Judge STRAUB dissents in a separate opinion.
RAGGI, Circuit Judge.
Zhou Yun Zhang, a citizen of the People's Republic of China, petitions for review of the June 3, 2002 decision of the Board of Immigration Appeals ("BIA" or "Board") rejecting his claims for asylum and withholding of deportation.
A. Zhang's Illegal Entry
On January 21, 1993, Zhou Yun Zhang attempted to enter the United States at John F. Kennedy International Airport.
B. Zhang's Initial Application for Asylum
On April 15, 1993, approximately one month before his scheduled hearing, Zhang filed a pro se application for asylum and withholding of deportation, asserting that he feared forcible sterilization by the Chinese government for his past violation of China's family planning policies. He stated that he and his wife had two children: a daughter born in 1988, and a son born in 1992. After the birth of the Zhangs' son, family planning officials fined the couple for exceeding China's one-child-per-family limit and gave them a deadline to submit to sterilization. Zhang stated that he fled China to avoid forcible sterilization.
Despite filing this application for relief from exclusion, Zhang failed to appear for the scheduled May 11, 1993 hearing, prompting the Immigration and Naturalization Service ("INS") to close his asylum/withholding application without prejudice. Zhang's whereabouts were apparently unknown to the INS for approximately five years when, on April 8, 1998, Zhang, through counsel, requested to have his application reopened. The INS agreed and scheduled his exclusion hearing for July 1, 1998.
C. Zhang's 1998 Amended Asylum Application
In anticipation of his July 1998 hearing, Zhang filed an amendment to his initial asylum/withholding application. In that June 24, 1998 amendment, Zhang reiterated that he fled China for fear of forcible sterilization and added that, since his departure from China, government officials had forcibly sterilized his wife.
D. The Hearing Before the Immigration Judge
1. Zhang's Testimony and Evidence
On July 1, 1998, a hearing was held before an IJ on the excludability charges
As the sole hearing witness, Zhang, testifying through an interpreter in the Foo Chow dialect, expanded on the events outlined in his 1993 asylum application and the 1998 amendment to that application. He testified that he fled China shortly after the birth of his second child because the government had notified him to report for sterilization. Zhang stated that sometime after his arrival in the United States, he spoke by telephone with his wife in China, who reported that she had been forcibly sterilized. Although Zhang, on occasion, testified quite clearly that the date of this procedure was June 5, 1993, other parts of his testimony suggested that the alleged sterilization had occurred earlier.
Notably, in first recounting his telephone conversation with his wife, Zhang reported her telling him that "not long after the — giving birth of the baby" (the birth having taken place on December 13, 1992) five or six people, some of whom were government officials, had come to the house and told Zhang's wife she would have to be sterilized. Hearing Tr. at 16. When his wife asked the officials for more time because she was still weak from childbirth, they purportedly refused her request and insisted that the procedure take place that day. The IJ asked a series of questions to clarify the date of this conversation between Zhang and his wife as it pertained to when the alleged sterilization had occurred. Zhang replied that the conversation had occurred approximately one month after his arrival in the United States. When the IJ asked if this meant the conversation had taken place in February 1993, Zhang initially replied affirmatively. Later, however, he placed the conversation sometime in July 1993, consistent with the June 5, 1993 date that was reflected on a sterilization certificate offered in evidence.
In addition to this sterilization certificate, Zhang offered into evidence documents that he testified were his notarial birth certificate, his marriage certificate, a copy of his family's household register, issued on October 27, 1997, and a receipt for the cash fine paid by his wife after Zhang's departure from China, dated May 12, 1993. Zhang testified that he had asked his wife to send these documents from China and that he had received them on June 20, 1998, shortly before the hearing. Zhang also submitted a studio photograph of a woman and two children, whom he identified as his wife and children. He testified that the photograph had been sent to him sometime in 1996.
2. The Immigration Judge's Decision
At the conclusion of the hearing, the IJ rendered a detailed oral decision denying Zhang's asylum and withholding application and ordering his exclusion and deportation. In so ruling, the IJ identified Zhang's credibility as the central factor in evaluating his persecution claim. The IJ observed that in some cases, the only available evidence to support an applicant's subjective fear of persecution may be his own testimony, and he correctly acknowledged that such evidence can suffice to carry an applicant's burden "where the testimony is believable, consistent and sufficiently detailed to provide a plausible and coherent account of the basis for the applicant's fears." In re Zhang, unpublished decision at 4 (Immig.Ct. July 1, 1998) (hereinafter "IJ Decision"); see Diallo v.
The court further noted that it gave little weight to Zhang's supporting documentary evidence because it either conflicted with aspects of his own testimony, as in the case of the sterilization certificate, or was not contemporaneous. The IJ suggested that copies of the children's birth certificates or photographs showing Zhang with his family in China would have been more probative of his claimed family relationship than a family register prepared or photograph taken after his departure. The IJ also noted that Zhang's documentary corroboration did not include affidavits from persons with direct knowledge of the events and circumstances giving rise to his claim, such as his wife, certainly "the best person to offer information" regarding the alleged forcible sterilization. Id.
E. The BIA Decision
Proceeding pro se, Zhang challenged the IJ's decision to the BIA, which dismissed his appeal on June 3, 2002, holding that Zhang had not adduced sufficient credible evidence to meet his burden of proof regarding eligibility for asylum or withholding of deportation. Specifically, the Board concluded that "important discrepancies" in the record identified by the IJ "are indicative of an overall lack of veracity" on Zhang's part. BIA Decision at 1. Noting that the IJ had also highlighted Zhang's failure to produce supporting documentation for his claims, the BIA specifically reiterated that in cases where an applicant's testimony may be the only evidence available to support an asylum claim, such testimony can suffice if it is "believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his alleged fear." Id. at 2 (citing Diallo v. INS, 232 F.3d at 279). That, however, was not this case. The BIA agreed with the IJ that Zhang had "not presented consistent, detailed or credible testimony." Id. Thus, the BIA concluded, "[w]e simply cannot find the testimony, of limited credibility and lacking in detail, combined with the few documents, provide[s] sufficient evidence to meet the overall burden of proof." Id.
This petition for review followed.
A. Eligibility for Asylum and Withholding of Removal
In a world inhabited by more than six billion people, most of whom live in societies that we in the United States would consider oppressive for a variety of reasons, it is hardly surprising that thousands of refugees continue to present themselves at our borders each year seeking asylum. To qualify for asylum under the Immigration and Nationality Act ("INA"), a refugee must demonstrate past persecution or a well-founded fear of future persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42); see 8 U.S.C. § 1158(a) (1993) (codified at 8 U.S.C. § 1158(b)(1), as of April 1, 1997); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003). Even if an applicant establishes his eligibility for asylum, however, the Attorney General retains discretion
A claim for withholding of deportation is factually related to an asylum claim, but the applicant bears a heavier burden of proof to secure the former relief. He must demonstrate that, if returned to his country, his life or freedom would in fact be threatened on one of the protected refugee grounds. See 8 U.S.C. § 1253(h)(1) (1993) (codified at 8 U.S.C. § 1231(b)(3)(A), as of April 1, 1997). If the applicant carries this burden, however, the Attorney General is obliged to grant the relief sought. See Ramsameachire v. Ashcroft, 357 F.3d at 178. Because the two forms of relief are factually related but with a heavier burden for withholding, it follows that an applicant who fails to establish his eligibility for asylum necessarily fails to establish eligibility for withholding. See id. at 178, 183; see also Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999). That is Zhang's case; accordingly, our discussion will focus on his claim for asylum.
Because refugees frequently leave their native countries under urgent circumstances, the law recognizes that in some asylum cases, the only evidence of persecution an applicant may be able to offer will be his own testimony. Accordingly, such testimony, if credible, may be sufficient to sustain the burden of proof. See 8 C.F.R. § 208.13(a); see also Diallo v. INS, 232 F.3d at 285 (recognizing that "consistent, detailed, and credible testimony may be sufficient to carry the alien's burden"). Nevertheless, where the circumstances indicate that an applicant has, or with reasonable effort could gain, access to relevant corroborating evidence, his failure to produce such evidence in support of his claim is a factor that may be weighed in considering whether he has satisfied the burden of proof. See Diallo v. INS, 232 F.3d at 285 (holding that "evidence corroborating his story, or an explanation for its absence, may be required where it would reasonably be expected"); see also Jin Shui Qiu v. Ashcroft, 329 F.3d at 153 (noting that rejection of asylum claim for lack of corroboration requires IJ and BIA (1) to identify particular corroborating evidence that is lacking, and (2) to show that such evidence was reasonably available to the applicant).
B. Asylum Claims Based on a Spouse's Forcible Abortion or Sterilization
In 1996, Congress extended the definition of political refugee, for purposes of asylum and withholding claims, to persons subjected to forced abortions or sterilizations. See IIRIRA § 601(a)(1), 110 Stat. at 3009-689 (amending 8 U.S.C. § 1101(a)(42));
This expansion of the concept of "refugee," coupled with the law's recognition that some asylum claims cannot be corroborated, presents significant challenges in distinguishing valid from invalid claims of persecution based on China's coercive population control policies.
Further complicating agency review of such claims is the reality that large numbers of Chinese males annually flee their country in search of better economic opportunity. See, e.g., Elisabeth Rosenthal, Chinese Town's Main Export: Its Young Men, N.Y. Times, June 26, 2000, at A1 (reporting that 80% of the male population between ages 20 and 40 had left the Chinese village of Ting Jiang over a ten-year period). This economic motivation is certainly understandable, indeed, historic, and the men's strong determination is evidenced by the high costs many pay, both in terms of money and lives. See id. (reporting that human smugglers are frequently paid as much as $70,000 per person to make travel arrangements out of China);
However difficult the problems of identifying legitimate spousal persecution claims, we are obliged to defer to the BIA's interpretation of § 1101(a)(42). See Diallo v. INS, 232 F.3d at 285 (noting that pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), federal courts accord substantial deference to the BIA's interpretations of the statutes and regulations that it administers). Thus, we must apply the same substantial evidence standard of review to spousal persecution claims that we apply to direct persecution claims.
C. Standard of Review
In reviewing asylum determinations, we defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence. See Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam). Under this standard, "we will not disturb a factual finding if it is supported by `reasonable, substantial, and probative' evidence in the record when considered as a whole." Id. (quoting Diallo v. INS, 232 F.3d at 287). Indeed, we must uphold an administrative finding of fact unless we conclude that a reasonable adjudicator would be compelled to conclude to the contrary.
When a factual challenge pertains to a credibility finding made by an IJ and adopted by the BIA, we afford "particular deference" in applying the substantial evidence standard, Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997); see also Jin Shui Qiu v. Ashcroft, 329 F.3d at 146 n. 2, mindful that the law must entrust some official with responsibility to hear an applicant's asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant. A fact-finder who assesses testimony together with witness demeanor is in the best position to discern, often at a glance, whether a question that may appear poorly worded on a printed page was, in fact, confusing or well understood by those who heard it; whether a witness who hesitated in a response was nevertheless attempting truthfully to recount what he recalled of key events or struggling to remember the lines of a carefully crafted "script"; and whether inconsistent responses are the product of innocent error or intentional falsehood. Reviewing courts have long recognized, as Judge Frank observed, that "`a witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favorable impression.'" Arnstein v. Porter, 154 F.2d 464, 470 (2d Cir.1946) (quoting Untermeyer v. Freund, 37 F. 342, 343 (C.C.S.D.N.Y.1889)), abrogated on other grounds, as recognized in Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319 (2d Cir.1975). This is because a cold transcript contains only "`the dead body of the evidence, without its spirit.'" Id. (quoting Sir John Coleridge in Regina v. Bertrand, L.R. 1 P.C. 520, 535 (1867)). It cannot reveal "`the look or manner of the witness: his hesitation, his doubts, his variations of language, his confidence or
It is in this context that our statement in Secaida-Rosales v. INS, that an IJ's adverse credibility finding "constitutes the beginning not the end of our inquiry," 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted), must be understood. Precisely because a reviewing court cannot glean from a hearing record the insights necessary to duplicate the fact-finder's assessment of credibility, what we "begin" is not a de novo review of credibility, but an "exceedingly narrow" inquiry, Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (internal quotation marks omitted), to ensure that the IJ's conclusions were not reached arbitrarily or capriciously, see Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d at 86. Toward this end, we look to see if the IJ has provided "specific, cogent" reasons for the adverse credibility finding and whether those reasons bear a "legitimate nexus" to the finding. Secaida-Rosales v. INS, 331 F.3d at 307 (internal quotation marks omitted); see also Ramsameachire v. Ashcroft, 357 F.3d at 178. In short, our review is meant to ensure that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.
Where the IJ's adverse credibility finding is based on specific examples in the record of "`inconsistent statements'" by the asylum applicant about matters material to his claim of persecution, or on "`contradictory evidence'" or "`inherently improbable testimony'" regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise. Diallo v. INS, 232 F.3d at 288 (quoting In re S-M-J-, 1997 WL 80984, at *729 (B.I.A. Jan. 31, 1997)). In such circumstances, the court may not itself hypothesize excuses for the inconsistencies, nor may it justify the contradictions or explain away the improbabilities. Its limited power of review will not permit it to "reverse the BIA simply because [it] disagree[s] with its evaluation of the facts." Jin Shui Qiu v. Ashcroft, 329 F.3d at 149 (internal quotation marks omitted).
D. The Record in Zhang's Case
1. Inconsistent Testimony as a Basis for Finding Zhang Not Credible
Applying these principles to Zhang's case, we conclude that the IJ's adverse credibility finding, reiterated by the BIA, is supported by substantial evidence. Certainly, we cannot conclude that no reasonable fact-finder could have failed to credit his persecution claim. See Diallo v. INS, 232 F.3d at 287.
As Zhang himself acknowledges, in assessing credibility, the IJ apparently excused numerous inconsistencies in the record that might be attributable to typographical or translation errors.
The inconsistencies referenced by the BIA are apparent on the record. In response to questions posed on direct examination, Zhang testified that his wife was sterilized approximately one month after the birth of his second child, which would have dated the sterilization sometime in January 1993. At the same time, he stated that the date of sterilization was much later, on June 5, 1993.
Hearing Tr. at 11-12.
Later on direct examination, in recounting the circumstances under which Chinese officials required his wife's sterilization, Zhang again testified in a way that suggested that the forcible procedure occurred relatively soon after the December 1992 birth of his second child. He stated that his wife was confronted by a number of Chinese officials "not long after the — giving birth of the baby," but because "her health was very weak," she asked for more time, and the officials refused, telling her, "No, there's no[ ] choice. You have to go today." Id. at 16.
Zhang does not dispute that his wife's purported sterilization was critical to his asylum claim and that it was reasonable to expect him to recall the time and circumstances under which he learned of this event. Instead, he argues that his testimonial discrepancies are less indicative of his lack of credibility than of incompetent interpretation and his attorney's unfamiliarity with the case. This argument, however, is entirely speculative and without support in the record. In any event, Zhang must do more than offer a "plausible" explanation for his inconsistent statements to secure relief; "he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony." Wu Biao Chen v. INS, 344 F.3d at 275.
In urging such a conclusion, Zhang asserts that the IJ acted too hastily in assuming that the cited inconsistencies evidenced a lack of credibility. The record is to the contrary. After counsel for both sides concluded their examination, the IJ endeavored to clarify the ambiguity created by Zhang's direct testimony regarding when his wife had purportedly been sterilized relative to when he claimed first to have learned of the event. Nevertheless, Zhang continued to provide inconsistent responses. He initially stated quite clearly that he spoke with his wife in February 1993, which would necessarily have placed the alleged sterilization before that date.
Hearing Tr. at 37-39. In response to further questioning, however, Zhang stated that his wife had not yet been sterilized at the time of the February conversation. He reiterated that the procedure occurred months later, on June 5, 1993.
Id. at 39-40. When Zhang's counsel then asked his client to approximate the month and year when his wife initially told him of her sterilization, Zhang stated, for the first time, that their conversation took place sometime in July 1993. See id. at 40.
The cited inconsistencies were not the sort of "minor and isolated" discrepancies so plainly immaterial to a persecution claim that no reasonable fact-finder could use them as a basis for an adverse credibility ruling. Diallo v. INS, 232 F.3d at 288. The purported sterilization of his wife was, presumably, an event of major importance to Zhang, not only to his persecution claim but also to his marriage. A fact-finder might reasonably expect him to have had a clear recollection of when and how he learned such distressing information. Thus, the fact that Zhang repeatedly testified that his wife told him of her sterilization in February 1993, while he otherwise dated the procedure months later, in June 1993, rendered his account of key events incoherent, raising legitimate concerns about his veracity. Moreover, without having seen Zhang testify, we cannot conclude that such concerns were necessarily dispelled by Zhang's belated claim that his wife first told him of her sterilization in July 1993.
As already noted, it is not our task to see if Zhang's inconsistent statements can somehow be reconciled. Neither do we weigh the inconsistencies for ourselves to see if we would reach the same credibility conclusions as the IJ, who actually observed Zhang testify, or the BIA. See Jin Shui Qiu v. Ashcroft, 329 F.3d at 149. We consider only whether, on the evidence adduced, a reasonable adjudicator would be compelled to conclude, contrary to the IJ and BIA, that Zhang provided a credible account of persecution. See Wu Biao Chen v. INS, 344 F.3d at 275. We hold that the record does not compel such a conclusion. The cited inconsistencies qualify as "specific, cogent" reasons, bearing a "legitimate nexus" to the IJ/BIA findings that Zhang was not credible in recounting the alleged forcible sterilization of his spouse. Secaida-Rosales v. INS, 331 F.3d
In sum, we conclude that the IJ and BIA findings that Zhang was not credible are substantially supported by the record.
2. Lack of Corroborative Evidence
Zhang submits that the IJ and BIA erroneously denied him asylum based on his failure to produce certain corroborative documents about his wife and family without adequately assessing whether the materials were reasonably available to him. See Jin Shui Qiu v. Ashcroft, 329 F.3d at 153 (observing that to deny asylum "for want of sufficient corroboration, the adjudicator must (a) identify the particular pieces of missing, relevant documentation, and (b) show that the documentation at issue was reasonably available to the petitioner"); see also Diallo v. INS, 232 F.3d at 285 (holding that an asylum applicant may be required to produce "evidence corroborating his story, or an explanation for its absence, ... where it would reasonably be expected").
Although the IJ made no specific finding as to availability, the record hardly suggests that this issue presented any real concerns. Zhang testified that in the weeks before his July 1, 1998 hearing, he had requested and received from his wife in China the birth, marriage, household registration, sterilization, and fine certificates that were offered in evidence to support his persecution claim. Thus, Zhang's failure to produce similar documents, which the IJ considered more probative, could reasonably be deemed more a product of Zhang's oversight or neglect than of the documents' unavailability. Such a conclusion would certainly be warranted with respect to the most significant missing document identified by the IJ: an affidavit or statement from Zhang's wife detailing her forcible sterilization. In response to an IJ inquiry about why he had not asked his wife to send such a document, Zhang did not assert unavailability. Rather, he replied, "Oh, the time was rather urgent, and I forgot to mention that." Hearing Tr. at 39. In claiming that he was pressed for time, Zhang ignored the fact that he had waited five years to seek reopening of his asylum application.
Even if Zhang's ability to secure the identified corroborative documents were in doubt, however, he would not be entitled to the relief sought in this petition. The requirement for corroborative documents'"identification" and "availability" articulated in Jin Shui Qiu v. Ashcroft (as derived from Diallo v. INS) pertains when the IJ or BIA cites inadequate corroboration as a basis for denying asylum to an applicant who is otherwise credible. See Jin Shui Qiu v. Ashcroft, 329 F.3d at 153 (noting that Diallo recognized IJ authority to deny asylum "in some cases where the applicant has failed to provide certain corroborative documents, even though the applicant testified credibly to facts that, if true, would qualify her for refugee status"). That is not this case. If Zhang's failure to produce the identified corroboration were excused, what would remain would be (1) the IJ's finding that Zhang's "inconsistent testimony ... seriously undermines the applicant's truthfulness and credibility before the Court," IJ Decision at 7-8, and (2) the BIA's finding that "important discrepancies" in the evidence "are indicative of an overall lack of veracity on the part of the applicant," BIA Decision
To summarize, we conclude (1) that the adverse credibility findings of the IJ, thereafter concurred in by the BIA, were supported by substantial evidence of inconsistent statements by Zhang on matters material to his asylum claim, and (2) that such adverse credibility findings themselves constitute sufficient evidence that Zhang failed to carry his burden of proof, without regard to whether the identified corroboration was or was not available to him. Accordingly, Zhang's petition for review of the BIA order dismissing his appeal is hereby DENIED.
STRAUB, Circuit Judge, dissenting.
I respectfully dissent. The majority reads the BIA's opinion as making an adverse credibility finding based on two inconsistencies in Zhang's testimony that were mentioned by the IJ. According to the majority, those two inconsistent statements provide substantial evidence supporting an adverse credibility finding by the BIA.
The majority's approach is flawed for the simple reason that the BIA did not find Zhang's account incredible based on the two inconsistencies cited by the IJ. The IJ's decision said that Zhang gave inconsistent testimony on two matters: the date Zhang's wife was forcibly sterilized and the date he learned about the sterilization after he arrived in the United States. The BIA, in reviewing the IJ's decision, said that the IJ "cited several important discrepancies surrounding the facts that form the basis of the applicant's claim." BIA Decision at 1. However, the BIA added that "some of [the inconsistencies cited by the IJ] may have an explanation" and that the cited inconsistencies were "not conclusive in themselves" to provide a basis for denying Zhang's asylum claim. Id. The majority is correct that the BIA said that the inconsistencies cited by the IJ were "indicative of an overall lack of veracity on the part of [Zhang]." Id. But in the very same sentence, the BIA said that the inconsistencies were "not conclusive in themselves," id. — presumably because the BIA thought there might be an explanation for the inconsistencies or because the BIA thought the inconsistencies were too minor to alone provide a basis for an adverse credibility finding. Although much about the BIA's opinion is unclear, what is clear is that if the BIA did indeed find Zhang's account of persecution incredible, it did not rely exclusively on the inconsistencies cited by the IJ. In light of the
Unlike the majority, I do not read the BIA's decision as entirely rejecting Zhang's testimony. But even accepting the majority's view that the BIA made an explicit adverse credibility finding, the case must be remanded. If the BIA made an adverse credibility finding, it must have relied on some reason or reasons in addition to the inconsistencies cited by the IJ. Unfortunately, other than to say that the inconsistencies cited by the IJ were inconclusive as to Zhang's credibility, the BIA does not explain its reasoning regarding Zhang's credibility. We require the BIA to provide "`specific, cogent' reasons" for an adverse credibility finding that "bear a legitimate nexus to the finding." Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). Without knowing the basis for the BIA's adverse credibility finding — assuming it made one — we cannot uphold it.
I read the BIA's decision as expressing doubt about the veracity of Zhang's testimony, but not rejecting the testimony entirely. Rather, the BIA looked at whether Zhang's testimony — which it described as of "limited credibility and lacking in detail" — combined with the "few documents" Zhang offered to corroborate his claim, were sufficient to meet his overall burden of proof. BIA Decision at 2. Our decision in Qiu v. Ashcroft, 329 F.3d 140 (2d Cir.2003), which was decided after the BIA denied Zhang's claim, clarifies the standards for requiring testimonial detail from an asylum applicant. Under the standard set forth in Qiu, Zhang's account was sufficiently detailed. Therefore, "lack of detail" should not have played a role in the BIA's burden-of-proof analysis. Because the BIA's application of an improper standard for testimonial specificity may have influenced its decision to deny Zhang's claim, remand for reconsideration in light of Qiu is warranted.
In addition, although Zhang submitted documents corroborating his claim, including a certificate stating that his wife had been sterilized, the BIA's only mention of Zhang's documentary evidence is its statement that the combination of Zhang's testimony and his "few documents" was insufficient to meet the overall burden of proof. BIA Decision at 2. We simply cannot discern from the BIA's decision whether it applied the proper legal standards regarding corroborating evidence and remand is required for that reason as well.
In sum, for the reasons explained below, I believe remand is required whether the BIA's decision is read either as (1) making an adverse credibility finding (the majority's view), or (2) holding that Zhang failed to meet his burden of proof based on a combination of the lack of detail in Zhang's testimony, insufficient documentary evidence, and doubts about his credibility. Moreover, the fact that the BIA has so inadequately explained its decision such that there is doubt as to its reasoning is itself a reason to remand for explanation.
I. The BIA's Decision
In a case such as this, where the BIA has issued an opinion which does not fully
The BIA's opinion discusses Zhang's claim as follows:
BIA Decision at 1-2.
As the majority recounts, the IJ stated that Zhang gave inconsistent testimony about two matters — the date Zhang's wife was forcibly sterilized and the date Zhang learned of the sterilization after arriving in the United States. See Ante at 74-77. The BIA presumably was referring to those two inconsistencies when it stated that "[t]he Immigration Judge cite[d] several important discrepancies surrounding the facts that form the basis of the applicant's claim." BIA Decision at 1. The BIA acknowledged, however, that some of the inconsistencies cited by the IJ "may have an explanation," and concluded that although the inconsistencies were "indicative
The majority appears to argue that the BIA's statement that the inconsistencies were "not conclusive in themselves" was meant to convey that the discrepancies were not themselves about the central issue of whether Zhang suffered persecution — i.e., whether or not Zhang's wife was in fact sterilized. See ante at 75 n. 10. There were discrepancies about certain dates, but not about the fact of the sterilization. In the majority's view, the BIA concluded that although Zhang consistently testified that his wife was sterilized, the discrepancies about the dates were conclusive in themselves as to Zhang's credibility. In other words, based on the discrepancies about dates, the BIA could determine conclusively that Zhang was lying about the sterilization.
The majority's reading is, at best, quite strained. The BIA said: "While some of the [discrepancies] may have an explanation, we find that these problems, while not conclusive in themselves, are indicative of an overall lack of veracity on the part of the applicant." BIA Decision at 1. The most straightforward reading of this sentence is that the BIA concluded that although the inconsistencies about the dates were "indicative" of a lack of veracity on the part of Zhang, they were not alone enough to make it sure that Zhang was lying about the persecution. The inconsistencies were not conclusive as to whether Zhang's account of the sterilization was incredible.
The majority asserts that the BIA's sentence is structured "not to qualify the credibility finding" but to "clarify that the adverse credibility finding is made despite the observations." Ante at 75 n. 10. "Despite" is a word injected by the majority. Nothing about the sentence suggests that the BIA was seeking to strengthen its credibility assessment. Rather, the words "indicative" and "not conclusive" are hedging terms.
It makes sense that the BIA was unwilling to find Zhang's account incredible based only on the inconsistent statements mentioned by the IJ.
After stating that the inconsistencies cited by the IJ were "not conclusive in themselves," the BIA said: "[w]e agree with the Immigration Judge that the applicant has not presented consistent, detailed, or credible testimony." Id. at 2. This statement in isolation appears to be an adverse credibility finding. Yet this sentence is in tension with the BIA's previous statement
Therefore, it appears to me that the BIA expressed doubt about Zhang's credibility, but did not make an adverse credibility finding. Rather than finding Zhang incredible based on the inconsistencies in his testimony that were cited by the IJ and denying Zhang's claim on that basis, the BIA considered whether Zhang's testimony — which it described as "lacking in detail" and "of limited credibility" — combined with the documents Zhang submitted, met the overall burden of proof.
II. Insufficient Reasons for Adverse Credibility Finding
Even accepting the majority's view that the BIA made an adverse credibility finding rather than simply expressing doubt about Zhang's credibility, remand is required because the BIA did not explain the basis for the adverse credibility finding.
As the majority recognizes, we require the BIA to provide "specific, cogent" reasons for an adverse credibility finding that bear a "legitimate nexus" to the finding. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Moreover, inconsistencies that are "relatively minor and isolated" need not "be fatal to credibility." Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000).
Although the majority recognizes that the BIA is required to explain the basis for an adverse credibility finding, the majority ignores the fact that the BIA stated that the inconsistencies cited by the IJ were "not conclusive" and that some "may have an explanation." Instead, the majority takes the view that the BIA considered the two inconsistencies cited by the IJ conclusive as to Zhang's credibility. Relying on that view, the majority reasons that the two inconsistencies "were not the sort of `minor or isolated' discrepancies so plainly immaterial to a persecution claim that no reasonable fact-finder could use them as a basis for an adverse credibility ruling," ante at 77, and says that the inconsistencies qualify as "specific, cogent" reasons bearing a "legitimate nexus" to the adverse credibility finding that our cases require, ante at 77. The majority concludes that the "the adverse credibility findings of the IJ, thereafter concurred in by the BIA, were supported by substantial evidence of inconsistent statements by Zhang on matters material to his asylum claim" and these adverse credibility findings "constitute substantial evidence to support the conclusion that Zhang failed to carry his burden of proof." Ante at 79.
I cannot agree with the majority's approach because it is clear from the BIA's decision that if the BIA did indeed make an adverse credibility finding, it must have relied on some reason in addition to the two inconsistencies cited by the IJ. Although the BIA concluded that those inconsistencies were "indicative" of a lack of veracity on the part of Zhang, the inconsistencies were not conclusive of the matter. The BIA's decision fails to provide any other reason for doubting Zhang's account. Although the BIA mentions the lack of detail in Zhang's testimony and the "few
Therefore, assuming the BIA did make an adverse credibility finding — as the majority asserts that it did — the BIA failed to provide the specific reasons for the decision that we require. See Secaida-Rosales, 331 F.3d at 307. Without knowing the reasons for the adverse credibility finding, we cannot determine whether the reasons are supported by evidence in the record and whether the reasons bear a "legitimate nexus" to the adverse credibility finding. See id. For example, suppose the BIA found Zhang incredible based on the two inconsistencies cited by the IJ and some third reason, which upon our examination we discovered had no basis in the record. In such a case, we would have to remand, because the BIA expressed its view that the two inconsistencies cited by the IJ would not alone support an adverse credibility finding. In the present case, assuming the BIA did find Zhang incredible, we do not know what reasons it relied upon in addition to the two inconsistencies cited by the IJ. Therefore, we are unable to conduct an adequate review of the decision.
The fact that a hypothetical reasonable adjudicator could have made an adverse credibility finding based on the two inconsistencies cited by the IJ does not suffice. Rather, to uphold the BIA's adverse credibility finding based on the inconsistencies cited by the IJ, it must be the case that the BIA actually made an adverse credibility finding based on those inconsistencies. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1946) ("[A] reviewing court ... must judge the propriety of [an agency's] action solely by the grounds invoked by the agency."); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir.2004) ("As we tirelessly remind the lawyers from the Justice Department's Office of Immigration Litigation, the Chenery rule bars a reviewing court from upholding an agency's decision on a ground different from the agency's.") (citations omitted). Our deference to the BIA does not include an obligation to seek out alternative grounds to affirm based on what the BIA could have, but did not, find. See Qiu, 329 F.3d at 149. I do not agree with the majority that we can affirm an adverse credibility finding by the BIA based on the inconsistencies cited by the IJ, as the BIA was of the view that those inconsistencies were insufficient to support such a finding. Because the BIA does not give us the reasons for its adverse credibility finding — assuming it made one — we must remand to the BIA for further explanation of its reasoning.
III. Improper Demand for Additional Testimonial Detail
For the reasons discussed above, it appears that the BIA did not deny Zhang's persecution claim based on a finding that his account was incredible, but rather denied his claim based on a conclusion that Zhang's testimony, combined with the documents he submitted, was insufficient to meet the overall burden of proof.
The BIA mentions the lack of detail in Zhang's testimony as a reason for concluding that he failed to meet his overall burden of proof. In Qiu v. Ashcroft, 329 F.3d 140 (2d Cir.2003), we held that the BIA erred in denying an asylum claim based on the view that the testimony was insufficiently detailed. We acknowledged in Qiu that "the petitioner whose testimony is vague can only qualify for asylum if he produces evidence that adds a certain
The BIA mentioned the "lack of detail" in Zhang's testimony as a reason for finding he failed to meet his burden of proof, but failed to explain why more detail was required. Zhang clearly testified that (1) his wife was taken by five or six people, including officials from the village government, from her house; (2) she was brought to the hospital and sterilized; and (3) she did not agree to the operation. Under Qiu, Zhang's testimony was sufficiently specific because the facts, if true, establish eligibility for asylum. See 8 U.S.C. § 1101(a)(42) ("[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization... shall be deemed to have been persecuted on account of political opinion...."); Qiu, 329 F.3d at 151 ("[Qiu's testimony] is not detailed testimony, but neither is it `vague.' It is specific as to the following essential facts: (a) that his wife was forced to be sterilized against her will, and (b) that the agents of coercion were government birth control officials, from which it follows, absent contrary evidence, that they were acting to advance China's population control policy. This is enough specificity to bring Qiu's wife within the ambit of the IIRIRA's regulatory presumption of persecution on account of political opinion, and, under In re C-Y-Z-, it suffices for Qiu as well.").
Of course, lack of detail in an applicant's testimony can potentially bear on a credibility assessment. We explained in Qiu that "[w]here an applicant gives very spare testimony ... the IJ or the INS may fairly wonder whether the testimony is fabricated," id. at 152, and we suggested that in such cases "the IJ and counsel for the INS may wish to probe for incidental details, seeking to draw out inconsistencies that would support a finding of lack of credibility," id.
However, the IJ did not remark on lack of detail as a reason for doubting Zhang's credibility, and if the BIA considered lack of detail relevant to Zhang's credibility, it did not explain as much. Instead, the BIA apparently considered the "lack of detail" in Zhang's testimony relevant in determining whether Zhang met his burden of proof. However, under the standard set forth in Qiu, Zhang's claim should not have been denied on the basis of insufficient testimonial specificity. Qiu was decided after the BIA's decision on Zhang's claim, and we should remand to the BIA for reconsideration of whether Zhang has met his burden of proof in light of Qiu. It may be that the BIA would find that Zhang has failed to meet his burden of proof even without "lack of detailed testimony" playing a role in its calculus. But this is a determination the agency must make in the first instance.
IV. Inadequate Explanation of Treatment of Corroborating Documents
The BIA also erred in its consideration of Zhang's corroborating documentation. Corroborating evidence is relevant both in assessing credibility, and in determining whether an applicant has met the overall burden of proof. In Diallo v. INS, 232 F.3d 279 (2d Cir.2000), we explained the
Diallo, 232 F.3d at 290.
Zhang produced significant corroboration for his testimony, including: (1) his birth certificate; (2) his marriage certificate; (3) a copy of his family's household register; (4) a picture of his wife and two children; (5) a certificate of sterilization indicating that Zhang's wife had a sterilization operation on June 5, 1993; and (6) a cash receipt dated May 12, 1993 confirming that Zhang's wife paid a 3,000 RMB "family planning penalty" for "one exceeded birth."
The BIA, under Diallo, should have first made an explicit credibility determination that included an examination of the effect of Zhang's corroborating documents on his credibility. We explained in Diallo:
Diallo, 232 F.3d at 290. Although Zhang offered strong corroborating evidence, including the sterilization certificate and the receipt showing payment of a "family planning penalty," there is no indication in the BIA's decision that it considered whether Zhang's documentation bolstered his credibility. If the BIA doubted the authenticity of Zhang's documents, it did not say as much. Indeed, the BIA's only mention of the documents submitted by Zhang was its statement: "We simply cannot find the testimony, of limited credibility and lacking in detail, combined with the few documents, provide sufficient evidence to meet the overall burden of proof." BIA Decision 2 (emphasis added).
We do not know from the BIA's statement whether it thought that Zhang's documents were forged, or whether the BIA accepted the authenticity of the documents but thought that further documentary evidence was still needed for Zhang to meet the burden of proof. For example, the BIA might have thought that the sterilization certificate was authentic, but that Zhang provided insufficient corroborating evidence that the sterilization was forced — even if his testimony was credible. Or, the BIA may have concluded that the certificate's
The majority's view is that the BIA made an explicit adverse credibility finding, and therefore the BIA and IJ were not required to explain under Diallo why it was reasonable to expect further corroboration and why Zhang's explanations for the lack of such corroboration were insufficient. As I explained above, I do not think that the BIA made an explicit adverse credibility finding. However, it should have under Diallo. Diallo instructs that the BIA should first "decide explicitly whether or not [an applicant's] testimony was credible," Diallo, 232 F.3d at 290, and that assessment must include a consideration of corroborating evidence, id.
In any event, as I discussed above, even assuming the BIA did make an adverse credibility finding, remand is required because the finding was not adequately explained.
In sum, the BIA's opinion leaves us guessing at its reasoning. We should not have to guess at the basis for the denial of an asylum claim. See SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 91 L.Ed. 1995 (1946) ("If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. In other words, `we must know what a decision means before the duty becomes ours to say whether it is right or wrong.'"). The BIA's decision in this case, is, to use its own words, "lacking in detail." Although we accord the BIA deference, the BIA is required to "elucidate the basis for its factual conclusions," Qiu, 329 F.3d at 149, and "we will vacate BIA conclusions ... that a perfectly reasonable fact-finder could have settled upon, insofar as the BIA ... has not supported its findings with record evidence," id.; see also Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.2004) ("`A reviewing court should judge the action of [the BIA] based only on reasoning provided by the agency, not based on grounds constructed by the reviewing court,' and `that basis must be set forth with such clarity as to be understandable.'") (citations omitted); Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir.2004) ("The two cases under review, like the other cases in which we have reversed the board of late, are not so difficult that it is unreasonable for a reviewing court to expect and require reasoned judgments at the administrative level.").
We note that IIRIRA changed the vocabulary of immigration proceedings, recharacterizing actions that had been referred to as "deportation" and "exclusion" as "removal." See Evangelista v. Ashcroft, 359 F.3d 145, 147 n. 1 (2d Cir.2004). Thus, the form of relief that had been called "withholding of deportation or return," see 8 U.S.C. § 1253(h) (Supp. V 1993), is now called "withholding of removal," see 8 U.S.C. § 1231(b)(3). For ease of reference in this opinion, however, we employ the pre-IIRIRA vocabulary in effect at the time of Zhang's application.
Although these statements were inconsistent with others that Zhang would subsequently make to support an application for asylum and withholding of deportation, his entry interview was not received in evidence at the exclusion hearing that addressed that application, apparently because of questions about adequate translation and timely disclosure. Because our review is limited to the record before the IJ and BIA, we too do not consider the entry statements in ruling on Zhang's petition.
BIA Decision at 1-2 (internal citations omitted) (emphasis added).
This passage leaves us with no doubt that the BIA expressly agreed with the IJ's adverse credibility finding: "we agree with the Immigration Judge that the applicant has not presented consistent, detailed, or credible testimony." Id. at 2 (emphasis added). The fact that the BIA, in the next sentence, characterized Zhang's testimony as of "limited credibility" does not undermine this conclusion. Id. Few witnesses lie in response to every question asked. The BIA, however, expressly ruled that the record of inconsistencies in Zhang's case demonstrated "an overall lack of veracity on the part of the applicant." Id. at 1 (emphasis added).
The dissent suggests that this conclusion was somehow qualified by the BIA's acknowledgment that "some" of Zhang's inconsistent statements "may have an explanation", and its recognition that the inconsistencies were not themselves "conclusive." Id. We disagree. This sentence is structured not to qualify the credibility finding with the two observations but to clarify that the adverse credibility finding is made despite the observations: "While some of these [discrepancies] may have an explanation, we find that these problems, while not conclusive in themselves, are indicative of an overall lack of veracity on the part of the applicant." Id.
In any event, we read the BIA's observations somewhat differently from our dissenting colleague. When viewed in light of the hearing record, the first statement appears to acknowledge simply that "some" inconsistencies noted by the IJ were excused by him as possibly attributable to translation or typographical errors. But the word "some" suggests that not all inconsistencies could be so excused; notably, not Zhang's inconsistent accounts of when his wife was sterilized and when he learned of this event. As for the BIA's statement that the inconsistencies in Zhang's testimony were not "conclusive," we understand this to mean that resolution of the factual discrepancies would not conclusively determine the issue of persecution. Regardless, the inconsistencies did permit a conclusion that Zhang demonstrated an "overall lack of veracity." Id.
In sum, we are satisfied that the BIA, like the IJ, specifically found that inconsistencies in the hearing record indicated that Zhang had failed to provide credible testimony to support his asylum claim.
We recognize, of course, that to the extent Zhang was testifying about his wife's alleged sterilization, an event about which he had no personal knowledge, he could not be expected to provide the same level of detailed testimony as an applicant who was with his spouse in China at the time of the forcible procedure. In Zhang's case, however, it was the very details that he should have known, i.e., when and how he learned that his wife was sterilized, about which he could not provide either consistent or detailed testimony. Accordingly, the record supports the conclusion that he failed to carry his burden of proof.