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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-15251
                         Non-Argument Calendar
                       ________________________

                        Agency No. A206-091-422



WEI TAO LIU,

                                                                       Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                              (June 1, 2017)

Before MARCUS, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Wei Tao Liu, a native and citizen of the People’s Republic of China,

petitions for review of the Board of Immigration Appeals’ (“BIA”) final order

affirming the Immigration Judge’s (“IJ”) denial of his application for asylum,

withholding of removal, and relief under the United Nations Convention against

Torture (“CAT”) based on religious persecution. The IJ and BIA found Liu’s

testimony in support of his application to be incredible and discounted his

corroborating documentation based on his failure to mention without prompting

that, after he came to the United States, his brother had suffered similar persecution

in China. On appeal, Liu asserts that these determinations were based on

misstatements of the record and speculative assumptions, failed to take into

account the totality of the circumstances, and were unsupported by substantial

evidence. After careful review, we grant Liu’s petition and remand to the BIA for

further proceedings.

             I. FACTUAL AND PROCEDURAL BACKGROUND

A. Liu’s Background and Removal Proceedings

      1. Liu’s December 2013 Credible Fear Interview

      Liu entered the United States without inspection in December 2013. That

month, he submitted to a credible fear interview with an asylum officer, at which

he stated that he feared returning to China because of his activities on behalf of the

Christian church. Liu gave precise details about his activities. He first attended


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church in November 2012 when a neighbor he referred to as Auntie Chen

suggested that he go and listen to the sermons. Church made Liu feel better, so he

began to attend daily. On March 18, 2013, at Auntie Chen’s request, Liu and two

other church members distributed religious flyers in their village to spread the

gospel, promote the church, and invite people to join. Police arrested Liu and one

other person distributing flyers—the third fled—and took the two to the police

station, where Liu was held for three days. While he was in custody, police

slapped Liu’s face and asked him why he wanted to distribute flyers, which

conduct they said was prohibited. They locked him up in a very cold room, and

two police officers beat him by kicking and punching him. When Auntie Chen

bailed Liu out of jail, police told him that if he distributed flyers again, his

punishment would be more severe.

      Liu told the asylum officer that news of his arrest was broadcast throughout

the village. A village commissioner went to Liu’s house, told him he had

humiliated the village, and hinted at arresting him. As a result, Liu hid at a friend’s

house. The following month, on April 20, 2013, Liu distributed flyers again and

was almost arrested. Although police pursued him, he managed to escape.

      Liu stated that he feared returning to China because the village and the

police knew he distributed flyers. He feared he would be brutally beaten if he




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returned. The asylum officer found that Liu had a credible fear of persecution on

the basis of religion.



      2. Liu’s Asylum, Withholding of Removal, and CAT Application

      In August 2014, after the Department of Homeland Security charged Liu as

removable for lacking a valid entry document (a charge Liu conceded), Liu filed an

application for asylum, withholding of removal, and CAT relief based on religious

persecution. In his application, Liu repeated and elaborated upon many of the

specific details he provided in his credible fear interview. He also offered some

new information.

      Liu pinpointed the first time he attended church as November 24, 2012. He

recalled the March 18, 2013 distribution of flyers and added that the two church

members with him were Yung Hui Liu (who was arrested with Liu) and Rui Yu

Liu (who escaped). When police questioned Liu and Yung Hui Liu about the

flyers on this date, neither gave answers. Liu repeated that he was taken to a cold

room where he was beaten and kicked by two police officers. Three days after his

arrest, Liu’s grandmother asked Auntie Chen to bail him out for ¥5,000. Liu was

released, but not before police threatened that he would be jailed if he distributed

flyers again. On the way home, Auntie Chen told Liu that police had shut down

the church.


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      Liu also detailed the April 20, 2013 flyer distribution, in which he again was

joined by Yung Hui Liu. Both fled the police, and Liu went into hiding at his

friend Ou Xing’s house. Liu hid at Ou Xing’s house in Guantou Town, Fujian

Province, from April to November 2013. Liu noted that during this time, his

brother Wei En Liu also lived in Guantou Town. While Liu was in hiding, police

repeatedly visited the home he had shared with his grandmother. Police told Liu’s

grandmother that they knew he was distributing flyers again and threatened to

intern him at a labor camp for two years.

      While he was still hiding at Ou Xing’s house, Auntie Chen told Liu that

Yung Hui Liu had been arrested and sentenced to two years in a labor camp. Liu

feared the same fate, so in November 2013, with the help of his grandmother, he

paid a smuggler for passage to the United States. Since he has been in the United

States, Liu has freely practiced his religion at the Evangelical Formosan Church in

Orlando. He often called his grandmother in China, and she told him police were

still looking for him. Liu stated that he was afraid to return to China because he

feared he would be arrested and sent to a labor camp.

      3. Liu’s Supporting Documentation

      Liu filed numerous documents in support of his application. These included

a “detain warrant” dated March 18, 2013, stating that Liu’s local Public Security

Bureau was ordered to detain him for illegally attending Christian activities and


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distributing flyers, and noting that his detention expired three days later. Liu filed

a certificate of release, which reiterated that he had illegally distributed Christian

flyers, and a receipt for a bail payment of ¥5,000, both dated March 21, 2013.

      Liu also submitted letters in support of his application from his grandmother,

Yung Hui Liu’s father, Ou Xing, and Auntie Chen. Each of these letters

corroborated specific details in Liu’s statements, including: the date he first

attended church; the date on which he first distributed flyers and was arrested; that

he was beaten while detained; the date on which he almost was arrested a second

time; that he went into hiding from April to November 2013; and that police

searched for him while he was in hiding.

      Liu submitted reports regarding country conditions in China. The 2014

Annual Report of the Congressional-Executive Commission on China reported that

Chinese authorities continued to detain, imprison, and interfere with the religious

activities of members of Christian communities. The 2012 International Religious

Freedom Report for China contained similar information. The 2013 Human Rights

Report for China stated that prisoners and detainees were reported to have been

subjected to physical abuse and that forced labor remained a serious problem

wherein prisoners faced harsh and exploitative working conditions. It recounted at

least one specific incident in Liu’s home, Fujian Province, in which activists were

held for 33 hours without food and chained to a device meant to prevent them from


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falling asleep. Liu provided newspaper and internet articles that discussed the poor

conditions of labor camps and the restrictions on religious freedom in China.

      Finally, Liu submitted documentation of his religious activities since his

arrival in the United States, including his baptism certification and photos of his

baptism, an affidavit of a fellow church member describing his involvement with

the church, and a letter from Evangelical Formosan Church of Orlando stating that

he had attended the church regularly since February 23, 2014, and was baptized on

December 21, 2014.

      4. Liu’s March 2015 Amended Statement and Hearing Testimony

      At his hearing before the IJ, Liu filed an amended statement pertaining to his

application for asylum, withholding of removal, and CAT relief. In it, as relevant

here, he added (as he had stated in his credible fear interview) that when he was

hiding at Ou Xing’s house his grandmother had told him that not only police, but

also a village commissioner came looking for him and hinting that Liu should be

arrested because his conduct was a humiliation to the village.

      Liu’s testimony before the IJ again retraced with precision the story of his:

relationship with Auntie Chen, religious awakening, distribution of flyers, arrest

and detention, threats by police, second distribution of flyers, flight from police,

months of hiding, continuing threats by police, eventual smuggling to the United

States, and religious activities in his new home, Orlando. On cross-examination,


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Liu was questioned about his brother, who according to Liu’s application also lived

in Guantou Town from April to November 2013. Liu testified that his brother did

not live with him and his grandmother when Liu began going to church. Liu

further testified that his brother was also a church member and, at some point in

2014 when Liu was already in the United States, had distributed religious flyers in

China and was jailed for approximately three months. Liu confirmed that he was

in contact with his brother, who now also resided in Orlando, was seeking asylum

on religious persecution grounds, and attended Liu’s Orlando church once,

although he did not attend regularly and did not attend Liu’s baptism.

B. The IJ’s and BIA’s Decisions

      1. The IJ’s decision

      The IJ denied Liu’s application. After acknowledging that Liu’s “testimony,

for the most part, was consistent with the documents he provided and his prior

statement,” the IJ made an adverse credibility finding as to Liu’s testimony

because of the “late . . . revelation” that Liu’s brother also had been distributing

religious flyers, was jailed for doing so, and now resided in the United States.

Appendix at 18. The IJ faulted Liu for failing to mention his brother’s activities at

his credible fear interview, in his asylum application, in his amended statement, or

during direct examination at his hearing.




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      With respect to Liu’s December 2013 credible fear interview, the IJ noted

that although Liu testified that his brother was not arrested until sometime in 2014,

“the timeline is not clear to the Court given the respondent’s lack of overall

credibility.” Id. at 18-19. With respect to Liu’s August 2014 application, the IJ

surmised that “[b]y that time the Court can reasonably assume that the

respondent’s brother had himself been distributing flyers, had been detained for

three months, and that he had fled to the United States.” Id. at 19. For this same

reason, the IJ found notable Liu’s failure to mention his brother in his amended

statement or on direct examination at his hearing.

      The IJ observed that “[i]f the respondent’s brother is in fact in the United

States, the Court would fully expect that his brother would be called to testify on

respondent’s behalf.” Id. at 20. Liu’s “material omissions of any reference to his

brother and his brother’s experience and his failure to provide live testimony [from

his brother], if not at least an affidavit, also calls into question his supporting

documents,” which made no mention of Liu’s brother. Id. Thus, the IJ found,

these supporting documents were entitled to no weight. As a result of these

findings, the IJ denied Liu’s application for asylum. And, because Liu could not

meet his burden to demonstrate eligibility for asylum relief, he could not meet the

higher burden of showing his entitlement to withholding of removal or CAT relief.

      2. The BIA’s Decision


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      Liu appealed to the BIA, which affirmed the denial of Liu’s application.

The BIA agreed with the IJ’s adverse credibility determination, reasoning that

although Liu’s “testimony was relatively consistent with his prior statements,” his

failure to mention his brother’s experience until cross-examination was sufficient

to justify the determination that he was not credible. Id. at 6. The BIA also agreed

“that the omission of any narrative concerning the respondent’s brother from all of

the letters submitted by the respondent’s friends and family undermines the

credibility of those written statements.” Id. at 7.

      Relying on the fact that “an adverse credibility determination alone can be

sufficient to support a denial of asylum,” the BIA affirmed the IJ’s denial of

asylum. The BIA also affirmed the IJ’s denial of withholding of removal and CAT

relief, explaining that, “[i]n the absence of independently corroborating evidence,

the adverse credibility finding also precludes” Liu’s requests for such relief. Id.

      Liu petitions this Court for review.

                           II. STANDARD OF REVIEW

      When the BIA explicitly agrees with the findings of the IJ, we review both

decisions to the extent of their agreement. See Ayala v. U.S. Att’y Gen., 605 F.3d

941, 948 (11th Cir. 2010). Here, the BIA expressly agreed with the IJ’s adverse

credibility determination and finding that Liu’s supporting documents were of no




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value because they omitted any mention of his brother. Thus, as to those

conclusions, we review both the IJ and the BIA’s findings.

      We review factual findings, including credibility determinations, under the

substantial evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th

Cir. 2005). We will affirm findings that are “supported by reasonable, substantial,

and probative evidence on the record considered as a whole,” viewing “all

evidence in the light most favorable to the agency’s decision and draw[ing] all

reasonable inferences in favor of that decision.” Id. “We may not reweigh the

evidence from scratch, and we may reverse only when the record compels a

reversal.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010) (internal

quotation marks omitted).

                                III. DISCUSSION

      On appeal, Liu asserts that the IJ’s and BIA’s finding that his testimony was

incredible and corresponding conclusion that his supporting documents were

entitled to no weight are unsupported by substantial evidence. Thus, he argues, the

denial of his petition must be vacated and his case remanded for further

proceedings. For the reasons that follow, we agree. We first describe the relevant

legal framework; then, we analyze Liu’s petition within this framework.

A. Legal Framework




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      The Attorney General has the authority to grant asylum to a noncitizen who

meets the definition of “refugee” in the Immigration and Nationality Act (“INA”).

INA § 208(b)(1)(A). A refugee is defined as:

      any person who is outside any country of such person’s nationality . . .
      and who is unable or unwilling to return to, and is unable or unwilling
      to avail him or herself of the protection of, that country because of
      persecution or a well-founded fear of persecution on account of race,
      religion, nationality, membership in a particular social group, or
      political opinion.

Id. § 101(a)(42)(A). The applicant bears the burden of proving that he is a refugee

by presenting specific and credible evidence demonstrating that he (1) was

persecuted in the past based on one of these five protected grounds or (2) has a

well-founded fear that he will be persecuted in the future based on one of the

protected grounds. Id. § 208(b)(1)(B)(i); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,

1257 (11th Cir. 2006).

      To obtain withholding of removal, an applicant must show past persecution

or a clear probability of future persecution on account of a protected ground. Tan

v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). In other words, the

applicant must show that it is more likely than not that he will be persecuted,

which is a more stringent standard than the well-founded fear standard for asylum.

Id. Similarly, under CAT, the applicant for relief bears the burden of proving that

it is “more likely than not that he . . . would be tortured if removed to the proposed

country of removal.” 8 C.F.R. § 208.16(c).
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      An applicant’s testimony, if credible, may be sufficient to sustain his burden

of proof to demonstrate eligibility for asylum, withholding of removal, or CAT

relief without corroborating evidence. Ruiz, 440 F.3d at 1255. “If . . . the

applicant produces other evidence of persecution, whatever form it may take, the IJ

must consider that evidence, and it is not sufficient for the IJ to rely solely on an

adverse credibility determination in those instances.” Forgue, 401 F.3d at 1287.

When the IJ makes an adverse credibility finding, the applicant may obtain relief in

this Court only if he demonstrates either that the decision to deny his application

was unsupported by “specific, cogent reasons” or that was not based on substantial

evidence. Ruiz, 440 F.3d at 1255.

      Pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13, § 101, 119 Stat.

302, for applications like Liu’s filed after May 11, 2005, a credibility

determination may be based on the totality of the circumstances, including: (1) the

applicant’s demeanor, candor, and responsiveness; (2) the plausibility of the

applicant’s testimony; (3) the consistency between the applicant’s oral and written

statements, whenever made; (4) the internal consistency of each statement; (5) the

consistency of the applicant’s statements with other evidence in the record; and (6)

any inaccuracies or falsehoods in the applicant’s statements.

INA § 208(b)(1)(B)(iii).

      With these principles in mind, we review the merits of Liu’s petition.


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B. Liu’s Petition for Review

      Considering the evidence adduced in this case as a whole, we must reverse.

Neither the adverse credibility determination nor the decision to discount entirely

Liu’s supporting documentation was supported by substantial evidence; rather,

those findings were based on speculative assumptions unsupported by the record,

and in some cases contradicted by it. See Forgue, 401 F.3d at 1287.

      Liu was extremely detailed and strikingly consistent in each of his

statements, whether oral or written. Each time he told his story, he recounted the

same version of the events in the same order (even providing precise dates)

involving the same participants. There were remarkably few differences between

the several accounts Liu provided, and where there were differences—such as the

fact that a village commissioner, in addition to police, had come looking for him at

his grandmother’s house in April 2013—Liu corrected those differences without

prompting. Liu’s supporting documentation independently corroborated his

account of the events beginning with his attendance of church in China and

continuing through his church activities in Orlando. These documents did not

merely suggest that Liu was telling the truth: their detailed accounts—which

matched precisely Liu’s several statements—provided powerful corroborating

evidence of Liu’s story. Moreover, the documentary evidence Liu submitted

corroborated his claim that he likely would be persecuted if he returned to China.


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      Both the IJ and the BIA acknowledged that Liu’s statements were internally

consistent and consistent with his documentary evidence. And at no point did

either the IJ or the BIA indicate that Liu’s testimony was implausible or that his

demeanor suggested he may not be giving a truthful account. See

INA § 208(b)(1)(B)(iii). In denying Liu’s application, the IJ and BIA relied solely

on his failure to disclose without prompting his brother’s arrest and immigration to

the United States. This denial was based on several assumptions, including that:

(1) Liu’s brother had been arrested and jailed and had left China by the time Liu

gave his credible fear interview, completed his application and amended statement,

and testified before the IJ; (2) Liu knew during the stages leading up to his hearing

what had happened to his brother; and (3) Liu’s brother’s testimony would have

been material to Liu’s story such that its omission was a reason to deny Liu’s

application. These assumptions were not, however, based in evidence; rather, they

were based on speculation and an inaccurate reading of the record.

      The assumption that Liu’s brother had been arrested and detained and then

fled to the United States in time for Liu to mention these events at his credible fear

interview, in his asylum application, and at his hearing, is unsupported by specific,

cogent reasons or by substantial evidence. With respect to Liu’s failure to mention

his brother at his credible fear interview, that interview took place in 2013, and




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there is no evidence whatsoever that Liu’s brother had even been arrested at that

point in time.

      With respect to Liu’s August 2014 application for asylum, withholding of

removal, and CAT relief, Liu did in fact mention his brother. In his application,

Liu stated that his brother had lived in Guantou Town until the time that Liu fled

China in November 2013. The IJ simply assumed that Liu’s disclosure was

incomplete and omitted reference to his brother’s arrest, detention, and flight from

China, but this assumption was not based on any evidence. Liu testified on cross-

examination at the hearing that his brother was arrested in 2014, but when Liu

submitted his application, more than four months remained in 2014. So the

assumption that Liu’s brother had been arrested, detained for three months, and

had arrived in the United States by August of 2014 was based on speculation alone.

      Even if Liu’s brother’s arrest and detention had occurred by August 2014,

there is no evidence from which the IJ and BIA reasonably could have concluded

that Liu should have known of this fact. Liu and his brother did not live together

in China, and there is no evidence suggesting that they were in contact from the

time Liu immigrated to the United States until the time his brother arrived.

      The only point at which the evidence indicated that Liu should have known

of his brother’s fate was at the March 2015 hearing (the same date on which Liu

submitted an amended statement to his application). But even so, it was unclear


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that Liu’s brother’s story was material to his own. Although Liu’s testimony

demonstrated that he and his brother shared a similar life trajectory—they

participated in the Christian church in China, distributed flyers and were detained

for that activity, and sought asylum in Orlando—Liu’s brother’s story did not

meaningfully overlap with Liu’s. The two lived separately in China; Liu’s arrest,

detention, hiding, and flight to the United States all occurred before his brother was

arrested; and the two did not regularly attend the same church in Orlando. To the

extent Liu’s brother could have provided testimony that would have aided the IJ in

his decisonmaking—which is, at best, speculation—that testimony likely would

have been only moderately corroborative and would have paled in comparison to

the strength of the corroborating evidence Liu provided, down to arrest records

stating that Liu’s offense was distributing religious flyers and a receipt for the bail

Auntie Chen posted for him on March 21, 2013. For these reasons, the IJ and

BIA’s decision to fault Liu for failing to testify without prompting about his

brother was not based on specific, cogent reasons or on substantial evidence.

      Further, the record as a whole compels reversal. As we have discussed,

Liu’s remarkably consistent testimony was corroborated by documentation from

numerous sources. The IJ and BIA concluded that most of this documentation was

worthless because it too omitted mention of Liu’s brother, but there is no evidence

that any of the individuals who submitted statements in support of Liu’s


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application knew Liu’s brother’s experience or its relevance to Liu’s application.

Aside from these statements, the balance of Liu’s documentary evidence

indisputably corroborates his story without regard to his brother.

      Thus, the decision to deny Liu’s application based on an adverse credibility

determination and flawed corroborating evidence was not based on substantial

evidence. Rather, the record, viewed as a whole, compels that we reverse. We

remand for further proceedings consistent with this opinion.

      PETITION GRANTED.




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