11-3050-ag
Li v. Holder
                                                                                BIA
                                                                           Nelson, IJ
                                                                        A089 908 408

                UNITED STATES COURT OF APPEALS
                    FOR THE SECOND CIRCUIT

                           SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of May, two thousand twelve.

PRESENT:
         JON O. NEWMAN,
         JOSÉ A. CABRANES,
         RAYMOND J. LOHIER, JR.,
              Circuit Judges.
_____________________________________

XIULIAN LI,
         Petitioner,

               v.                                       11-3050-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_____________________________________

FOR PETITIONER:                Nathan Weill, New York, N.Y.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               William    C.    Peachey,    Assistant
                               Director; Mona Maria Yousif, Attorney,
                               Office of Immigration Litigation,
                               United States Department of Justice,
                               Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

GRANTED, and the matter is REMANDED for further proceedings.

    Petitioner   Xiulian   Li,    a    native   and   citizen   of   the

People’s Republic of China, seeks review of a June 30, 2011,

decision of the BIA affirming the May 21, 2009, decision of

Immigration   Judge   (“IJ”)   Barbara     A.   Nelson    denying    her

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).            In re Xiulian

Li, No. A089 908 408 (B.I.A. June 30, 2011), aff’g No. A089

908 408 (Immig. Ct. N.Y. City May 21, 2009).             We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

    Under the circumstances of this case, we have reviewed

both the IJ’s and the BIA’s opinions.       See Jigme Wangchuck v.

DHS, 448 F.3d 524, 528 (2d Cir. 2006).                The applicable

standards of review are well established.                See 8 U.S.C.

§ 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008).

    For asylum applications, like Li’s, governed by the REAL

ID Act, the agency may, considering the totality of the


                                 -2-
circumstances,       base    a    credibility         finding    on    an    asylum

applicant’s demeanor, the plausibility of her account, and

inconsistencies in her or her witness’s statements, without

regard to whether they go “to the heart of the applicant’s

claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

at 163-64.

    Li    sought     asylum       on    the    ground    that    she    had   been

subjected to two forced abortions. This claim, if true, would

have entitled her to asylum. See 8 U.S.C. § 1101(a)(42)(B).

The IJ made an adverse credibility finding, which was upheld

by the BIA, on two grounds.             First, the IJ concluded that Li’s

testimony evidenced lack of credibility.                  Second, the IJ was

concerned    that    Li     had    omitted      from    her     initial      asylum

application    the    fact       that    she    had    been   discharged      from

government    employment          for    violating      the   family     planning

policy.   We consider each ground separately.

    1. Li’s testimony.

    The      IJ’s    adverse           credibility      finding        was    based

significantly on two instances in which the IJ thought that

Li’s responses went beyond the scope of the questions and

admonished her for doing so. The first instance occurred when

Li was asked the somewhat open-ended question concerning why,


                                         -3-
at age 22, she was considered too young to lawfully bear a

child.    The following colloquy ensured:

       Q. [by Li’s counsel] Why were you too young?
       A. According to the local government, there was a
       regulation that you must be 24 and half years old
       and also a policy of late birth. And as long as you
       meet that standard, then you have to get a birth
       permit in order to have a child.    At that time I
       just did not know anything. When I went to register
       the marriage, none of the departments over there
       told me anything.

       JUDGE TO MS. LI
       Q. Ma'am, I think you're going way beyond the
       question that was asked. Please answer only what
       your attorney asks you.
       A. Yes.

       In fact, Li’s response endeavored to answer the question

and added only why she was unable to provide more information

to respond to the “why” question.     No admonition was called

for.

       The second instance occurred when Li was questioned about

her second forced abortion.     The following colloquy ensured:

       Q. [by counsel] What did they do?
       A. They forced me up -- they forced me into an
       operating room. I kept screaming very loudly and I
       said, please let me go, but no matter how I
       struggled physically or screaming, it, it had no
       use. Two nurses held me up to the operating table
       by my shoulders so I could not move. And then the
       doctor forcibly performed a D&C procedure on me. No
       anesthetic was injected. I felt like -- that my --
       someone had pulled out my intestine.




                               -4-
     JUDGE TO MS. LI
     Q.   All right, ma'am, again you're going beyond the
          question that was asked. This isn't supposed to
          be an open-ended narrative. Your attorney has
          done lots of this kind of case and he knows
          what questions to ask to get the information
          that he needs from you. So, if you would be
          patient and let him ask the question instead of
          just trying to tell your story in one felled
          [sic] swoop.


     Li’s answer was entirely appropriate to the open-ended

question,   “What   did   they   do?”     The   IJ’s   admonition    was

unwarranted.

     Had these admonitions not affected the IJ’s assessment of

Li’s credibility, we would not be overly concerned.          However,

our concern increases when we see the following passage in the

IJ’s oral decision:

    [T]he Court finds that there are some troubling
    aspects regarding the respondent's demeanor. During
    her   testimony,   partic    ularly   during   direct
    examination, the respondent would be asked a simple
    question and would give an extremely long narrative.
    In fact, it appeared to the Court that the respondent
    was giving a speech. The speeches would go on way
    beyond what the question asked for.

    The   two   colloquies   we    have   recounted    are   the    only

instances in Li’s examination where the IJ indicated that a

response exceeded the scope of the question.

    Our concern is further heightened by the BIA’s reasons for

affirming the IJ’s adverse credibility finding: “In making an


                                  -5-
adverse    credibility    determination,     the    Immigration     Judge

found,    inter   alia,   that   the   respondent   appeared   to    have

rehearsed her testimony and was hesitant and unresponsive in

certain points in her testimony. The Immigration Judge's

finding is supported by the record (see, e.g., Tr. at 11-16,

18, 26, 29-31, 33, 35).”

    We have examined each cited transcript reference and note

the following.     Within the first reference (pages 11-16) there

is nothing on pages 11, 12, or 15 that supports the BIA’s

characterization.     The only passage to which the BIA could be

referring on page 13 is Li’s response to the question as to

why she was considered too young to lawfully bear a child, a

response that, as we have pointed out, was not inappropriate.

The only passage to which the BIA could be referring on page

14 is Li’s response to how the second abortion was performed,

which was entirely appropriate.         The only passage to which the

Board could have been referring on page 16 is the following

colloquy:

    Q. Do you know why they [the Chinese authorities]
    changed the form of contraception?
    A. I don't understand the question.
    Q. Well, you had been taken birth control pills
    according to your application.     Then you stopped
    taking them, got pregnant and had your son. After
    that, you were -- after that, you had an IUD. Do you
    know why they changed the form of contraception that
    you were using?

                                  -6-
       A. At the time when I got married, I did not know
       about the regulations that would prevent me to have
       children and did not take any birth control measures,
       so other --
       Q. I'm not, I'm not talking about before you were on
       contraception.   My question is about why did they
       change the form of contraception?
       A. After I gave birth to this child, child, it was
       the regulation that half of year after their birth
       must wear an IUD.

       Although Li initially said she did not understand the

question, that was not an inappropriate response to a question

that she was not competent to answer.                      Nevertheless, she

responded within the limits of her knowledge.

       On pages 18 and 26, there is nothing that supports the

BIA’s characterization.          With respect to pages 29-31, the only

passage      that   might    arguably       have   concerned     the   IJ    and

therefore the BIA was one response on page 31 in which Li said

she    did    not   understand      the   question.        On   page   33,    the

following colloquy apparently troubled the IJ:

       Q. [by DHS counsel] Do you have any proof that you
       attend the church here in the United States?
       A. I go to church every Sunday, in the morning.
       Q. No, but do --
       JUDGE TO MS. LI
       Q. Ma'am, that's not the question. The question is do
       you have any evidence to show that you, in fact, do
       that?
       A. I don't have it because I haven't been baptized.

Although a simple “no” would have been the better response,

Li’s    two    answers      would   seem     to    merit   little,     if    any,


                                      -7-
criticism.    The last page of transcript cited by the BIA, page

35,   contains the following colloquy:

      JUDGE TO MS. LI
      Q. When did you first attend church in the U.S.?
      A. I even went last Sunday. When I came this morning
      the person was in charge in our church prayed for me.
      Q. All right, ma'am, perhaps you didn't understand
      the question. When was the first time you attended
      a church in the United States?
      A. First time? December -- I went in December 2007.
      Q. How long has your mother been a practicing
      Christian?
      A. My mother?
      Q. Yes, your mother.
      A. I -- I'm not sure when she joined the religion
      because my work was very, very busy and I accompanied
      her because she was in her 80s.
      Q. Ma'am, just answer the question I asked. As far as
      you know, when you were a child, did your mother
      practice Christianity?
      A. She hasn't practiced Christianity for not too
      long. She hasn't practiced Christianity for too long.

The IJ’s first question was not answered until the second

response, but the IJ’s remaining questions were answered

directly,    even   though    the   IJ    changed   the   question   after

admonishing Li to “just answer the question I asked.”

      We   understand   the    difficult     task    that   IJs   have   in

determining the credibility of asylum applicants, at least

some of whom are undoubtedly giving false testimony supplied

to them by the smugglers who arranged for their unlawful

entry.     We also recognize that the IJ has the opportunity to

observe the applicant and to assess her demeanor. See Lin v.

Gonzales, 446 F.3d 395 (2d Cir. 2006).              At the same time, we

                                    -8-
have an obligation to make sure that the questioning of an

applicant   is   fair   and   that   unwarranted   criticisms   of

legitimate responses do not create an unacceptable risk of a

flawed assessment of credibility. See Huang v. Gonzales, 453

F.3d 142, 148-50 (2d Cir. 2006).     From the colloquies we have

recounted, we conclude that that risk is present in this case.

    One further excerpt from the testimony also suggests that

the IJ might have permitted inappropriate questioning to color

her credibility assessment.    The following colloquy concerned

Li’s account of her second forced abortion:

    Q. [By Li’s counsel] Can you describe it, please?
    A. They did not inject me any anesthetic, the same as
    the first time. It felt like someone pulled out my
    intestine. Over there every, every cut I was made and
    I felt like -- so painful that I felt like I was
    dying.
    JUDGE TO MS. LI
    Q. I'm sorry, what cuts were made?
    A. It, it felt like -- my feeling was like they were
    making cuts, that's how I felt.
    Q. Was -- did this abortion feel different than the
    first one?
    A. It was also D&C procedure, the same feeling as the
    first time.
    Q. Did they make any cuts or did it just feel like
    they were making cuts?
    A. The doctor -- the nurses were there and when they
    were doing it, it felt like scraping and cutting.

Why a woman who had undergone a forced abortion without

anesthetic would be pressed to answer the question “Did they

make any cuts or did it just feel like they were making cuts?”

is not readily apparent.

                               -9-
      2. Omission of Li’s discharge from employment.

      As   the    IJ    and   the   BIA   noted,   Li’s    initial   asylum

application recited her two forced abortions but did not

mention that she was discharged from government employment for

violating the family planning policy.              Li testified that she

understood       that   the    forced     abortions   were     evidence    of

persecution, but that she did not think that being fired from

employment added anything to her claim.               She also explained

that after her lawyer told her that the firing was relevant to

her   claim,     she    amended     her   application     to   include    the

employment discharge.

      Although an omission can have a bearing on an applicant’s

credibility, see 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that

agency may base credibility determination on inconsistencies

between applicants statements, and “the consistency of such

statements with other evidence of record”), the IJ initially

commented on Li’s omission in a sympathetic manner:

           The respondent mentioned nothing about this in
      her written application for asylum, only that she was
      dismissed from her employer. If this were the only
      omission or inconsistency, the Court might find that
      it had been inadvertent, and the respondent had not
      offered it because she might not have considered it
      the worst form of persecution.     One could easily
      understand that a respondent would find an abortion
      to be a far more serious form of persecution than
      loss of employment.
           However, a loss of employment is hardly
      something to be forgotten or easily dismissed from
      memory, but there are other reasons that the Court
                              -10-
    has trouble with this serious omission.           The
    respondent's husband sent a letter to corroborate her
    claim.   He mentions absolutely nothing about her
    losing her position in August of 2006, and, of
    course, mentions nothing about her attempts to [be]
    reinstated. Her neighbor also does not mention it,
    which is troubling because the neighbor does seem to
    know a great deal about the respondent, including her
    pregnancies, her abortions, et cetera.     Even more
    disturbing is the fact that the respondent's co-
    worker did not mention in his or her letter that she
    was dismissed from their place of employment.
         Given these factors, the Court finds that the
    omission is more troubling on several levels,
    including the fact that it appears to the Court that
    perhaps the content of the letters was directed by
    the respondent when she initially filed her
    application for asylum. The Court also notes that in
    another continuation sheet, which contains simply the
    dates (places of employment for the respondent could
    not be fit on the 1-589), it indicates that her
    employment with that particular place ended in May of
    2006.   But when one considers all these factors
    together, this is a serious omission, and the Court
    finds that it is sufficient to find that her
    testimony is not credible.

    We are unable to follow the IJ’s logic.                    If it was

understandable      that   Li   would     regard    the    discharge     as

insufficient   to    augment    her     claim   based     on   two   forced

abortions, it is difficult to understand why the same omission

becomes more significant when it is made by her husband or

others supporting her application.

    In sum, we are left with sufficient doubt about the

fairness of the adverse credibility finding to warrant a

remand so that Li’s testimony may be assessed without the

troubling matters we have identified.              Although we have no

                                 -11-
doubt that the IJ could conscientiously make a new assessment

based on the existing record, we think the appearance of

justice is better served by requiring a different IJ to

conduct a renewed hearing on remand. See Huang, 453 F.3d at

150.

       For the foregoing reasons, the petition for review is

GRANTED, and the matter is REMANDED for further proceedings

consistent with this order.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                              -12-
