08-2998-ag 

Su Chun Hu v. Eric H. Holder, Jr., United States Attorney 

General 

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UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

August Term, 2008 

(Argued: June 23, 2009 Decided: September 3, 2009) 

Docket No. 08-2998-ag 

 

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Su Chun Hu, 

16 Petitioner, 

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 -v.- 

Eric H. Holder, Jr.,* United States Attorney General, 

 

20 Respondent. 

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 Before: B. D. PARKER and WESLEY, Circuit Judges, and 

CEDARBAUM, 

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District Judge.** 23 

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 Petition for review of an order of the Board of Immigration 

Appeals affirming the Immigration Judge’s decision denying 

*

 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 

Attorney General Eric H. Holder, Jr., is automatically 

substituted for former Attorney General Michael B. Mukasey as 

respondent in this case.

** The Honorable Miriam Goldman Cedarbaum, United States District 

Judge for the Southern District of New York, sitting by 

designation.
Petitioner asylum, withholding of removal, and relief under the 

Convention Against Torture, and ordering Petitioner’s removal. 

The petition for review is GRANTED, the order of the Board of 

Immigration Appeals is VACATED, and the case is REMANDED. 

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Gary J. Yerman, Esq. 

New York, NY 

8 for Petitioner

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Lynda A. Do, Esq. 

Office of Immigration Litigation 

Civil Division, United States 

Department of Justice 

Washington, D.C. 

15 for Respondent

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PER CURIAM: 

 

 Su Chun Hu petitions for review of a May 27, 2008 order of 

the Board of Immigration Appeals (“BIA”) dismissing her appeal 

from the Immigration Judge’s (“IJ”) decision of July 6, 2006. 

Hu argues that the IJ’s adverse credibility determination is not 

supported by substantial evidence. For the following reasons, 

her petition for review is GRANTED, the order of the BIA is 

VACATED and the case is REMANDED for further proceedings. 

28 I. Background

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Su Chun Hu is a native and citizen of the People’s Republic 

of China. She seeks asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”) on the ground that 

she has suffered past persecution and has a well-founded fear of 

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future persecution because of China’s coercive family planning 

policy.

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 At a July 9, 2002 hearing before Immigration Judge 

Sandy Hom, Hu testified that she was forced to undergo an 

abortion on June 9, 2000. She stated that when she did not 

appear at a clinic to have an intrauterine device inserted 

several months after the forced abortion, her mother-in-law was 

taken as a hostage and released only after Hu and her husband Yu 

Ye posted an RMB 20,000 bond. She fears that she will be 

“beaten and incarcerated” should she return to China, and that 

she will also be subject to China’s coercive family planning 

policy. 

Hu applied for asylum upon her initial arrival in the 

United States on July 31, 2001. Removal proceedings were 

started against her on August 9, 2001. 

In an oral decision at the July 9, 2002 hearing, the IJ 

stated that Hu’s testimony was not credible because of certain 

inconsistencies in her testimony as well as conflicts between 

her testimony and other evidence in the record. It should be 

noted that Judge Hom did not comment on Hu’s demeanor in his 

2002 decision. Based on his adverse credibility determination, 

the IJ denied Hu asylum, withholding of removal, and relief 

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 8 U.S.C. § 1101(a)(42) provides that persecution on account of 

“political opinion” includes being subject to a forced abortion 

or sterilization, or persecution for resistance to a “coercive 

population control program.” 

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under the CAT, and ordered her removal. Hu appealed to the BIA, 

which affirmed without opinion on November 20, 2003. 

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Chun Hu, No. A 79 414 877 (B.I.A. Nov. 20, 2003) aff’g No. A 79 

414 877 (Immig. Ct. N.Y. City July 9, 2002). Hu filed a 

petition for review in this court. 

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The November 20, 2003 order of the BIA was vacated and 

remanded to the IJ on the ground that the July 9, 2002 order of 

the IJ was based on “unspecified inconsistencies, flawed 

9 reasoning and misunderstanding of evidence.” Su Chun Hu v. 

10 Gonzales, 160 Fed. App’x 98, 101-02 (2d Cir. 2005). 

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On remand, no further testimony was taken. On July 6, 

2006, Judge Hom issued a written decision in which he “attempted 

to outline the specific inconsistencies and conflicts that arose 

in the respondent’s presentation.” In addition to pointing out 

inconsistencies and conflicts in Hu’s evidence, the IJ 

repeatedly noted that Hu’s demeanor undermined her credibility. 

For example, he noted that when Hu was asked to explain an 

apparent inconsistency, she responded with testimony that was 

“further confusing and appeared to the court to be an obvious 

attempt to side-step the issue with non-responsive answers.” 

 The IJ also found that Hu’s testimony about her forced 

abortion was “insufficient and lacking” based on the “demeanor 

and the timbre of her testimony” which was “suggestive of 

someone who has never experienced an abortion procedure and was 

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more akin to a routine gynecological ‘pap smear’ check-up, 

rather than a life-altering traumatic experience.” 

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Based on his adverse credibility determination, the IJ 

concluded that Hu had not met her burden of proof for asylum, 

and so she could not meet the “higher standard of proof” 

required for withholding of removal or relief under the CAT. He 

again denied Hu all relief and ordered her removal. 

8 The BIA affirmed Hu’s administrative appeal. In Re Su Chun 

Hu, No. A 79 414 877 (B.I.A. May 27, 2008), aff’g No. A 79 414 

877 (Immig. Ct. N.Y. City July 6, 2006). Hu filed a timely 

petition for review by this court on June 18, 2008. 

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12 II. Analysis

13 When the BIA adopts and supplements the IJ’s opinion, we 

14 review the IJ’s opinion as supplemented by the BIA. Yan Chen v. 

15 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 

16 Questions of law and the application of law to undisputed 

fact are reviewed de novo. Bah v. Mukasey, 529 F.3d 99, 110 (2d 

Cir. 2008). We review the factual findings of the IJ and BIA 

under the “substantial evidence” standard which treats them as 

“conclusive unless any reasonable adjudicator would be compelled 

to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); 

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Bah, 

529 F.3d at 110. However, the “substantial evidence” standard 

requires that the factual findings be supported by “reasonable, 

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1 substantial and probative evidence in the record.” Lin Zhong v. 

2 U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir. 2006). 

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We accord “particular deference” in applying the 

substantial evidence standard to an IJ’s credibility 

determination, but will remand if that determination is based on 

6 flawed reasoning or a flawed fact-finding process. Manzur v. 

U.S. Dep’t of Homeland Security, 494 F.3d 281, 289 (2d Cir. 

2007); 

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Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 

(2d Cir. 2005). 

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 The IJ’s adverse credibility determination is not supported 

by substantial evidence because it relied on a flawed factfinding process, impermissible speculation, and flawed 

reasoning. Hu testified on July 9, 2002. The IJ’s adverse 

credibility determination contained in his 2002 contemporaneous 

oral decision relied solely on inconsistencies in her evidence; 

Hu’s demeanor was never mentioned. In the nearly four years 

between the July 9, 2002 testimony and the written decision of 

July 6, 2006, Hu never again testified before Judge Hom. His 

only opportunities to observe Hu between July 2002 and July 2006 

were at two conferences in May and June of 2006. At the May 5 

conference, the record indicates that the IJ was unsure whether 

the petitioner was an adult or a child. In re Su Chun Hu, Tr. 

Of June 16, 2006 (Immigration Judge Hom: “Now is the respondent 

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the little girl or the mother?”) The record of the June 16, 

2006 conference does not show any statements by Hu. 

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 Nevertheless, the IJ’s written decision of July 6, 2006 

contains detailed analyses of Hu’s credibility based on her 

demeanor during her testimony at the 2002 hearing. No evidence 

in the record suggests that these analyses are based on anything 

but the IJ’s recollection of Hu’s demeanor when she testified 

nearly four years before. We afford particular deference to the 

IJ’s assessment of demeanor because the IJ has the unique 

ability to observe the petitioner’s demeanor while she 

testifies. See Tu Lin v. Gonzales, 446 F.3d 395, 400-01 (2d 

Cir. 2006). A four-year-old memory of the witness’s demeanor is 

not entitled to the same deference. 

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 We are well aware that IJs must manage an onerous caseload. 

According to Syracuse University’s Transactional Records Access 

Clearinghouse (“TRAC”), Immigration Judge Hom decided 1,377 

asylum claims on the merits between 2004 and 2009. The TRAC 

report shows that fifty-two percent of those asylum-seekers were 

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Judge Sandy K. Hom, Fiscal Years 2004-2009, available at http:// 

trac.syr.edu/immigration/reports/judgereports/00146NYC/ 

index.html (last accessed July 7, 2009). 

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In the time between Hu’s 2002 testimony and the IJ’s 2006 

decision, the IJ’s memory of Hu’s testimony may have been 

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affected by the many similarly-situated asylum-seekers who 

testified before him. A reasonable adjudicator would not rely 

on his four year old memory of Hu’s facial expression when 

evaluating her credibility four years later. Therefore, the IJ’s 

evaluation of Hu’s demeanor cannot be substantial evidence 

supporting his adverse credibility determination. 

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Cf. 8 U.S.C. 

§ 1252(b)(4)(B); 

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7 Bah, 529 F.3d at 110. 

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 The IJ’s opinion regarding Hu’s testimony about her forced 

abortion is also based on impermissible speculation and is not 

substantial evidence supporting his adverse credibility 

determination. 

At the outset, the IJ’s finding regarding Hu’s forced 

abortion suffers from the same flaw identified above to the 

extent that it relies on his memory of Hu’s demeanor during her 

July 2002 testimony. More troubling is his conclusion that Hu’s 

demeanor was that of someone who had only experienced a “routine 

gynecological ‘pap smear’ [...] rather than a life-altering 

traumatic experience” such as an abortion. In Re Su Chun Hu, 

No. A 79 414 877 (Immmig. Ct. N.Y. City July 6, 2006.) The IJ 

provided no basis for his assumptions about how someone who had 

had a forced abortion would testify. His conclusion based on 

those unexplained assumptions is therefore impermissible 

speculation. 

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(2d Cir. 2004) (“we will reverse where the adverse credibility 

determination is based upon speculation”). 

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Two of the inconsistencies upon which the IJ relied in 

reaching his adverse credibility determination are based on 

flawed reasoning or misstatements of the record. First, the IJ 

found that Hu was not consistent about the date on which her 

mother-in-law was taken into custody. As we noted in the 

December 23, 2005 Summary Order, Hu consistently testified that 

her mother-in-law was taken into custody on September 22 or 23, 

2000. Hu v. Gonzales, 160 Fed. App’x at 101. Although she did, 

at one point, say “November 9, Year 2000” in response to the 

question “and when had you left the house?” Hu further 

testified that “at that time I was hiding at my aunt’s house in 

Shanghai.” It is clear that Hu was not answering the question 

“when did you leave your own house to go into hiding” since it 

would be illogical to answer that question with a date on which, 

by her own testimony, she had already left her home and gone 

into hiding. Furthermore, contrary to the IJ’s written 

decision, Hu never stated that her husband went into hiding on 

November 9, 2000. 

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 Second, the IJ stated that Hu testified that she was 

first fined when she went to register her daughter in August 

2000. According to the July 9, 2002 transcript, when asked 

“when were you first notified about any kind of fine,” Hu 

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responded “after my daughter was born.” She later stated “first 

fine was after my daughter was born but they did not notify us 

with the fine. It was until register my daughter’s household.” 

When asked to explain the inconsistency, she said “when I went 

to register the household, they demanded for the fine.” This 

testimony is generally consistent with Yu Ye’s letter that 

states that they were fined after their daughter’s birth, but 

did not pay the fine until after their daughter’s registration 

was rejected because the fine had not been paid. Since the 

record indicates pervasive problems in translation, a reasonable 

fact-finder could not conclude that Hu’s credibility was 

undermined solely by the minor inconsistencies remaining in her 

testimony about whether her mother-in-law was taken as a hostage 

on September 22 or 23 of 2000 or when she was notified about the 

RMB 2,800 fine. 

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See Biao Yang v. Gonzales, 496 F.3d 268, 272 

(2d Cir. 2007) (

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citing Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 

2000)). 

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18 III. Conclusion

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Immigration Judge Hom’s adverse credibility determination 

cannot stand because it is not supported by “reasonable, 

substantial, and probative evidence in the record.” Lin Zhong, 

480 F.3d at 116. The evidence in the record is also not “so 

overwhelming” that we could confidently predict that without the 

errors we identified, the same result would be reached on 

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remand. See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 

2008); 

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Cao He Lin, 428 F.3d at 406. However, we cannot conclude 

that a reasonable fact finder would be compelled to find that Hu 

has made the requisite showing for asylum, withholding of 

removal, or relief under the CAT. Hu’s petition for review is 

therefore GRANTED, the decision of the BIA is VACATED, and the 

case is REMANDED for further proceedings consistent with this 

opinion. We recommend that the BIA remand the case for hearing 

before a different IJ. 

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