing reliance by the BIA and by IJs upon perceived inconsistencies in testimony as the basis for adverse credibility determinations, even in cases where the

alleged discrepancies are minor or easily explained).

“Persecution means punishment or the infliction of harm for

political, religious, or other reasons that this country does

not recognize as legitimate.” Firmansjah, 424 F.3d at 605.

If Lhanzom is credible, the government conceded that she

would meet the standard for having suffered persecution,

creating a presumption that the persecution will continue

upon her return. Zheng, 409 F.3d at 809. See also Iao, 400

F.3d at 532-33 (noting similar persecution of practitioners

of Falun Gong in China). The government has not even

attempted to rebut that presumption. See Firmansjah, 424

F.3d at 605 (the government may rebut the presumption

that the applicant will be persecuted by demonstrating

either a fundamental change in circumstances or that the

applicant could avoid persecution by relocating to another

part of the proposed country of removal); Asani v. INS, 154

F.3d 719, 722 (7th Cir. 1998) (same). See also
30 No. 04-2889

Ghebremedhin v. Ashcroft, 385 F.3d 1116, 1120 (7th Cir.

2004) (where a country’s history of persecuting a particular

religious sect is well known and nothing in the record

demonstrates that the petitioner would not face the same

dangers if returned there, petitioner may be entitled to a

grant of the petition for review). We therefore GRANT the

petition for review of her withholding and CAT claims and

REMAND for further proceedings consistent with this

opinion. We DISMISS her petition for lack of jurisdiction to

the extent it asks us to review her claim for asylum.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-5-05