United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 12, 2007

Decided January 28, 2008

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 07-1317

SHIJUN LIU,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

No. A79-544-361

O R D E R

Shijun Liu applied for asylum, withholding of removal, and protection under the

Convention against Torture (“CAT”) based on religious persecution he claims to

have suffered as a Tibetan Buddhist in the People’s Republic of China. The IJ

discredited his testimony based on purported inconsistencies in the record. The BIA

affirmed, and Liu now petitions for review. We grant Liu’s petition for review because

substantial evidence does not support the adverse credibility finding, past persecution

determination, or the finding that Liu would not suffer future persecution.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 07-1317 Page 2

In April 2001, after overstaying his visa, Shijun Liu applied for asylum,

withholding of removal, and relief under the CAT based on his claim of fear of

persecution on account of his religion. In his application Liu explained that he

converted to Tibetan Buddhism after being treated by a doctor for altitude sickness on

a business trip to Tibet. After returning to his home in China, Liu continued to learn

more about Tibetan Buddhism and held gatherings in his home where his friends

would come to learn about Tibetan Buddhism and worship the Dalai Lama. 

In his application Liu contended that in November 2000, while praying silently

with a group of fellow worshipers in his home, police broke in and ordered the gathered

individuals to the police station. The police confiscated a videotape from Tibet and

other religious materials, including a statue of the Buddha. As Liu tried to protect the

statue, police beat him with an electric baton until he fell down, and then they forcibly

took him to the police station. At the police station, he was questioned about his

“illegal gatherings,” dealings with foreigners, worship of the Dalai Lama, and his

support of Tibetan independence. He said police officers kicked him and beat him

severely, threatening that he deserved “to be beaten to death,” and forcing him to stay

in a squatting position until he “confessed.” Police then removed him to a wet and

dirty cell for two weeks until a friend paid for his release. Upon Liu’s release, his

employer, the Dalian Tractor Factory, notified him that he was laid off, and in

February 2001, Liu fled to America on the advice of his family. Liu concluded his

application by stating that he had recently contacted his family in China and they

informed him that a letter from the Dalian Tractor Factory arrived that officially fired

him. His family further warned that the police continued to visit their family home

searching for Liu. He stated that he feared returning to China because he would “be

attacked” and lose his freedom. 

Prior to Liu’s asylum hearing in June 2006, both parties supplemented

the record with additional evidence. Liu submitted two medical records, dated

November 29, 2000, and December 6, 2000, which recorded Liu’s diagnosis of a

cerebral concussion with wounds on his back and chest that suggest he had been hit

with a blunt object approximately a half a month prior to the visit. Both records

concluded with the statement, as translated: “Hospitalization recommended.” He also

submitted a letter from his employer accusing him of spreading Tibetan independence

“illegally and widely” and organizing illegal gatherings. The letter bore the Dalian

Tractor Factory stamp and stated that Liu was officially fired. Liu also submitted

pictures of himself and fellow Tibetan Buddhists in America. 

The government supplemented the record with the 2005 International Religious

Freedom Report and Reports on Human Rights Practices from the Department of

State. These reports found that Tibetan Buddhism is not freely practiced in China and

that practitioners “were subject to government pressure and sometimes suffered

abuse.” Furthermore, the reports indicated that arbitrary arrest and detention of
No. 07-1317 Page 3

1

 Based on the conversion rate in November 2000, this would have been

approximately $12,080 in American currency. See International Monetary Fund,

http://www.imf.org/external/np/fin/data/rms_mth.aspx?SelectDate=2000-11-30&rep

ortType=REP (last visited Jan. 18, 2008).

Tibetan Buddhists practicing their religion remained a serious problem. The

government also submitted a copy of Liu’s passport, which showed an issue date of

November 23, 2000. 

At the hearing Liu testified consistently with his asylum application. He

clarified that, following his detention, he was not formally charged with any crime but

was required to go to the police station every week where the police would detain him.

He further testified that after he was released from police detention, he went to the

doctor and was hospitalized due to the extent of his injuries. 

On cross-examination the government attorney questioned Liu regarding the

supplemental documentation he provided. The government first asked why Liu waited

nearly four years to submit the documents. Liu testified that he was unable to get the

documents sooner because his family feared that Chinese government censors would

discover them if they were mailed, and therefore he was forced to wait until a friend

could bring them to America. Additionally, the government attorney pointed out that

Liu testified that he was fired immediately after he was released from detention, but

the letter from his employer officially firing him allegedly arrived almost three months

after his release. To this, Liu explained that he was told immediately after his

detention not to return to work and the letter represented the formal notification. The

government attorney also questioned Liu regarding his alleged hospitalization, to

which Liu consistently responded that he had been hospitalized on November 29, 2000,

for one week and was released on December 6, 2000. 

Finally, the government attorney cross-examined Liu regarding the date his

passport was issued. According to Liu, he applied for his passport after his detention,

which ended on November 29, 2000. When asked by the government attorney how this

was possible, since his passport was dated November 23, 2000, Liu responded that he

did not obtain the passport himself; rather he paid a friend 100,000 RMB1

 to fill out the

application and obtain the passport for him. Liu continued via the translator: “I don’t

know why there was a discrepancy on the date but I paid a friend or paid a person to

obtain the passport for me. I did not physically get the passport in my hands until

January when I signed the passport.” 

The IJ denied Liu’s request for asylum, withholding of removal, and relief under

the CAT. The IJ found that Liu’s account lacked credibility, identifying inconsistencies
No. 07-1317 Page 4

in Liu’s story. First, the IJ noted that Liu did not mention his week-long

hospitalization in his original asylum application, nor did he present hospital records

until nearly four years later. Second, the IJ questioned the validity of the records

based on the unlikelihood that a doctor would include a notation of “hospitalization

recommended” if the patient had already been hospitalized. Third, the IJ found

inconsistent Liu’s testimony that he was fired immediately following his detention and

his later assertion that the termination was not “official” until he received the letter

three months later. Finally, the IJ reasoned that inconsistences about when Liu

received his passport called “into doubt his entire story.” The IJ also found that Liu’s

petition could alternatively be denied because he had failed to establish past

persecution or submit evidence of his fear of future persecution. The IJ also reasoned

that because Liu had failed to establish eligibility for asylum, he also failed to meet the

higher standard required for withholding of removal or relief under the CAT. 

Liu appealed to the Board of Immigration Appeals. In his brief to the BIA, Liu

argued that the IJ’s findings were not supported by substantial evidence. The BIA

affirmed the IJ’s adverse credibility determination. In a one-paragraph decision, the

BIA agreed with the IJ that the following inconsistences established that Liu’s

testimony was not credible: (1) Liu’s failure to mention his hospitalization in his

original application, (2) discrepancies in Liu’s testimony regarding his one-week

hospitalization, (3) varying testimony regarding when Liu was fired from his work

unit, and (4) discrepancies between the date Liu decided to leave China and the

issuance date on his passport during the time of his detention. 

In his petition for review, Liu first argues that the BIA’s review of the IJ’s

decision violated his due process rights, but this argument lacks merit. Liu argues

generally that the BIA ignored relevant evidence, but never points to any specific

evidence that the BIA ignored. We have held that even a summary affirmance by the

BIA does not violate an alien’s due process right to review. See Qureshi v. Gonzales,

442 F.3d 985, 991 (7th Cir. 2006). Additionally, when analyzing claims of due process

regarding removal hearings, we have required aliens to show prejudice to prevail. See

Bejko v. Gonzales, 468 F.3d 482, 487 (7th Cir. 2006); Feto v. Gonzales, 433 F.3d 907,

912 (7th Cir. 2006). The BIA’s decision in this case included decidedly more analysis

than a summary affirmance, and Liu points to no evidence that the BIA ignored that

might have changed its decision. Therefore, Liu has failed to establish a due process

violation.

Liu also argues that the BIA’s adverse credibility determination is not supported

by substantial evidence. Where, as here, the BIA does not expressly adopt the IJ’s

findings but rather agrees with and approves the IJ’s reasoning that led to the

credibility finding, we review the BIA’s decision alone. See Moab v. Gonzales 500 F.3d

656, 659 (7th Cir. 2007). We review credibility determinations deferentially and will

uphold them unless the record compels a different conclusion. See Tarraf v. Gonzales,
No. 07-1317 Page 5

495 F.3d 525, 532 (7th Cir. 2007). In situations such as this, however, where an

adverse credibility finding is based entirely on inconsistencies with the documentary

evidence and not on the demeanor of the witness, “the reviewing court is in a better

position to decide whether the credibility determination was reasonable.” See Kadia

v. Gonzales, 501 F.3d 817, 820 (7th Cir. 2007). Because Liu petitioned for asylum in

2001, his case is not affected by the revised credibility standards of the REAL ID Act

of 2005, which went into effect on May 11, 2005. See 8 U.S.C. § 1158(b)(1)(B)(iii);

Diallo v. Gonzales, 439 F.3d 764, 766 n.l (7th Cir. 2006). 

The BIA identified four inconsistencies that led to its approval of the IJ’s adverse

credibility finding. But all four are inadequate to support the IJ’s determination. The

first issue identified by the BIA is Liu’s omission of his hospitalization from his original

asylum application, but that does not render his testimony per se incredible. We have

held that an asylum application need not be complete and may be supplemented by

testimony to add details or to explain any inconsistencies. See Tarraf, 495 F.3d at 532;

Kllokoqi v. Gonzales, 439 F.3d 336, 342 (7th Cir. 2005). In his original application, Liu

detailed the extent of his injuries and at his hearing he added that the injuries resulted

in hospitalization. This is not a situation where Liu told one story in his application

and a different story during his hearing. Cf. Singh v. Gonzales, 487 F.3d 1056, 1060

(7th Cir. 2007). Therefore, it was unreasonable for the IJ to base his adverse

credibility determination on this factor. 

Likewise, the BIA erroneously discredited the medical records based on their

notation, “hospitalization recommended.” The BIA assumed that if a person had

already been hospitalized, medical records releasing the patient would not include a

recommendation of hospitalization. But nothing in the record confirms this

assumption. See Jiang v. Gonzales, 485 F.3d 992, 996 (7th Cir. 2007) (holding that IJ

improperly discounted medical records “based on his own assumptions regarding what

information is included in Chinese hospital documents”). And we have held that

credibility determinations may not be based on “perceived common knowledge” as

opposed to record evidence. See Huang v. Gonzales, 403 F.3d 945, 949-50 (7th Cir.

2005). There are many reasons why a patient would leave a hospital against the

recommendation of further hospitalization, and the government never asked Liu why

he left. Additionally, the BIA failed to consider the potential hazards of translation,

making the BIA’s heavy reliance on this factor even less reasonable. See Jiang, 485

F.3d at 996 (noting that tone in hospital records that was unfamiliar to an American

IJ could be the product of poor translation). 

The BIA’s third basis for affirming the IJ’s adverse credibility

finding—inconsistencies in Liu’s testimony regarding when he was fired—is also

unavailing. Liu explained that although he was told not to return to work following

his release from detention, this decision was not permanent until he received the letter

from the Dalian Tractor Factory. Where inconsistences in testimony are easily
No. 07-1317 Page 6

explained, they are insufficient to form the basis of an adverse credibility finding. See

Giday v. Gonzales, 434 F.3d 543, 551 (7th Cir. 2006). Here, Liu’s explanation is both

plausible and sufficient to render this inconsistency inconsequential. What’s more, this

purported inconsistency cannot be used to make an adverse credibility finding because

it does not go to the heart of Liu’s asylum claim for the timing of Liu’s termination is

immaterial to the credibility of his claim of religious persecution. See Adekpe v.

Gonzales, 480 F.3d 525, 531 (7th Cir. 2007). 

The BIA’s final reason for affirming the IJ’s adverse credibility determination

related to the inconsistency between Liu’s testimony that he applied for a passport

after his release from detention and the date on the passport itself, which showed that

it was issued during his alleged detention. In a case very similar to this one, a Chinese

asylum-seeker presented a fraudulent passport that was purportedly issued during the

time the applicant was detained. Jiang, 485 F.3d at 996. We held that, in such a

situation, it was impermissible for the IJ to overlook the applicant’s explanation that

the issuance date was likely incorrect because the passport was forged. Id. 

At the hearing in this case, Liu responded “yes” to the IJ’s question regarding

whether he had a valid passport. However, Liu also repeatedly explained that he did

not procure the passport himself, but rather had paid a friend the equivalent of

$12,080 to procure it for him. This suggests that the passport was not obtained

through the proper legal channels and would explain the discrepancy in the date. As

in Jiang, the BIA inappropriately overlooked Liu’s explanation for the date

discrepancy. There is an unfortunate dearth of information available related to both

what constitutes a valid Chinese passport and the appropriate weight that should be

given to this type of evidence. One fairly recent opinion noted that Chinese citizens

wishing to leave the country must obtain a passport and an exit permit, see Lian v.

Ashcroft, 379 F.3d 457, 460 (7th Cir. 2004), but there is no evidence that Liu had an

exit permit. 

Whether the BIA properly discredited Liu’s testimony on the passport issue is

extremely close. On the one hand there is Liu’s one-word affirmative answer that the

passport was valid, but on the other hand is considerable evidence that the passport

was procured though a bribe. However, we need not decide the issue because even if

the BIA reasonably concluded that the passport was valid, this single inconsistency is

insufficient to support the BIA’s adverse credibility determination. See Dong v.

Gonzales, 421 F.3d 573, 579 (7th Cir. 2005) (concluding that inconsistent statements

can be valid reasons for discrediting alien, but alone are too weak to save the IJ’s

otherwise undermined adverse credibility finding); Georgis v. Ashcroft, 328 F.3d 962,

970 (7th Cir. 2003) (refusing to defer to the IJ’s adverse credibility determination

where five out of six of the IJ’s reasons were unsupported). Three of the BIA’s four

asserted reasons for discrediting Liu’s testimony of persecution have been firmly

undermined, and the fourth reason is a weak inconsistency at best. The evidence,
No. 07-1317 Page 7

therefore, is insufficient to support the BIA’s conclusion that the IJ’s adverse

credibility finding was correct.

Although not addressed by the BIA, the IJ listed two alternative grounds to deny

Liu’s applications—that Liu’s testimony, even if credited, did not establish that he

suffered past persecution or that he had a well-founded fear of future persecution. We

have defined persecution as “punishment or the infliction of harm for political,

religious, or other reasons that this country does not recognize as legitimate.” See Boci

v. Gonzales, 473 F.3d 762, 766 (7th Cir. 2007) (citation and quotations omitted). We

have held that “detention, arrest, interrogation, prosecution, imprisonment, illegal

searches, confiscation, of property, surveillance, beatings, or torture may be sufficient

to establish persecution,” but the harm must rise above “mere harassment.” See

Soumahoro v. Gonzales, 415 F.3d 732, 737 (7th Cir. 2005) (citation and internal

quotation marks omitted).

Here the IJ stated that it did not believe that Liu’s “one detention, even if true,

rises to the level of severity enough to constitute past persecution.” This assessment

was in error. The IJ failed to fully address the mistreatment that Liu suffered as a

whole, as we have held the IJ is required to do. See BinRashed v. Gonzales, 502 F.3d

666, 671 (7th Cir. 2007). Liu testified that the police illegally entered his home,

confiscated and broke religious objects, beat him when he tried to protect those objects,

took him to the police station where he was again beaten repeatedly with an electric

baton, slammed his head against the wall, and limited his freedom by requiring him

to check-in weekly with the police. See Jiang, 485 F.3d at 997 (holding alien suffered

past persecution where police beat him, illegally searched his home, confiscated

religious items, prohibited him from attending church, and required him to check in

weekly). As a result of these beatings Liu suffered a concussion and was hospitalized

for a week. Finally, according to Liu, after being released from detention he was no

longer allowed to gather with fellow Tibetan Buddhists or practice his religion freely.

Considered as a whole, this is sufficient to constitute past persecution. See, e.g.,

Tchemkou v. Gonzales, 495 F.3d 785, 793 (7th Cir. 2007) (holding that two beatings

resulting in hospitalizations constituted past persecution); Kantoni v. Gonzales, 461

F.3d 894, 898 (7th Cir. 2006) (holding that “credible threat that causes a person to

abandon lawful political or religious associations or beliefs is persecution”); Capric v.

Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004) (concluding that persecution can include

“confiscation of property, surveillance, beatings, torture, [and] behavior that threatens

the same.”) (citations and quotations omitted).

The IJ also determined that Liu failed to establish a reasonable fear of future

persecution. This conclusion is incorrect because it is premised upon the notion that

Liu did not suffer past persecution. Where an asylum applicant has shown that he

suffered past persecution, a rebuttable presumption of future persecution arises. See

Gomes v. Gonzales, 473 F.3d 746, 753 (7th Cir. 2007). Therefore, the IJ erred when it
No. 07-1317 Page 8

stated that Liu bore the burden of establishing future persecution. Additionally, the

IJ erroneously stated that nothing in the background reports on China suggested that

Liu had a reasonable fear of future persecution. However, as previously noted, the

State Department reports repeatedly discuss China’s persecution of Tibetan Buddhists.

This, combined with the fact that Liu testified that the police had visited his family

searching for him, suggests that Liu has a reasonable fear of future persecution. See

e.g., BinRashed, 502 F.3d at 672-73 (finding that where applicant was wanted by police

and State Department reports corroborated allegations of persecution, case should be

remanded to IJ for further findings).

Accordingly, we GRANT Liu’s petition for review.