                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 14-1080


PIN ZHUANG CHEN,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   September 2, 2014          Decided:   September 10, 2014


Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition granted by unpublished per curiam opinion.


Troy Nader Moslemi, MOSLEMI & ASSOCIATES, New York, New York,
for Petitioner.   Stuart F. Delery, Assistant Attorney General,
Linda S. Wernery, Assistant Director, Susan Bennett Green,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Pin Zhuang Chen, a native and citizen of the People’s

Republic of China, petitions for review of the decision of the

Board    of    Immigration     Appeals    (“Board”)      dismissing       his    appeal

from     the     immigration      judge’s       (“IJ”)      order       denying        his

applications for asylum, withholding of removal and withholding

under the Convention Against Torture.                Because we find that the

adverse credibility finding that formed the foundation for the

Board’s decision is not supported by substantial evidence, we

grant    the    petition   for   review,      vacate     the    Board’s    order       and

remand for further proceedings.

               The Immigration and Nationality Act (“INA”) authorizes

the    Secretary    of   the    Department     of   Homeland         Security    or    the

Attorney General to confer asylum on any alien who establishes

refugee status.       See 8 U.S.C. § 1158(b)(1)(A) (2012); Hui Pan v.

Holder, 737 F.3d 921, 927 (4th Cir. 2013).                     The alien bears the

burden of proof and must establish either past persecution or a

well    founded     fear   of    future       persecution       on     account    of    a

protected ground.          See 8 U.S.C. § 1101(a)(42)(A) (2012); Hui

Pan, 737 F.3d at 927.

               Under the REAL ID Act, an IJ, after “[c]onsidering the

totality of the circumstances, and all relevant factors,” may

make an adverse credibility determination based on factors such

as the plausibility of the applicant’s account, the consistency

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between     the     applicant’s            written          and     oral        statements,           the

internal consistency of each such statement, the consistency of

such statements           with      other      evidence       of    record,         or      any      other

relevant factor.               8 U.S.C. § 1158(b)(1)(B)(iii); Hui Pan, 737

F.3d   at    928.         A    credibility           determination            may     rest      on    any

relevant factor even if such factor does not “go[ ] to the heart

of the applicant’s claim.”                     Id.     The REAL ID Act’s credibility

provision affords a flexible, “commonsense approach while taking

into consideration the individual circumstances of the . . .

applicant.”       Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012)

(internal quotation marks omitted).                          It also ensures that an IJ

does   not     “cherry          pick      solely           facts    favoring           an       adverse

credibility       determination           while       ignoring          facts    that       undermine

that result.”            Hui Pan, 737 F.3d at 928 (internal quotation

marks omitted); see also Shah v. Attorney Gen. of the U.S., 446

F.3d   429,   437        (3d    Cir.     2006)       (“Although          we    don’t        expect     an

Immigration       Judge        to    search      for       ways    to    sustain           an   alien’s

testimony, neither do we expect the judge to search for ways to

undermine     and    belittle            it.         Nor    do     we    expect        a    judge       to

selectively       consider           evidence,         ignoring          that       evidence         that

corroborates        an    alien’s        claims        and    calls       into        question        the

conclusion     the       judge      is    attempting          to    reach.”         (citation          and

internal quotation marks omitted)).                           When there is an adverse

credibility       finding,          we   “must       assess       whether       the    IJ       or   [the

                                                 3
Board] identified non-speculative, ‘specific, cogent reason[s]’

in support of the adverse credibility finding.”                                          Hui Pan, 737

F.3d at 928 (quoting Dankam v. Gonzales, 495 F.3d 113, 120–21

(4th Cir. 2007) (internal quotation marks omitted)).

             The scope of our review is narrow.                                   Hui Pan, 737 F.3d

at   926.         We       will    affirm        so       long    as    the        decision       is    not

manifestly contrary to law.                      Id.       An adverse credibility finding

is reviewed for substantial evidence.                                  Id.         “[A]dministrative

findings         of        fact        are     conclusive          unless              any     reasonable

adjudicator would be compelled to conclude to the contrary.”                                              8

U.S.C.      § 1252(b)(4)(B)                  (2012).         If    an       adverse           credibility

finding     is        based       on    speculation         and    conjecture                rather    than

specific         and       cogent        reasoning,          it        is        not     supported       by

substantial evidence.                   See Tewabe v. Gonzales, 446 F.3d 533, 538

(4th Cir. 2006).              An adverse credibility finding is “generally

fatal”      to        an    asylum           claim     unless      the           applicant        submits

sufficient evidence independent of his testimony.                                            Hui Pan, 737

F.3d at 930.               Because the Board did not adopt the IJ’s order,

our review here is limited to the Board’s decision.                                           Martinez v.

Holder, 740 F.3d 902, 908 & n.1 (4th Cir. 2014).

             Chen testified that he was persecuted after he was

arrested during an illegal underground Christian church service

at a church member’s home.                           He testified that he was kicked,

punched     and        beaten          with    rubber       batons          by    police        and    then

                                                      4
detained for thirty days, with no more beatings.                                 Chen stated

that after his release from detention, he came to the United

States so that he could freely practice his faith.

            The    IJ    denied    Chen’s         applications        for    relief       after

making an adverse credibility finding.                     The IJ based the adverse

credibility finding “principally” upon the conclusion that Chen

did not submit credible evidence showing that he practiced his

Christian faith after arriving in the United States.                                     (Joint

Appendix    (“J.A.”)       at     99).            Also     critical         to     the     IJ’s

determination was an impromptu telephone conversation the IJ had

with   Pastor     Wong   from     the   Chinese          Promise     Baptist       Church    in

Brooklyn, New York.         Pastor Wong submitted a letter stating that

Chen had participated in church services and indicated that he

was    available    by   telephone       if       there    were      further      questions.

Chen had testified that Pastor Wong and he were good friends.

During the telephone conversation with the IJ, Pastor Wong could

not recall Chen and indicated that he wrote many letters for

parishioners and that some parishioners would come once or twice

and not return.          The IJ also took issue with Chen’s testimony

regarding the injuries he suffered as a result of the alleged

beating and the number of Bibles that were confiscated by the

police when the underground church service was raided.

            The    Board    identified            four    of   the    IJ’s       findings    in

support    of   its     conclusion      that       the    IJ’s     adverse       credibility

                                              5
determination was not clearly erroneous:            (1) Chen initially

testified that his underground church had only one Bible that

was shared by participants, but testified later that the police

confiscated ten Bibles; (2) it was implausible that Chen had

bruises all over his body when he was released from custody

after being beaten only once on the first day of his thirty-day

detention; (3) Chen claimed to be good friends with Pastor Wong

and yet Wong had no personal knowledge of him; and (4) it was

inconsistent for Chen to claim he came to the United States to

freely practice his religion, but he had not attended church

services since moving to North Carolina nine months before the

hearing.   We will discuss each reason in turn.

           Chen testified that he did not own a Bible when he was

in China, but that the church leader had one Bible that was

shared by church members.      He also testified that newcomers to

the church did not have Bibles, but that the church leader would

sometimes receive Bibles that he would then sell to some of the

members.     Chen   also   testified   that   the   Bibles   that   were

confiscated by the police belonged to the individual members.

The Board and the IJ relied upon Chen’s response to a question

concerning whether he owned a Bible in China.           Chen said that

the church leader had a copy, and “we did not.”         (J.A. at 133).

He later testified that the police confiscated ten Bibles when

they raided the underground church service.

                                  6
              The Board and the IJ concluded that Chen’s testimony

was inconsistent because he testified there was only one Bible

and yet ten were supposedly confiscated by the police.                        Our

review of the record does not support such a conclusion.                 Chen’s

testimony that “we did not” have a Bible was not in response to

a question regarding whether any church members had Bibles; and

without further questioning it was an unsupported assumption to

conclude that none of the church members on the day of the

police raid had his or her own Bible.                  What Chen’s testimony

shows is that he did not own a Bible, that the church leader had

a Bible that could be shared, that other members also did not

own a Bible and that some members had Bibles that were bought

from the church leader.           We conclude that the Board’s adverse

credibility        finding   in   this       regard   is    not   supported    by

substantial evidence.

              We also conclude that substantial evidence does not

support the finding that it was implausible that Chen would have

bruises all over his body when he was released from detention.

Chen acknowledged that some of his bruises had healed during the

thirty-day period, but others remained.                    The IJ acknowledged

that Chen may have “mild signs” of bruising after his release,

but    that   it    “strain[ed]   credibility”        to    believe   Chen    “was

covered essentially all over his body with bruises.”                   (J.A. at

97).    We note that the IJ found that Chen did not claim that the

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beating was severe.           (J.A. at 98).          However, Chen did exactly

that by testifying that the beating was “very severe.”                         (J.A. at

141).

             We have reviewed Chen’s testimony and conclude that

the    Board’s   and    the      IJ’s    findings      in   this      regard   are   not

supported by specific and cogent reasons.                        We have held that

“the requirement that an IJ provide a specific and cogent reason

for an adverse credibility finding leaves ample room for the IJ

to exercise common sense in rejecting an applicant’s testimony

even if the IJ cannot point to contrary evidence in the record

to refute it.”         Tewabe, 446 F.3d at 540 (internal quotation

marks and alterations omitted).                  However, “[t]he point at which

a    [credibility]     finding     .    .    .   ceases     to   be   sustainable     as

reasonable and, instead, is justifiably labeled ‘speculation,’

in    the   absence    of   an    IJ’s      adequate      explanation,     cannot    be

located with precision.”               Ming Xia Chen v. BIA, 435 F.3d 141,

145 (2d Cir. 2006).           In this instance, Chen testified that he

suffered     a   severe     beating         by   three      guards,     that    he   was

subsequently detained for thirty days during which he was not

treated for his injuries, and that when he was released some

bruises had healed and others all over his body had remained.

Without     additional      evidence,       we    cannot    conclude     that    Chen’s

testimony was implausible and we are compelled to decide that

this credibility finding Chen is not supported by the record.

                                             8
             Also, we conclude that reliance on the IJ’s telephone

conversation with Pastor Wong in order to sustain the adverse

credibility finding is not supported by substantial evidence.

The Board found no clear error with the finding that Pastor Wong

had no personal knowledge of Chen.         A review of the transcript

of the telephone call shows that Wong was asked only once if he

knew Chen, to which he replied he did not know the person, and

that response was given at the beginning of the telephone call

before Wong asked to have the spelling of Chen’s name.           (J.A. at

171).   As Wong appeared to be attempting to determine the nature

of the telephone call, he asked if the IJ was inquiring about

“the Chen come to my church,” suggesting that perhaps Wong did

know of a Chen that attended his church.          (Id.).    The IJ had to

ask Wong five times to verify his own identity.             (J.A. at 170-

71).    The IJ and Wong required several interchanges even to

spell Chen’s name for Wong.       (J.A. at 171-72).        Also, Wong was

not given anything to refresh his memory, such as a copy of the

letter or one of the photographs Chen submitted showing Chen

with Wong.     He also had no advance notice of the telephone call.

(J.A.   at   327).   Nor   was   Wong   subject    to   cross-examination.

Furthermore,    Wong’s   corroborating    letter    was    written   almost

eighteen months before the merits hearing, and Chen testified

that he last attended church in New York in April 2009, almost a

year before the hearing.

                                    9
             Based on our review of the record, we conclude that

the finding that Wong had no personal knowledge of Chen is not

supported by substantial evidence.

            We also conclude that it was not inconsistent for Chen

to claim that he came to the United States to freely practice

his   religion    and    yet   had   not    attended    church    services     since

moving to North Carolina nine months before the hearing.                       It is

difficult to determine the sincerity of an alien’s religious

belief.     See Nasir v. INS, 122 F.3d 484, 487 (7th Cir. 1997)

(acknowledging difficulty judges have assessing one’s sincerity

about religious beliefs); Mejia-Paiz v. INS, 111 F.3d 720, 729

(9th Cir. 1997) (a less than extremely devout church member may

still qualify for asylum if he may still face persecution on

account   of   imputed     religious       belief).      A   failure     to   openly

practice religion in some circumstances may not indicate a lack

of sincerity.         See, e.g., Singh v. Holder, 720 F.3d 635, 644

(7th Cir. 2013) (“[A] sincere religious believer doesn’t forfeit

his religious rights merely because he is not scrupulous in his

observance; for where would religion be without its backsliders,

penitents,     and      prodigal     sons?”)    (internal      quotation       marks

omitted).

            Here, Chen’s intention for coming to the United States

was   formed     in   China.       At   that    time,   Chen     could   not    have

appreciated the reality of being an undocumented alien in the

                                           10
United    States   and   the   difficulties    of   attending    a   Chinese-

speaking church in North Carolina.            Chen testified that he did

not attend church because (1) he did not have transportation or

a driver’s license and there was no one who could drive him to

church; (2) his shift on Sundays started at 11:00 a.m. and ended

at midnight; (3) he does not have immigration status and he is

afraid to go anywhere; and (4) he still owes more than $60,000

of the $75,000 that was paid to the snakehead to smuggle him

into the United States.         Chen also testified that when he has

returned to New York, he has gone to church.

            The IJ noted that “[t]here are many Christian churches

that hold services on Friday nights or during the week.”                 (J.A.

at 95).     However, the Chinese Christian church in Winston-Salem

only indicated that it had services on Sundays at 10:45 a.m.

(J.A. at 215).      There was no evidence of any church, much less

one offering services in Chinese, that could accommodate Chen’s

schedule.       The IJ may rely upon common sense in reaching an

adverse credibility finding, but should take into consideration

the alien’s circumstances.       Singh, 699 F.3d at 329.         We conclude

that Chen’s circumstances as revealed by his testimony did not

render    his   stated   intention   for   coming   to   the   United   States

sufficiently inconsistent with his actions to support an adverse

credibility finding.



                                     11
              The Board also agreed with the IJ that Chen failed to

provide      corroborating          evidence          from    friends        and   fellow

parishioners regarding his church attendance in New York.                               We

note that Pastor Wong’s corroborating letter was discredited as

a   result    of    the   telephone       conversation        that    we    conclude   was

unreliable.         We fail to see how the balance would have shifted

favorably     toward      Chen   even     if     he    had   provided       corroborating

letters      from    friends     and    fellow        parishioners         regarding   his

church activities.           See Djadjou v. Holder, 662 F.3d 265, 276

(4th Cir. 2011) (letters from family and friends not objective

corroborating evidence).

              Accordingly, we conclude that the adverse credibility

finding is not supported by substantial evidence and we grant

the petition for review, vacate the Board’s order and remand for

further proceedings consistent with this opinion. *                          We dispense

with oral argument because the facts and legal contentions are

adequately     presented       in   the    materials         before   this     court   and

argument would not aid the decisional process.

                                                                      PETITION GRANTED




      *
       We express no opinion as to the ultimate disposition of
Chen’s case.



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