Yao Ren v. Eric H. Holder Jr.

Filing

FILED OPINION (PROCTER R. HUG, STEPHEN R. REINHARDT and BARRY G. SILVERMAN) DENIED. Judge: SR Authoring, FILED AND ENTERED JUDGMENT. [7863796]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



YAOGANG REN,
Petitioner,
ERIC H. HOLDER
General,

v.
Jr., Attorney
Respondent.




No. 08-71315
Agency No.
A098-469-035
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued August 1, 2009
Submitted June 30, 2011
San Francisco, California
Filed August 19, 2011
Before: Procter Hug, Jr., Stephen Reinhardt and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Reinhardt

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COUNSEL
Evangeline G. Abriel, Director, Legal Analysis, Research, and
Writing, Santa Clara University School of Law, Santa Clara,
Califoria; Kirt L. Iverson, Student Counsel, Santa Clara University School of Law, Santa Clara, Califoria, for the petitioner.

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Lance Lomond Jolley, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC;
David V. Bernal, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for
the respondent.

OPINION
REINHARDT, Circuit Judge:
I.
Yaogang Ren petitions for review of the denial of his application for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture.
Because he filed his application after May 11, 2005, his case
is governed by the credibility and corroboration standards set
forth in the REAL ID Act. Applying those standards, we hold
that the Immigration Judge’s (“IJ”) adverse credibility determination was impermissibly based on mischaracterizations of
Ren’s testimony as well as inconsistencies that, considering
the totality of the circumstances, were trivial. We further hold,
however, that Ren was given the proper notice and opportunity to respond to the IJ’s request for corroborative evidence.
Because Ren failed to provide that evidence and did not provide any explanation for his failure to do so, and because the
IJ was not compelled to conclude that Ren met his burden of
proof without that evidence, we deny his petition.
II.

Facts

Yaogang Ren, a native and citizen of China, entered the
United States on a nonimmigrant B-1 visa on February 27,
2005. On June 7, 2005, he filed an application for asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”). In the statement submitted with his

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asylum application, and in his testimony before the IJ, he gave
the following account of the events that led him to the United
States and the subsequent relevant occurrences.
In 2003, at a low-point in Ren’s life, when the spread of
SARS had forced him to close his restaurant and he found
himself out of work and depressed, a friend introduced him to
Christianity. At his friend’s urging, Ren began to participate
in underground church meetings, which were held in different
private homes, including Ren’s, on a rotating basis. At those
meetings, Ren “spread Gospel.” Soon, several members of the
church helped him buy a truck, which allowed him to start a
business transporting goods, and life started “getting better.”
In 2004, Ren’s church activities came to the attention of the
local police. Two police officers came to his home, placed
him under arrest, and accused him of “spreading [an] evil cult
and host[ing] superstitious gatherings at home to poison the
innocent people.”
The police detained Ren for five days. On the first day, two
officers interrogated him for one to two hours. Ren told the
officers that “the end of the world is coming and that God is
going to come down to the earth.” The officers told Ren that
he was “blinded by the religion.” During the interrogation,
one of the officers picked up an ashtray and threw it at him.
As Ren choked from breathing in the ashes, the officers
started punching him and beating him with a baton. Ren was
beaten “so badly [he] was on the floor. [He] wouldn’t dare
come up.” Later, the officers demanded that he write a confession. When he refused, the officers deprived him of food and
water. At another point, the officers told him that his “brain
[wa]s damaged” and he needed to be “disinfect[ed]” by “communist sunshine.” They forced him to stand in the hot sun
while wearing a raincoat. He sweated profusely and eventually fainted.
Ren was released on the fifth day of his detention, after his
wife paid bail and he gave the police a letter in which he

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promised to “break away with Christianity and stop spreading
Gospels.” The police then placed him under residential surveillance, and required him to check in with them every Monday. During these check-ins, police taunted him with
comments like, “Why don’t you help me to call Jesus here?
You kneel down and bow to me twice. I can help you then.”
The police also confiscated the truck that he had been using
for his delivery business, asserting that it did not pass the
annual inspection test and was, therefore, illegal.
Unable to work or practice his religion, Ren decided that he
could no longer remain in China. He secured a visa through
a friend who solicited a “snakehead,”1 and set out for the U.S.,
leaving his wife and daughter behind.
Since arriving in the U.S., Ren has been in touch with his
wife by phone. She informed him that the police had been to
their house looking for him and that she had denied knowing
where he was. The police were “very mad at [his] running
away,” and had ordered him to come back immediately to
“accept the judgment of the Party” for exposing his true face
to “oppose the Party and the Government.” Ren “dare[s] not
go back to China” for fear that he will be persecuted due to
his involvement with Christianity.
Within one month of arriving in the United States, Ren
became a member of the United Christian Church in Hacienda
Heights, California. He attends church often, although he
sometimes has to miss services in order to perform odd jobs
that he takes on to support himself.
III.

Proceedings Below

After he applied for asylum, Ren was interviewed by an
1

Snakeheads are smugglers who transport Chinese immigrants from
China to the United States for a fee. See Zheng v. Ashcroft, 332 F.3d 1186,
1189 (9th Cir. 2003).

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asylum officer; that officer referred him to removal proceedings. On July 19, 2005, Ren was served with a Notice to
Appear and charged with removability pursuant to 8 U.S.C.
1227 § (a)(1)(B) for overstaying his non-immigrant visa.
Ren first appeared before an IJ on September 1, 2005. He
conceded removability, but continued to seek asylum, withholding of removal, and CAT protection. On May 16, 2006,
the IJ held a merits hearing, during which Ren testified. The
IJ was not “prepared to issue a decision” on that day, so she
recessed the hearing until May 26, 2006. On that date, the IJ
informed Ren that he had not yet met his burden of proof, and
that it was “really important for him to have corroborating
evidence in this case.” She then granted a continuance to
allow Ren to gather specific corroborating evidence. On October 31, 2006, when the hearing resumed and Ren failed to
provide the requested evidence, the IJ determined that he had
failed to meet his burden of proof to show past persecution or
a well-founded fear of future prosecution, and denied his
application for asylum, as well as all other relief. The IJ based
her decision on two alternative grounds. First, she made an
adverse credibility determination based on “inconsistencies
between [Ren’s] testimony and his Declaration, as well as the
inherent implausibility of his claim in comparison to his
actions.” Second, she concluded that, even assuming Ren’s
testimony had been credible, he “ha[d] failed to meet his burden of proof as he has failed to provide the readily available
corroborating evidence in support of his claim.”
Ren timely appealed the IJ’s decision to the BIA, which
affirmed the IJ without opinion. Ren then filed a timely petition for review with this court.
IV.

Jurisdiction and Standard of Review

This court has jurisdiction under 8 U.S.C. § 1252 to review
final orders of removal by the BIA. Where, as here, the BIA
summarily adopts the IJ’s decision without opinion pursuant

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to 8 C.F.R. § 1003.1(e)(4), we “review the IJ’s decision as if
it were the BIA’s decision.” Zheng v. Ashcroft, 397 F.3d
1139, 1143 (9th Cir. 2005). The IJ’s findings of fact are
reviewed under a “substantial evidence standard,” Khan v.
Holder, 584 F.3d 773, 776 (9th Cir. 2009), and “are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The IJ’s
determination that Ren failed to meet his burden of proof is
also conclusive subject to application of that same standard.
INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992).
The government argues that we lack jurisdiction to review
the IJ’s “dispositive corroboration finding” — and, consequently, the entire petition — because Ren failed to exhaust
his administrative remedies by challenging that finding before
the BIA. We disagree.
“Because [Ren] raised his claims [before the BIA] pro se,
we construe them liberally.” Agyeman v. INS, 296 F.3d 871,
878 (9th Cir. 2002) (citing Estelle v. Gamble, 429 U.S. 97,
106 (1976)). “We do not employ the exhaustion doctrine in a
formalistic manner,” Figueroa v. Mukasey, 543 F.3d 487, 492
(9th Cir. 2008), especially where the petitioner is pro se,
Agyeman, 296 F.3d at 878; general contentions can suffice as
long as they “put the BIA on notice” of the contested issues.
Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th
Cir. 2007). In fact, “[p]etitioners need not ‘argue’ anything so
long as the issue is presented to the BIA.” Figueroa, 543 F.3d
at 493.
Ren did not file a brief before the BIA. In his notice of
appeal, in addition to challenging the credibility finding, Ren
stated, “I believe that I did establish that my life/freedom
would have been threatened in China on account of my strong
beliefs and practice of Christianity.” Although he did not use
the specific word “corroboration,” it was clear that he was
challenging the IJ’s determination that he had failed to meet
his burden of proof or, in other words, that he had failed to

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“establish” that he had suffered past persecution or had a
well-founded fear of future persecution.
The IJ had explicitly described her corroboration finding as
a finding that Ren had “failed to meet his burden of proof.”
By stating that he believed that he had met his burden of
proof, Ren raised a specific challenge to the IJ’s corroboration
determination. Ren did not merely assert that the IJ’s decision
was wrong without identifying the basis for his challenge. A
pro se petitioner is not required to use the precise legal terminology “I met my burden of proof”; Ren’s statement that he
established his claim is more than sufficient to make clear the
basis of his challenge. See Vizcarra-Ayala v. Mukasey, 514
F.3d 870, 874 (9th Cir. 2008) (petitioner’s argument was
properly exhausted even though it challenged the wrong
ground for removal because BIA had sufficient notice that he
“intended to challenge the ground on which he was ordered
removed.”) We therefore conclude that Ren’s pro se notice of
appeal, while possibly “inartful[ ],” provided the BIA with
“adequate opportunity to correct any errors occurring in the
proceedings below.” Agyeman, 296 F.3d at 877-78. Accordingly, the exhaustion requirement is satisfied and we have
jurisdiction to review Ren’s petition.
V.

Adverse credibility
A.

[1] As this court recently explained at length, the REAL ID
Act established new standards for adverse credibility determinations in proceedings on applications for asylum, withholding of removal, and CAT relief that, like Ren’s, were
submitted on or after May 11, 2005. See Shrestha v. Holder,
590 F.3d 1034 (9th Cir. 2010). The primary change was that
the REAL ID Act abrogated this circuit’s rule that inconsistencies that do not go to the heart of an applicant’s claim may
not support an adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii) (“[A] trier of fact may base a credibility

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determination on . . . any inaccuracies or falsehoods in [the
applicant’s] statements, without regard to whether [they] go[ ]
to the heart of the applicant’s claim.”). Under the REAL ID
Act, the IJ may base an adverse credibility determination on
any relevant factor that, considered in light of the totality of
the circumstances, can reasonably be said to have a “bearing
on a petitioner’s veracity.” Shrestha, 590 F.3d at 1044. Conversely, “[t]rivial inconsistencies that under the total circumstances have no bearing on a petitioner’s veracity should not
form the basis of an adverse credibility determination.” Id.
Although the REAL ID Act expands the bases on which an
IJ may rest an adverse credibility determination, it “does not
give a blank check to the IJ enabling him or her to insulate an
adverse credibility determination from our review of the reasonableness of that determination.” Id. at 1042.2 We must not
forget that the stakes in asylum proceedings are high and that
serious errors in decisions issued by overworked immigration
judges and BIA officials are not unusual. Cf. Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (observing that
“[r]epeated egregious failures of the Immigration Court and
the Board to exercise care commensurate with the stakes in an
asylum case can be understood, but not excused, as consequences of a crushing workload . . . .”).
[2] The REAL ID Act did not alter our “substantial evi2
As we noted in Shrestha, “concerning credibility, the REAL ID Act’s
principal purpose was to eliminate [our prior] limitation . . . on the type
of inconsistencies upon which an IJ could rely in assessing credibility.”
Shrestha, 590 F.3d at 1042 n.3 (internal quotation marks omitted). That is,
“[t]he REAL ID Act implemented an important substantive change concerning the kinds of inconsistencies that may give rise to an adverse credibility determination,” but it “did not strip us of our ability to rely on the
institutional tools that we have developed” for reviewing an IJ’s credibility
determinations. Id. at 1042-1043. So we have continued to rely on other
aspects of our pre-REAL ID Act caselaw concerning credibility when
reviewing post-REAL ID Act asylum applications. See, e.g., id. at 1044
(citing Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009)).

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dence” standard of review for adverse credibility determinations. Shrestha, 590 F.3d at 1042. In order to continue to
make this review possible, IJs remain obligated to provide
“specific and cogent reasons supporting an adverse credibility
determination.” Id.
[3] As explained above, those reasons must consist of
something more than “[t]rivial inconsistencies that under the
total circumstances have no bearing on a petitioner’s veracity.” Id. at 1044. In reviewing the IJ’s adverse credibility
determination, this court “must . . . take into account the totality of the circumstances, and should recognize that the normal
limits of human understanding and memory may make some
inconsistencies or lack of recall present in any witness’s
case.” Id. at 1044-45. As Judge Posner wrote for the Kadia
Court, “[a]nyone who has ever tried a case or presided as a
judge at a trial knows that witnesses are prone to fudge, to
fumble, to misspeak, to misstate, to exaggerate. If any such
pratfall warranted disbelieving a witness’s entire testimony,
few trials would get all the way to judgment.” 501 F.3d at
821. Finally, we note that the consistency of the applicant’s
statements with the reports of the Department of State on
country conditions is among the relevant factors that the IJ
must consider in his review of the totality of the circumstances. 8 U.S.C. § 1158(b)(1)(B)(iii).
B.
[4] With these rules in mind, we turn to the adverse credibility determination before us. The IJ cited five supposed
inconsistencies or implausibilities as the basis for her determination that Ren was not credible.3 We discuss each in turn.
See Kaur v. Ashcroft, 379 F.3d 876, 885 (9th Cir. 2004).
3
We are in a better position to review an adverse credibility finding
where, as here, the finding is based on documentary evidence rather than
any finding regarding the applicant’s demeanor. See Kin v. Holder, 595
F.3d 1050, 1056 (9th Cir. 2010); see also Kadia, 501 F.3d at 820; Tun v.
INS, 445 F.3d 554, 563 (2d Cir. 2006).

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[5] First, the IJ found it “significant” that, in Ren’s written
statement, he had declared that he was placed in a raincoat
and told to stand outside in the heat until he fell unconscious
on the third day of his detention, whereas in court he testified
that the incident took place on the second day. This inconsistency is manifestly trivial. We have previously recognized
that victims of abuse “often confuse the details of particular
incidents, including the time or dates of particular assaults and
which specific actions occurred on which specific occasion.”
Singh v. Gonzales, 403 F.3d 1081, 1091 (9th Cir. 2005) (citing Deborah Davis & William C. Follette, Foibles of Witness
Memory for Traumatic/High Profile Events, 66 J. Air L. &
Com. 1421, 1514-15 (2001)). Thus, “the ability to recall precise dates of events years after they happen is an extremely
poor test of how truthful a witness’s substantive account is.”
Id. Although the REAL ID Act now gives immigration judges
the power to consider any inconsistency in evaluating an
applicant’s credibility, the power to consider any inconsistency “is quite distinct from the issue of whether the inconsistencies cited support an adverse credibility determination.”
Shrestha, 590 F.3d at 1043 (quoting Scott Rempell, Credibility Assessments and the REAL ID Act’s Amendments to Immigration Law, 44 Tex. Int’l L.J. 185, 206 (2008)). As explained
above, to support an adverse credibility determination, an
inconsistency must not be trivial and must have some bearing
on the petitioner’s veracity. Id. at 1044. As we have repeatedly held, “minor discrepancies in dates that . . . cannot be
viewed as attempts by the applicant to enhance his claims of
persecution have no bearing on credibility.” Singh, 403 F.3d
at 1092 (quoting Damaize-Job v. INS, 787 F.2d 1332, 1337
(9th Cir. 1986)). Considered under the totality of the circumstances, Ren’s uncertainty regarding whether he was made to
pass out on the second or the third day of his detention says
nothing about his truthfulness or the overall reliability of his
account, nor was it an attempt to enhance his claims. Accordingly, it may not form a basis for an adverse credibility determination.

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[6] Second, the IJ found that Ren’s inability at the merits
hearing “to provide even the month or the year [of his arrest]
seriously undermines his credibility.” We disagree, particularly because the IJ’s characterization of Ren’s testimony is
inaccurate. In his declaration, Ren stated that he was arrested
on July 13, 2004. When questioned during his hearing, he
could not provide the exact date of the arrest but stated that
“four, five, [or] six months” had passed between his arrest and
the date he left China for the United States. Ren left China on
February 27, 2005. His testimony therefore narrowed the time
frame of his arrest to a roughly accurate three-month period.4
Accordingly, the IJ’s conclusion that Ren had not provided
“the month or the year” of his arrest was mistaken. As we
explained above, given the recognized difficulty that people
in general, and victims of abuse in particular, have with
recalling dates, an asylum applicant’s failure to be specific
about the date of a traumatic experience is rarely probative of
his or her veracity. See Singh, 403 F.3d at 1090-92. In this
case, considering the totality of the circumstances, including
the fact that Ren’s testimony regarding his arrest date was
roughly consistent with his declaration and narrowed that date
to within a three-month time frame, his inability to provide a
higher degree of specificity is not meaningful.
[7] The third inconsistency the IJ noted also concerned a
date, that of Ren’s baptism in China. Ren initially testified
that he was baptized on October 17, 2004. Shortly thereafter,
the IJ asked him again about the date of his baptism, and Ren
corrected himself, replying, “2003 or 2004, October 17,
2003.” He then adhered to the 2003 date, which is consistent
with the baptismal date in his declaration. When asked why
he had initially given the year as 2004, Ren explained that he
simply made a mistake the first time — that he “remember4

Depending on whether the month of arrest and the month of departure
are counted in determining how many months “passed” between the two
events, Ren’s testimony narrowed his arrest date to the three-month period
from either July to September or August to October of 2004.

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[ed] it wrong” and “said it wrong.” The IJ found Ren’s testimony on his baptismal date to be “questionable at best,” and
found it “unpersuasive” that Ren referred to this as a “monumental day in his life” and yet “made a mistake” about the
date. In coming to this conclusion, the IJ once again mischaracterized Ren’s testimony. The IJ stated,
He initially testified that he was baptized on October
17, 2004. The Court then asked him if he is certain
about that date considering that the Declaration
stated it occurred in 2003. At which point the
Respondent testified that he is not sure. It could be
2003 or 2004.
The IJ’s account is disturbingly inaccurate. In reality, the IJ
merely asked Ren again when he was baptized, without noting
any inconsistency between his prior testimony and his declaration. At that point, Ren voluntarily corrected himself, and
then repeated the 2003 date several times. The IJ’s version of
events, which includes her leading Ren to change his testimony to cure the alleged inconsistency with his declaration,
simply has no basis in the record.
In reviewing an adverse credibility determination, “the mistakes that witnesses make in all innocence must be distinguished from slips that, whether or not they go to the core of
the witness’s testimony, show that the witness is a liar or his
memory completely unreliable.” Kadia, 501 F.3d at 822.
Here, Ren’s initial error regarding the year of his baptism was
quite clearly a quickly-corrected innocent mistake. As such,
it cannot form the basis for an adverse credibility determination.
[8] The IJ next found that Ren’s testimony regarding the
regularity of his church attendance “seriously undermines
[his] credibility” by demonstrating “the inherent implausibility of his claim in comparison to his actions.” See 8 U.S.C.
§ 1158 (b)(1)(B)(iii). Yet again, the IJ mischaracterizes Ren’s

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testimony. Ren stated that he attends church on a weekly
basis, usually on Friday evenings and sometimes also on Sundays. He explained that sometimes he misses services because
he has to perform odd jobs to support himself, and occasionally those jobs conflict with his time of church attendance. He
testified that he attends services “every time when the friend
at church has a car to come pick [him] up.” He further
explained that “[e]very time [the church] would send a car . . .
including the Friday night. It’s the same way, they come to
fetch us.”
The IJ interpreted Ren’s statements to mean that church
attendance was a “low priority” for him and inferred that Ren
was not a committed Christian because he only went to
church “if he ha[d] no other plans for his day” and was
unwilling to “take public transportation to church or join[ ] a
church that is within walking distant [sic] to [him].” It is clear
from the record, however, that Ren said only that he sometimes has to miss services because of work conflicts, and that
he takes advantage of the transportation services regularly
provided by the church. That Ren must occasionally miss
church services in order to sustain his livelihood, or that he
gets a ride to church rather than taking the bus, in no way
undermines the genuineness of his belief or the importance to
him of living in a country where he can freely practice his religion.5 The IJ’s findings to the contrary are entirely speculative
and do not constitute substantial evidence. See Shah v. INS,
220 F.3d 1062, 1069 (9th Cir. 2000).
[9] Finally, the IJ found Ren not credible because his
“knowledge of Christianity was at best less than basic.” The
IJ found that Ren’s recitation of the Lord’s Prayer was
5

Moreover, there are many reasons why he may have joined that church,
rather than another church closer to his house, including that it “catered
to Chinese individuals like Mr. Ren.” The IJ’s belief that a church within
walking distance would have been better suited for Ren is pure speculation.

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“clearly incorrect as [the prayer] had references to [Ren] and
his desire to bring his family to the United States.” The record
on this issue contains a confusing exchange between Ren and
the government attorney.6 It is not clear whether Ren understood that he was being asked to recite the particular prayer
known as the “Lord’s Prayer” rather than to offer a prayer to
the Lord.7 In addition, the IJ could only speculate that the
“Lord’s Prayer” was called by the same name in China; no
basis for that conclusion is found in the record.
In general, questioning an applicant on his knowledge of
religious doctrine to determine if he is a true believer is not
an appropriate method of determining eligibility for asylum.
As the Second Circuit has recognized:
6

The exchange was as follows:
Government Attorney: Do you know the Lord’s Prayer?
Ren: Yes, I know.
Government Attorney: Can you say it for us?
Ren: Prayer? Yes, I can say it.
Government Attorney: Will you please recite it?
Ren: Father above thank you. Bring us a peaceful day every day.
And thank you. Bless my whole family, my wife, my son, my
child, my friends. They have a peaceful day and every day. And
thank you for keeping me in America for my future path. Please
help me above prayer, by the name of God. Amen.

(emphasis added)
7
We note that translation difficulties may have led to this confusion. At
one point Ren’s attorney pointed out that the interpreter was saying the
words “Lord’s Prayer” in English, although the interpreter said that she
was also translating the words after saying them in English. At another
point, the attorney noted that Ren’s answer to a question may have been
“lost in the translation.” The IJ took umbrage at this suggestion, and said
she didn’t “appreciate any sort of—implicit at least, attack on the interpreter that occurred.” We have previously noted that “faulty or unreliable
translations can undermine evidence on which an adverse credibility determination is based.” He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003).

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[b]oth history and common sense make amply clear
that people can identify with a certain religion, notwithstanding their lack of detailed knowledge about
that religion’s doctrinal tenets, and that those same
people can be persecuted for their religious affiliation. Such individuals are just as eligible for asylum
on religious persecution grounds as are those with
more detailed doctrinal knowledge.
Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006); see also
Yan v. Gonzales, 438 F.3d 1249, 1255 (10th Cir. 2006) (“[A]
detailed knowledge of Christian doctrine may be irrelevant to
the sincerity of an applicant’s belief; a recent convert may
well lack detailed knowledge of religious custom.”) (citing
Ahmadshah v. Ashcroft, 396 F.3d 917, 920 n.2 (8th Cir.
2005)).
Given that the record reveals no evidence of what the
Lord’s Prayer is called in China or whether someone of Ren’s
background would have learned that prayer, the fact that Ren
did not accurately recite it says nothing about the “inherent
plausibility” of his claim. While giving unwarranted significance to Ren’s failure to recite the “Lord’s Prayer,” the IJ
overlooked other testimony that did reflect Ren’s knowledge
of Christianity. Ren accurately answered that Adam and Eve
were in the Garden of Eden and that Jesus died on the cross,
and explained that “Christianity is belief in God, belief in the
end of the world,8 believes [sic] Jesus is the only Savior.” In
light of the totality of this testimony, and the problems with
doctrinal questioning generally, we conclude that Ren’s failure to recite the Lord’s Prayer accurately is trivial and does
not support an adverse credibility determination.
8

See, e.g., Matthew 24.

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C.
[10] Under the REAL ID Act, even minor inconsistencies
that have a bearing on a petitioner’s veracity may constitute
the basis for an adverse credibility determination. Shrestha,
590 F.3d at 1044. In this case, however, the IJ’s adverse credibility determination rested largely on mischaracterizations of
Ren’s testimony that are belied by the record.9 To the extent
that the inconsistencies and implausibilities cited by the IJ do
exist, they are manifestly trivial and have no bearing on Ren’s
veracity.
[11] Aside from these trivial inconsistencies, Ren’s testimony was overwhelmingly consistent with both his prior
statements and with the country reports that he submitted as
supporting evidence. The 2005 State Department Country
Report on China, which Ren submitted into evidence at his
hearing, confirms that the Chinese government had “continued its repression of groups that it determined to be ‘cults’ ”
and that “[a]uthorities frequently disrupted [Christian] house
church meetings and retreats and detained leaders and church
members.” It further confirms that detained church members
were at times subject to physical abuse and extended imprisonment. Consistency with the country reports provided by the
Department of State is one of the enumerated factors to be
9
The numerous inaccuracies in the IJ’s decision may be a byproduct of
the common practice among immigration judges of reading oral decisions
from the bench. We do not comment on whether such a practice is advisable or whether, under present circumstances, any practical alternative
exists. We do caution immigration judges, however, to take care to ensure
that the facts that they are relying on are consistent with the record. We
cannot on the one hand require an asylum applicant to be precise about
every major or minor factual detail of his claim, and then on the other
hand tolerate major factual inaccuracies in the decision that denies that
claim. As we discussed above, immigration judges are overworked and
understaffed, through no fault of their own. It is incumbent upon them,
however, to exercise the utmost care in rendering their decisions, particularly given the gravity of their responsibility and the deference we must
give their decisions on appeal.

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considered by the IJ in evaluating the “totality of the circumstances” for a credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii).
We conclude that, “[c]onsidering the totality of the circumstances,
and
all
relevant
factors,”
8
U.S.C.
§ 1158(b)(1)(B)(iii), the inconsistencies cited by the IJ are,
both on their own and in the aggregate, manifestly trivial.
Because the IJ’s adverse credibility determination thus rests
on impermissible grounds, we reverse that determination and
deem Ren’s testimony credible. See Kaur, 379 F.3d at 890.
VI.

Corroboration

Having concluded that the IJ’s adverse credibility determination was not supported by substantial evidence, we now
consider whether Ren’s application was nonetheless properly
denied on the alternative ground that he failed to provide sufficient corroborating evidence when requested to do so, and
therefore failed to meet his burden of proof.
A.
[12] In addition to changing the standards for adverse credibility determinations in asylum proceedings, the REAL ID
Act altered this court’s rules regarding when an asylum applicant may be required to provide corroboration to meet his burden of proof. Prior to the REAL ID Act, we had long held
“that the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application.” Kataria v. INS, 232 F.3d 1107, 1113
(9th Cir. 2000); Ladha v. INS, 215 F.3d 889, 901 (9th Cir.
2000) (collecting cases). But, as we recently recognized,
“Congress abrogated these holdings in the REAL ID Act of
2005.” Aden v. Holder, 589 F.3d 1040, 1044 (9th Cir. 2009).
In Aden, we found that “[t]he statutory phrase ‘[The testimony
of an applicant] may be sufficient to sustain the applicant’s

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burden without corroboration’ implies that the testimony may
not be sufficient.” Id. (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).
In this case, after hearing the evidence presented, principally Ren’s testimony, the IJ first adjourned the hearing for
ten days and then granted a five-month continuance to enable
Ren to obtain corroborating evidence of his arrest in China
and his religious activity in the United States. In granting the
continuance, the IJ stated that Ren had not yet met his burden
of proof, and advised Ren that under the REAL ID Act, he
was required to provide further corroboration in order to do
so. The IJ made clear the evidence that would serve to corroborate his past persecution in China: a bail receipt that Ren had
testified was available and would show that he had in fact
been arrested. The IJ also made clear the evidence that would
corroborate his current practice of Christianity: testimony
from his pastor and a certificate documenting his baptism in
the United States. At the third hearing, Ren failed to submit
any of these three items of evidence. The IJ did not ask Ren
why he had failed to submit any of them, and Ren did not
offer any explanation. The IJ concluded, however, that Ren
had failed to meet his burden of proof because he had failed
to provide the requisite corroborating evidence or explain why
he had failed to do so.10
B.
[13] We must first decide whether under the REAL ID
Act, the IJ, having concluded that corroborative evidence was
necessary, was required to give Ren notice of that decision
and provide him with an opportunity to obtain the required
evidence or explain his failure to do so. A plain reading of the
statute’s text makes clear that an IJ must provide an applicant
with notice and an opportunity to either produce the evidence
10

The IJ also found that Ren’s submission of two letters from church
leaders, along with the remainder of the record, was not sufficient to meet
his burden of proof.

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or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof.
The relevant subsection of Act provides in full:
The testimony of the applicant may be sufficient to
sustain the applicant’s burden without corroboration,
but only if the applicant satisfies the trier of fact that
the applicant’s testimony is credible, is persuasive,
and refers to specific facts sufficient to demonstrate
that the applicant is a refugee. In determining
whether the applicant has met the applicant’s burden,
the trier of fact may weigh the credible testimony
along with other evidence of record. Where the trier
of fact determines that the applicant should provide
evidence that corroborates otherwise credible testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably obtain the evidence.
8 U.S.C. § 1158(b)(1)(B)(ii).
The Act requires that the IJ first “determin[e] whether the
applicant has met the applicant’s burden, . . . weigh[ing] the
credible testimony along with the other evidence of record.”
8 U.S.C. § 1158(b)(1)(B)(ii). The statute then goes on to
address a subset of such determinations: those that find an
applicant’s testimony credible, but nonetheless insufficient to
meet his burden.11 In such cases, the statute continues,
“[w]here the trier of fact [i.e., the IJ] determines that the
applicant should provide evidence that corroborates otherwise
credible testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably
obtain the evidence.” Id. (emphases added).
11

That is the case here, because even though the IJ found Ren not credible, the IJ’s ruling requiring corroboration was a part of an alternative
holding that assumed that Ren’s testimony was credible.

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[14] We will evaluate each part of the relevant statutory
sentence in turn. First, it is only when the IJ determines that
such corroborative evidence is necessary that the applicant
must then provide it. “Where” . . . in this context is equivalent
to “if” or “when,” see Bryan A. Garner, A Dictionary of Modern Legal Usage 928 (2d ed. 1995); accord Black’s Law Dictionary 1596 (6th ed. 1990) (“If; in the case of; in the event
that.”). Once the IJ has decided that he is not persuaded by the
applicant’s otherwise credible testimony, he may “determine[ ] that the applicant should provide evidence that corroborates” that testimony. 8 U.S.C. § 1158(b)(1)(B)(ii)
(emphasis added.) “Congress’s use of a verb tense is significant in construing statutes.” United States v. Wilson, 503 U.S.
329, 333 (1992). Here, the Act does not say “should have provided,” but rather “should provide,” which expresses an
imperative that the applicant must provide further corroboration in response to the IJ’s determination. The applicant cannot act on the IJ’s determination that he “should provide”
corroboration, of course, if he is not given notice of that determination until it is too late to do so.
[15] Second, the grammatical structure of the controlling
clause makes the provision’s meaning absolutely clear. The
statute requires that corroborating evidence “must be provided” in the event that the IJ determines that it should be provided. Again, this language focuses on conduct that follows
the IJ’s determination, not precedes it, as the phrase “must
have been provided” would do, and as with the clause above,
the statute’s future directed language means that the applicant
must be informed of the corroboration that is required. Third,
the statute goes on to excuse an applicant from satisfying the
IJ’s request for corroboration if he “does not have the evidence and cannot reasonably obtain it.” This language is
present- and future-oriented as well; the statute does not say
“unless the applicant did not have the evidence and could not
have reasonably obtained the evidence.” Therefore, if the IJ
decides that the applicant should provide corroboration, the
applicant must then have an opportunity to provide it, or to

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explain that he does not have it and “cannot reasonably obtain
it.” It would make no sense to ask whether the applicant can
obtain the information unless he is to be given a chance to do
so.
Accordingly, the statute is clear. An applicant must be
given notice of the corroboration required, and an opportunity
to either provide that corroboration or explain why he cannot
do so.12 Because “the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843 (1984).13
12

This does not necessarily require two hearings. If the applicant states
at the first hearing that he does not have the evidence and cannot reasonably obtain it, the IJ should grant him an opportunity at that point to state
why he cannot reasonably obtain it. In such a case, a continuance to obtain
the evidence would be unnecessary; the IJ must then evaluate the applicant’s explanation and determine on the record whether the evidence is
reasonably obtainable or whether other evidence might suffice. See ElSheikh v. Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004) (citing Diallo v. INS,
232 F.3d 279, 287 (2d Cir. 2000)).
13
The Seventh Circuit recently held that no notice or opportunity to provide corroborative evidence was required, principally for policy reasons:
primarily that reading the statute to provide for notice and an opportunity
to respond would “necessitate two hearings” and that the DHS is already
overburdened. Abraham v. Mukasey, ___ F.3d ___, No. 10-2256, 2011
WL 2138149 at *6 (7th Cir. June 1, 2011) (quoting Raphael v. Mukasey,
533 F.3d 521, 530 (7th Cir. 2008)). The Seventh Circuit failed to note,
however, that notice and opportunity to respond applies only in the case
of an applicant deemed credible by the IJ, and that even in those cases, a
second hearing would often not be required. See supra note 12. More
important, the Seventh Circuit did not undertake any analysis of the statute’s text in order to ascertain its plain meaning. We think it clear that our
analysis of the statutory language leaves no doubt that Congress intended
that in the case of a credible applicant, when the IJ believes that corroborating evidence is required, he must so advise the applicant and give him
an opportunity to provide such evidence. The Seventh Circuit’s argument
that any required notice is provided by the statute is wholly inconsistent
with the text of the statute, as demonstrated above.

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[16] Moreover, even if the language had been ambiguous,
the canon of constitutional avoidance requires us to come to
the result discussed above. The canon “requires a statute to be
construed so as to avoid serious doubts as to the constitutionality of an alternate construction.” Nadarajah v. Gonzales,
443 F.3d 1069, 1076 (9th Cir. 2006). The REAL ID Act did
not change our clear Fifth Amendment caselaw that requires
a “full and fair hearing” in deportation proceedings. CamposSanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999). We have
previously observed that “demand[ing] [corroboration] immediately on the day of the hearing” would “raise[ ] serious due
process concerns by depriving [an applicant] of his guarantee
of a reasonable opportunity to present evidence on his
behalf.” Marcos v. Gonzales, 410 F.3d 1112, 1118 n.6 (9th
Cir. 2005) (internal quotation marks omitted).14 A requirement
that something be provided even before notice is given would
raise even more due process concerns. This provides additional support for our interpretation of the statute, although we
reiterate that the statutory text alone mandates our interpretation.
14

Moreover, any contrary ruling would make our procedural requirements for corroboration drastically different from our procedural requirements for credibility determinations. In Campos-Sanchez v. INS, 164 F.3d
448 (9th Cir. 1999), we held that the BIA violated the Fifth Amendment’s
guarantee of due process when it made an adverse credibility determination on the basis of discrepancies in the applicant’s story, but “had not . . .
advised [the applicant] that his credibility was questionable, or that any
discrepancies appeared to exist,” nor asked him “to explain any such perceived discrepancies.” Id. at 450. Because he “had no notice of the inconsistencies perceived by the BIA, and no opportunity to explain them,” the
BIA had denied him the “full and fair hearing” to which he was entitled.
Id. at 450-451. We have reaffirmed this principle many times since. See,
e.g., Soto-Olarte, 555 F.3d at 1092 (“[T]he IJ could not properly base her
adverse credibility determination on the inconsistencies between SotoOlarte’s testimony and the police report that Soto-Olarte did not explain
in his declaration, when she did not ask Soto-Olarte about these discrepancies or give him an opportunity to reconcile them.”); Chen v. Ashcroft,
362 F.3d 611, 618 (9th Cir. 2004); Ordonez v. INS, 345 F.3d 777, 786 (9th
Cir. 2003). Nothing in the REAL ID Act altered this rule. See supra note
2.

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Therefore, the IJ must undertake the following sequential
analysis. To begin, the IJ must determine whether an applicant’s credible testimony alone meets the applicant’s burden
of proof. If it does, no corroborative evidence is necessary. If
a credible applicant has not yet met his burden of proof, then
the IJ may require corroborative evidence. If corroboration is
needed, however, the IJ must give the applicant notice of the
corroboration that is required and an opportunity either to produce the requisite corroborative evidence or to explain why
that evidence is not reasonably available.
C.
[17] Having determined that the statute requires notice and
an opportunity to respond, we next ask whether Ren was
afforded that notice and opportunity. We hold that Ren was
given notice of the parts of his testimony that required corroboration and the evidence the IJ found necessary to corroborate
that testimony. He was also afforded a sufficient opportunity
to obtain the evidence or explain his failure to do so.
A brief recitation of the facts in this case is necessary in
order to explain that conclusion. At the initial merits hearing,
Ren was asked specifically about the bail receipt on cross
examination and he said that his wife had it in her possession
and that he had not asked her for it because he had not known
that he needed it. The IJ also asked Ren about the U.S. baptismal certificate and Ren said that he had it at home, but had
not brought it with him to the hearing. At the close of the first
merits hearing, the IJ deferred her decision for ten days. At
the second hearing, the IJ made clear to Ren not only the testimony for which corroboration was necessary, but also the
specific items of corroborative evidence that Ren should provide. The IJ granted the continuance so that Ren could get
“documents” to corroborate his church membership in the
United States and his arrest in China. The record is clear that
the specific documents to which she referred were the bail
receipt and the baptismal certificate from his local church.

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Finally, the IJ told Ren that it would be necessary for his pastor to come and testify about Ren’s involvement in the
church. The IJ informed Ren that she had many unanswered
questions that she would like the pastor to answer. When
Ren’s attorney asked whether a letter or affidavit would suffice, the IJ replied that they would not and reiterated that it
was necessary that the pastor testify in person.
Then, the IJ said that she was “putting [Ren] on notice that
. . . under the REAL ID Act” a lack of corroboration could
“legitimately be considered as the basis for the Court’s Decision in determining burden of proof.” She then continued the
hearing for approximately five months. At the third hearing,
Ren presented two letters from officers of the church but not
the requested documents, and no live witnesses. The IJ then
asked Ren if he had “anything further.” Ren’s counsel replied
in the negative and offered no explanation for Ren’s failure to
provide the corroborative evidence specified by the IJ. We
hold that Ren had adequate notice of the need for corroborating evidence that would meet his burden of proof, as well as
sufficient time to obtain that evidence or explain why he
could not do so. See Sandie v. Att’y Gen., 562 F.3d 246, 254
(3d Cir. 2009) (finding that a time lapse between hearings was
one reason why it was clear that the applicant had an opportunity to respond).
[18] Ren argues that he was not given an opportunity to
respond because the IJ did not specifically ask him at the third
hearing why he failed to present the corroborating evidence.
We disagree. Although it would be desirable for an IJ to ask
whether there is a reason that an applicant fails to provide the
corroborative evidence that he has been asked to produce, the
continuance and the hearing itself provides an applicant represented by counsel with the statutorily required opportunity.
We do not decide whether there are circumstances in which
an IJ would have an affirmative duty to request an applicant’s

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explanation for his failure to provide corroborating evidence;15
we hold only that under the circumstances described above,
the IJ did not have such a duty.16
D.
[19] Finally, we must decide whether the evidence that
Ren did provide compelled the conclusion that he met his burden of proof. See Aden, 589 F.3d at 1040. Ren’s corroborative
evidence consisted of two short and vague letters from officers of his church in the United States that did not mention
China and did not answer the questions that the IJ had posed
about Ren’s church involvement in the United States. We
hold that those letters along with the rest of the evidence in
the record do not compel the conclusion that Ren met his burden of proof.
VII.

Conclusion

We hold that the IJ’s adverse credibility determination is
not supported by substantial evidence, and therefore deem
15

For instance, although Ren was represented by counsel at his hearing,
our caselaw suggests that such a duty might exist if the applicant were pro
se. See, e.g. Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009)
(“Because aliens appearing pro se often lack the legal knowledge to navigate their way successfully through the morass of immigration law, and
because their failure to do so successfully might result in their expulsion
from this country, it is critical that the IJ ‘scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts.’ ” (quoting
Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002)).
16
We note also that substantial evidence supports the IJ’s conclusion
that the evidence requested was reasonably obtainable. Ren testified that
he had the baptism certificate at his house, and his counsel acquiesced
when the IJ requested that his pastor come to testify. Moreover, Ren testified that the bail receipt was in his wife’s possession in China and that the
only reason he had not obtained it for the initial hearing was that he did
not know that he needed it. Ren also testified that he had been in contact
with his wife in China and that she had sent him other documents through
the mail.

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Ren’s testimony credible. We also hold, however, that Ren
received adequate notice and an opportunity to respond to the
IJ’s request for corroborative evidence, that he failed to provide such evidence or any explanation as to why it was
unavailable, and that the IJ was not compelled to conclude
that Ren met his burden of proof without the corroborating
evidence that she requested. Therefore, the petition is
DENIED.17

17

Because Ren failed to meet his burden of proof for asylum, he necessarily failed to meet the higher burden of proof for withholding of
removal. Ren’s CAT claim also fails because he has not established that
it is more likely than not that he will be tortured if removed to China.