                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                   UNITED STATES COURT OF APPEALS                       June 7, 2006

                         FOR THE FIFTH CIRCUIT                    Charles R. Fulbruge III
                                                                          Clerk



                                  04-60553



     ZHONGNE LI,

                                              Petitioner,

                                     v.

     ALBERTO R GONZALES,
     U.S. Attorney General,

                                              Respondent.



               On Petition for Review from an Order of
                   the Board of Immigration Appeals
                              A96 289 537



Before GARWOOD, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

     In this petition for review from an order of the Board of

Immigration    Appeals   (“BIA”),    the     sole   challenge     is    to    the

immigration    judge’s   (“IJ”)   adverse     credibility   determination.

After a thorough review of the record, we conclude that the IJ’s



     *  Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

                                     1
findings    with      respect    to   credibility     are   contradictory     and

confusing.       We    therefore      grant   the   petition   and   remand   for

clarification of the findings or for rehearing.

      I.    BACKGROUND AND PROCEDURAL HISTORY

      Zhongne Li, a citizen of China, was served with a Notice to

Appear (“NTA”) by the Immigration and Nationalization Service on

March 13, 2003.1       The NTA alleged that Li had illegally entered the

United States on or about March 3, 2002.             At a hearing before an IJ

on March 31, 2003, Li admitted the allegations of the NTA and

conceded that he was subject to removal.                Li indicated that he

would be seeking asylum, withholding of removal, protection under

the   Convention       Against     Torture    (“CAT”)    Act,2   and,   in    the

alternative, voluntary departure.

            A.     Li’s Testimony and Evidence at the Hearing

      The IJ conducted a hearing, and Li was the only witness.

Through a translator, Li testified on direct examination that he is

a forty-five year old man from China, who is married with one child

in college.      Li’s wife, child, brother, and sister still live in

China.     Li and his business partner owned a company in China that

manufactured products for gold miners.              Li owned the business for


      1
        Although petitioner’s identity is in dispute, the parties
refer to him as “Li” in their briefs.
      2
       Li has not challenged on appeal the IJ’s denial of his claim
under the CAT.     Therefore, any relief under that provision is
waived. Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir.
1986).

                                         2
two years and had fifty-six employees.     His company was seized by

the Chinese government in February 2002 and no longer exists.

     Li was arrested at a student demonstration in 1989 and spent

five days in jail.    In 1996, he became a member of the Shenhe

District Underground Family Church (“Church”), a Christian group

having about 300 members.    The members were divided into small

groups, and Li’s group met at his mining company.

     In October 2000, police officers came to Li’s business and

showed Li a picture of one of Li’s fellow Church members.       The

officers told Li that the man in the picture had been arrested and,

while in custody, had told officers that Li was a Christian.     Li

denied that he was a Christian and told the police that the man in

the picture owed Li’s company money and was trying to avoid the

debt.   On January 19, 2002, the officers returned to Li’s business

and searched the office and the factory.         The officers found

religious materials and questioned Li and his partner about them.

Li and his business partner were arrested and taken to a detention

center.   He never saw his partner again.

     Li remained in detention for seventeen days.        During the

detention, the police required Li to work and study.   He was denied

food and water and was beaten.       If he moved while studying, he

would be ordered to kneel for ten hours.    The police interrogated

him regarding whether he was a Christian and after being beaten for

days, he confessed to disturbing the social order and being harmful

to the nations’s security.      During the interrogation, he was

                                 3
scalded with hot water on his left hand and shoulder.    Because his

burns became infected, he was released on bond on February 4, 2002.

As he was leaving, a police officer informed Li that he would have

to return and “be sentenced to three to five years.”     After being

released, he had to report to the police station on a weekly basis.

     Li testified that he was treated for the burns three times at

a hospital.   He introduced medical records showing that he had

received the treatment.    Li also introduced photographs of his

scars caused by the scalding water and beatings inflicted during

his detainment.

     According to Li, he applied for a passport in October 2001

after the police visited his business and questioned him about his

religious involvement.    He obtained a visa on February 19, 2002.

He admitted obtaining the passport and visa in the name of his

deceased relative, Zhongquan Zhang (“Zhang”).    Li could not obtain

the passport in his own name because of his arrest record.

     Li explained that he obtained Zhang’s identification card

while Zhang was in the hospital following a traffic accident prior

to Zhang’s death.   Li used Zhang’s identification card and his own

picture to obtain the passport.       He went to the foreign affairs

office and filled out some forms and then obtained help from a

“street committee.”

     Li testified that the picture on the identification card was

of Zhang, but that he looked similar to Zhang.    The IJ skeptically

commented, “you want me to believe that, sir?”    Li repeated that he

                                  4
looked similar to his relative and that he also had the help of

someone in the foreign affairs office to obtain the passport.

     The IJ asked Li why he needed someone else’s identification

card when he had bribed someone in foreign affairs office to obtain

a passport.   Li explained that “agencies” outside the foreign

affairs office told him that they would have someone in foreign

affairs help him.    The IJ again accused Li of bribing someone in

foreign affairs, and Li responded that he could not apply for the

passport in his own name.

     The IJ asked for Zhang’s identification card, and Li answered

that it had been taken by the police because Zhang’s residency had

been cancelled.     The IJ asked whether Li had any evidence that

Zhang had been killed in an automobile accident, and Li responded

that he did not have such evidence because he did not think he

would need it once he acquired the visa and passport.

     The IJ indicated that Li should have thought to obtain that

evidence to prove his asylum claim.   Li responded that he thought

originally that he would be able to return home to China after one

year but then his wife wrote him and told him that he had been

sentenced to three years in prison.

     The IJ remarked that persons who apply for asylum generally do

not expect to return home within one year.     Li explained that he

planned to return home to run his business until he learned about

his prison sentence.      The IJ was skeptical that Li actually

believed that he could return home to China.   Li reiterated that he

                                 5
would have returned if he had not received a prison sentence.

     Counsel for the Immigration Service asked Li how he could

prove that he was not the person whose name (Zhang) was on the

passport.   Li responded that he had an identification card, but

apparently a card with the wrong name or the wrong translation of

the name had been filed in the record.         Li’s counsel had a

different document in his file, but the IJ refused to consider it

because it was not previously submitted to the court.      However,

Li’s counsel did produce an identification card that Li testified

had his name on it.   Counsel also submitted letters addressed to Li

by his wife and friend.     Li’s counsel asked him to identify the

translation of his birth certificate, and Li said that he recalled

the document, although he did not initially recall that he had

submitted that document to the court.

     The IJ again questioned Li about how he had obtained a

passport.   Li again told the IJ that someone outside of the foreign

affairs office helped him get the passport using the identification

of Zhang and Li’s own picture.    The IJ asked if fingerprinting was

required to obtain a passport, and Li answered no.    The IJ did not

accept Li’s response, questioning how the Chinese government could

know that it was issuing the passport to the proper person without

fingerprinting.    Li repeated that the application was processed

without any fingerprinting.      Li admitted that it was common in

China to be able to purchase a false identification document.

     The IJ then asked Li why he should believe Li if it was so

                                  6
simple to obtain a fraudulent document in China.      Li acknowledged

that corruption was common in the Foreign Affairs office in China.

The IJ stated that Li appeared to be making up stories along the

way and had not provided the “missing link” evidence, which was the

identification card of Zhang or proof of his death.      The IJ again

attacked Li’s credibility, asking why he should believe that Li was

who he said he was based on evidence “that easily could have been

made up.”   Counsel for Li responded that the documents provided

proved that the applicant was Li.        The IJ responded that Li had

testified that you could buy any identification documents you want

in China, and counsel disagreed that Li had agreed with the IJ’s

comments concerning bribery.    The IJ stated that he had perceived

Li’s testimony differently.    When asked if he would like to see

Li’s identification card, the IJ refused to look at it because it

was not in the record.

     Li testified that if he returned to China, he would be

persecuted and sent to prison.        He related that he would not be

safe anywhere in the country because there is a resident management

policy that requires reporting to the resident office and local

resident agencies.

     Counsel for the Immigration Service asked about a photograph

of Li’s mining company, which reflected that a seal had been placed

on the gate of the business.   Li stated that the seal was placed on

the gate in February of 2002 when the government seized his

business.   The IJ pointed out that the pictures contained a date

                                  7
stamped by the camera of October 1st or January 10, 2001.3     Li’s

counsel replied that many times the dates are not properly set on

cameras.

     Li learned that his business had been seized from other

persons and had not been served with any papers.   He testified that

it was seized because of the underground church activity.        He

learned via telephone calls from his friends that his partner had

been sentenced to two years in prison.

     Li provided a Notarial Certificate of Nationality stating that

“Li Zhongen”4 had been born on October 9, 1959 and was a Chinese

national.    An English translation of the certificate was also

submitted into evidence.

            B. IJ’s Ruling

     After the hearing, the IJ denied Li’s applications but granted

his request for voluntary departure.     The IJ stated that he had

observed Li’s demeanor during the proceedings and had determined

that Li was not a credible witness.    The IJ observed that Li had

answered his counsel’s questions in a forthright manner, but that

when he was questioned by the court or the Immigration Service

counsel, his “tone of voice changed” and his “hands were holding


     3
        The date stamp on the bottom of the picture is not clearly
discernable in the record on appeal.
     4
       According to counsel at the hearing, the actual spelling of
Li’s name is “Zhongen.” However, in the immigration record during
the administrative proceedings, it was incorrectly spelled
“Zhongne” apparently due to his counsel’s error.

                                8
each other quite tight during that time.”       The IJ also noted that

Li’s hands were “trembling” at times.          The IJ found that Li’s

responses were “not meaningful or [were] unresponsive to the

questions being asked.”     The IJ stated that the “answers provide

the Court an impression that he was making up explanations along

the   way,   trying    to   explain    away    the   impossibility   or

unbelievability that he presented.”

      The IJ determined that Li gave inconsistent statements about

the manner in which he obtained his passport.        The IJ also stated

that he did not believe that fingerprinting was not required to

obtain a passport.       The IJ determined that the date on the

photograph of the seized business indicated that it was seized in

2001 as opposed to 2002, as Li claimed.       The IJ would not consider

counsel’s suggestion that the camera’s date may not have been

properly set.    The IJ determined that Li had not provided any other

evidence that he owned a business.     The IJ also was concerned that

Li did not recall submitting a birth certificate to the court.

      The IJ concluded that he could not determine whether the

applicant was Li or the person whose name was on the passport.       The

IJ also relied on Li’s testimony that it is not difficult to obtain

false identification documents in China.       The IJ concluded that Li

had not carried his burden of showing that he was the person he

claimed to be.    The IJ found that fact, coupled with Li’s demeanor

and inconsistent statements, rendered him ineligible for asylum or

withholding of removal and denied his applications.

                                   9
     However, the IJ went on to state that if the applicant was Li

Zhongne, as he claimed to be, the IJ would be required to find that

Li suffered past persecution based on his religious activities.

The IJ found that Li had joined an underground church in China in

1996 and that twelve members of the group had gathered at Li’s

business to worship.        The IJ found that, as the result of the

arrest of one of its members, Li’s name was provided to the

government as a church member, and Li was arrested and his business

was seized.    The IJ further determined that during his detention,

Li was beaten, given insufficient food, and forced to kneel for

ten-hour periods.      The IJ determined that this persecution arose

out of Li’s religious activities.              The IJ also found that the

background    information    from      the   State   Department     showed   that

conditions    in   China    had   not    changed     and   that   there    was   a

nonrebuttable      presumption    of    a    well-founded    fear    of    future

persecution.

     Although he found that Li failed to establish his identity

and, thus, a believable account of his alleged persecution, the IJ

refused to find that Li testified falsely and granted his request

for voluntary departure.

     Li timely appealed the IJ’s decision to the BIA.                     The BIA

adopted the IJ’s credibility determination for the reasons provided

by the IJ and affirmed the IJ’s decision without opinion.                 The IJ’s

decision thus became the final agency determination.                See 8 C.F.R.

§ 1003.1(e)(4).     Li now petitions this Court for judicial review of

                                        10
the BIA’s affirmance of the IJ’s decision.

     II.    ANALYSIS

     Generally, we review only the decisions of the BIA.                 Efe v.

Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).               However, when the

BIA, as in the instant case, adopts the findings of the IJ, we

review the IJ’s findings.        Id.

     We review an IJ’s factual findings for substantial evidence

and will    not    reverse   unless    the   evidence    compels    a   contrary

finding.    See Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).                “We

cannot substitute our judgment for that of the BIA or IJ with

respect to the credibility of the witnesses or ultimate factual

findings based on credibility determinations.”                   Id. (citation

omitted).         Nonetheless,    we    will    not     uphold     “credibility

determinations that are unsupported by the record and are based on

pure speculation or conjecture.”             Mwembie v. Gonzales, 443 F.3d

405, 410 (5th Cir. 2006).

     Li contends that “‘the substantial evidence’ standard is not

the proper one for this case, as this is not one in which the

Petitioner is simply arguing that the IJ evaluated the facts

improperly.”      Instead, he argues that the IJ erred as a matter of

law in making the adverse credibility determination.                We need not

reach Li’s argument regarding the appropriate standard of review

because we conclude that the IJ’s findings and conclusions are

confusing and contradictory and therefore remand for clarification


                                       11
or for rehearing.

     As previously set forth, the IJ concluded that he could not

determine   Li’s    identity.         The   IJ   also   expressly     found   Li

“statutorily . . . eligible” for voluntary departure.                One of the

statutory requirements for voluntary departure is that the “alien

is, and has been, a person of good moral character for at least

five years immediately preceding the alien’s application . . . .”

8 U.S.C. § 1229c.       We conclude that it is contradictory for the IJ

to find that he does not know the identity of the alien but

nonetheless finds that such unknown alien is and has been a person

of good moral character.         Cf. Kalubi v. Ashcroft, 364 F.3d 1134,

1141-42   (9th   Cir.    2004)   (explaining     that   “if    an   applicant’s

testimony on an issue is accepted for purposes of determining

whether he is statutorily eligible for asylum, the same testimony

must also be accepted for purposes of determining whether he is

entitled to asylum as a discretionary matter”).               Clearly, without

knowing the identity of a person, the IJ cannot determine whether

that person is and has been of good moral character for at least

five years.

     Additionally,       the   IJ’s   findings    are   confusing.      The   IJ

expressly states that he is not finding that Li testified falsely.

Yet, the IJ makes an adverse credibility determination, finding

that Li’s account was not “believable.”           Indeed, the IJ accuses Li

of “making up stories along the way [when] I ask you questions.


                                       12
You don’t seem to be a credible witness, sir.”                        At least without

further        explanation,       these       statements     cannot     be    reconciled.

According to the IJ, Li would be entitled to asylum if he in fact

was Li.    His testimony about his identity cannot be incredible and

“made up” and at the same time not be false.

     In short, because we find the IJ’s findings and conclusions

confusing and contradictory, we remand for clarification or, in the

alternative, a rehearing.                  Cf. Seymour v. Oceanic Navigating Co.,

Ltd., 453 F.2d 1185 (5th Cir. 1972) (remanding to the district

court for clarification because the court’s findings of fact were

“self-contradictory, confusing, and inconsistent with the court’s

statements at trial”).            On remand, the BIA should be mindful of our

very recent precedent instructing that (1) adverse credibility

determinations          should        be    rational   and    not     based   upon    pure

speculation        or    conjecture,          Mwembie,     443   F.3d    at    407,   (2)

adjudicators should be sensitive to potential misunderstandings

when an applicant is testifying through a translator, id. at 407

n.3 (citing Iao v. Gonzales, 400 F.3d 530, 533-34 (7th Cir. 2005));

and (3) adjudicators should be reasonable in demanding further

proof     or     documents       to     avoid    making    “‘potentially       mistaken,

culturally based assumptions about the existence and availability

of documents.’”          Kabamba v. Gonzales, 162 F. App’x 337 (5th Cir.




                                                13
2006) (unpublished)1   (quoting Mulanga v. Ashcroft, 349 F.3d 123,

134 (3d Cir. 2003)).

     For the above reasons, the petition for review is GRANTED, and

the matter is REMANDED for further proceedings not inconsistent

with this opinion.




     1
        Although our unpublished opinion is not binding precedent,
it is persuasive authority. Ramchandani v. Gonzales, 434 F.3d 337,
339 (5th Cir. 2005).

                                14
