Lianhua Jiang v. Eric Holder, Jr.

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, CARLOS T. BEA and GLORIA M. NAVARRO) DENIED. Judge: CTB Concurring & dissenting, Judge: GMN Authoring. FILED AND ENTERED JUDGMENT. [9129345]

Case: 09-70900

06/12/2014

ID: 9129345

DktEntry: 27-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIANHUA JIANG,

No. 09-70900
Petitioner,
v.

Agency No.
A099-044-559

ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 30, 2013*
Pasadena, California
Filed June 12, 2014
Before: Diarmuid F. O’Scannlain and Carlos T. Bea,
Circuit Judges, and Gloria M. Navarro, Chief District
Judge.**
Opinion by Judge Navarro;
Partial Concurrence and Partial Dissent by Judge Bea

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**

The Honorable Gloria M. Navarro, Chief District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.

Page: 1 of 27

Case: 09-70900

2

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER
SUMMARY***

Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum, withholding of
removal, and protection under the Convention Against
Torture.
The panel held the inconsistency between petitioner’s
asylum declaration, in which she recounted her physical
abuse during detention, and her failure to testify about that
abuse until she was prompted to do so by her attorney, was
sufficient to support the IJ’s adverse credibility
determination. The panel explained that the evidence did not
compel petitioner’s interpretation of her testimony.
Because petitioner’s CAT claim was based on the same
testimony found to be not credible, and she pointed to no
other evidence that the IJ should have considered, the panel
held that substantial evidence supported the denial of CAT
relief.
The panel rejected petitioner’s contention that the IJ
deprived her of due process by failing to act as a neutral
arbiter because she failed to show that the IJ prevented her
from presenting evidence or that the IJ’s actions prejudiced
her.

***

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 27

Case: 09-70900

06/12/2014

ID: 9129345

JIANG V. HOLDER

DktEntry: 27-1

Page: 3 of 27

3

Dissenting in part and concurring in part, Judge Bea wrote
that the IJ failed to provide a legitimate articulable basis or
specific cogent reason for the credibility determination.
Judge Bea explained that the IJ based that finding not
upon substantial evidence, but rather the IJ’s own
misunderstanding of petitioner’s attorney’s non-chronological
questions and of the plain words of petitioner’s answers.
Judge Bea concurred with the majority’s due process
analysis.

COUNSEL
Joseph S. Porta, Law Offices of Cohen, Porta & Kim, Los
Angeles, California, for Petitioner.
Liza S. Murcia, Attorney, Tony West, Assistant Attorney
General, and Anthony C. Payne, Senior Litigation Counsel,
United States Department of Justice Civil Division,
Washington, D.C., for Respondent.

OPINION
NAVARRO, Chief District Judge:
Lianhua Jiang (“Petitioner”), a native and citizen of
China, petitions for review of the Board of Immigration
Appeals (“BIA”) decision, which substantially adopted the
order of the Immigration Judge (“IJ”) that denied asylum,
withholding of removal and relief under the Convention
Against Torture (“CAT”). In denying Petitioner’s application,
the IJ found Petitioner not credible. Petitioner now petitions
for review and argues that the IJ’s adverse credibility

Case: 09-70900

4

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

determination is based on impermissible grounds and is not
supported by substantial evidence.
We have jurisdiction under 8 U.S.C. § 1252. In light of
the highly deferential standard of review, we deny the
petition.
I. FACTS AND PROCEEDINGS BELOW
Petitioner is a native and citizen of the People’s Republic
of China and is of ethnic Korean descent. She also claims to
be a Christian. Petitioner entered the United States in June
2005 and, on August 4, 2005, she submitted an application
for asylum, withholding of removal, and protection under
CAT.
A
In her asylum declaration, Petitioner claims that she is
seeking asylum because of religious persecution by the
Chinese government. Specifically, Petitioner alleges that she
began attending Christian services at an unofficial “house
church” in October 2003 and was baptized on Christmas Day
2003. Petitioner’s declaration further states that, on January
16, 2005, while attending a church service at the house
church, the police arrested her for attending an illegal
meeting. Petitioner asserts that the police detained her for
seventeen days.
The asylum declaration also describes the police
treatment that Petitioner endured during her detention. First,
she claims that the police took her to an interrogation room,
slapped her face, accused her of illegal activity, and
threatened to send her to a labor camp if she refused to

Page: 4 of 27

Case: 09-70900

06/12/2014

ID: 9129345

JIANG V. HOLDER

DktEntry: 27-1

Page: 5 of 27

5

confess. Additionally, the declaration explains that, when she
refused to confess to the police’s allegations, the police began
yelling and kicking her legs and back until she lost
consciousness. When she later regained consciousness, she
was in a jail cell and was still feeling the effects of the
physical abuse. Later, the police forced her to read the
government newspaper and write reports on the articles
contained therein. After her detention, Petitioner decided to
leave China and seek asylum in the United States.
B
After an interview with an asylum officer, Petitioner’s
application was referred to an IJ for removal proceedings. At
her removal hearing, Petitioner testified that the police
interrogated her during the detention. However, when asked
whether the police did anything else, “[b]esides interrogating
[her],” Petitioner responded only that the police “forced [her]
to read government newspaper” and then write about the
subject of the newspaper articles. She also testified that, to
ensure that she read the newspapers, the police threatened to
put her parents in jail.
Petitioner was asked four times whether anything else
happened during her detention, other than being forced to
read the government newspaper. Each of these four times,
Petitioner failed to mention the physical abuse that she
expressly described in her asylum declaration. After the
fourth time, Petitioner’s attorney stated “[b]ut on your
statement you say that they kicked you.” In response to this
statement, the IJ confirmed that the attorney was attempting
to rehabilitate the Petitioner. Then, after the IJ noted that
Petitioner had failed to testify that she was physically abused,

Case: 09-70900

6

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

Petitioner attempted to reconcile this inconsistency by
distinguishing the interrogation from her time in jail.
After further questioning, Petitioner testified that she was
interrogated in an “interrogation room” that was part of the
“police station and jail.” Petitioner further explained that she
understood the previous questioning about her treatment
while she was detained in the jail to relate only to what
occurred “in the jail, inside of the cell.” After she was
reminded of her previous statements in her asylum
declaration, Petitioner testified that the police slapped her
while she was in the interrogation room. She also testified
that soon thereafter, a person began kicking her in her lower
back, leg, and body until she “fell down to the ground” and
eventually lost consciousness. She testified that she regained
consciousness in a jail cell. On that same day, the police
began forcing her to read the government newspaper.
C
In addition to testimony about Petitioner’s detention in
China and Petitioner’s religious activities, the IJ also heard
testimony about Petitioner’s living arrangements after she
arrived in the United States. Petitioner testified that, after she
entered the United States, she traveled to Los Angeles and
contacted her “roommate,” whom she later identified as “Mr.
Im.” She further testified that she was living with Mr. Im, his
wife, and his son.
The IJ also heard testimony from Mr. Im, during which he
confirmed that Petitioner was living in his home. In response
to this confirmation, the IJ commented “[t]hat’s
convenient,”and then asked “[d]oes anyone else live there?”
Mr. Im confirmed that his wife also lives with him, but also

Page: 6 of 27

Case: 09-70900

06/12/2014

ID: 9129345

JIANG V. HOLDER

DktEntry: 27-1

Page: 7 of 27

7

noted that “she comes and goes.” The IJ then requested that
Mr. Im’s wife provide testimony, but Mr. Im’s wife refused.
D
In the IJ’s oral ruling, she found that Petitioner was
removable as charged and denied Petitioner’s application for
asylum, withholding of removal, and protection under CAT.
The IJ concluded that Petitioner failed to provide sufficient
credible evidence to establish her eligibility for the requested
relief.
Relying primarily on the inconsistencies between
Petitioner’s asylum declaration and her testimony before the
IJ, the IJ first found Petitioner not credible. The IJ was chiefly
concerned with Petitioner’s failure to testify about being
threatened with being sent to a labor camp and her failure to
testify about the physical abuse that she suffered during her
detention. The IJ emphasized that Petitioner was prompted
multiple times and, nevertheless, each time failed to testify
about the physical abuse. Additionally, the IJ was concerned
that Petitioner testified about her 2003 baptism in China only
after the IJ specifically asked about any significant events that
occurred between the date on which Petitioner became a
Christian and the beginning of her detention. Finally, the IJ
supported her adverse credibility finding by rejecting
Petitioner’s attempt to reconcile her testimony with the
statements in her asylum declaration.
E
Petitioner filed a timely Notice of Appeal of the IJ’s
decision with the BIA. The BIA ultimately rejected all of
Petitioner’s arguments and dismissed her appeal. On appeal

Case: 09-70900

8

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

to the BIA, Petitioner first objected to the IJ’s adverse
credibility determination. The BIA reviewed the IJ’s decision
for clear error and affirmed the IJ’s adverse credibility
finding and the denial of Petitioner’s application.
Consequently, the BIA dismissed Petitioner’s appeal in an
order summarizing the IJ’s oral ruling.
In addition, Petitioner argued that the IJ deprived her of
a full and fair hearing by failing to act as a neutral fact-finder.
Specifically, Petitioner asserted that the IJ demonstrated
impermissible moral judgment through her commentary on
the relationship between Petitioner and her roommate, Mr.
Im. Petitioner also argued that the IJ conducted “aggressive”
questioning that “interrupted the hearing.” The BIA rejected
these arguments. The BIA further determined that, even to the
extent that the IJ made improper or unnecessary comments
during the hearing, these comments did not reflect
impropriety. Rather, these comments represented the IJ’s
efforts to ascertain the nature of Petitioner’s relationship with
each witness, and thereby assess each witness’s credibility.
For these reasons, the BIA concluded that the hearing was
fundamentally fair.
II. STANDARD OF REVIEW
“Where, as here, the BIA adopts the IJ’s decision while
adding some of its own reasoning, we review both decisions.”
Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.
2011). We review the BIA’s factual findings, including
adverse credibility determinations, for substantial evidence.
Salaam v. INS, 229 F.3d 1234, 1237–38 (9th Cir. 2000). This
standard of review is “extremely deferential: ‘administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’”

Page: 8 of 27

Case: 09-70900

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

Page: 9 of 27

9

Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003)
(quoting 8 U.S.C. § 1252(b)(4)(A)–(B)). “Thus, when a
petitioner contends that the IJ’s findings are erroneous, the
petitioner ‘must establish that the evidence not only supports
that conclusion, but compels it.’” Id. (quoting Singh v. INS,
134 F.3d 962, 966 (9th Cir. 1998)).
We review the BIA’s determination of purely legal
questions de novo. Hamazaspyan v. Holder, 590 F.3d 744,
747 (9th Cir. 2009). Claims of due process violations in
immigration proceedings are also reviewed de novo. LopezUrenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir. 2003).
III. ADVERSE CREDIBILITY DETERMINATION
Because Petitioner filed her asylum application after May
11, 2005, the REAL ID Act governs the determination of her
credibility. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Shrestha v.
Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Specifically,
this standard governing adverse credibility determinations
provides:
Considering the totality of the circumstances,
and all relevant factors, a trier of fact may
base a credibility determination on the
demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility
of the applicant's or witness’s account, the
consistency between the applicant’s or
witness’s written and oral statements
(whenever made and whether or not under
oath, and considering the circumstances under
which the statements were made), the internal
consistency of each such statement, the

Case: 09-70900

10

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER
consistency of such statements with other
evidence of record (including the reports of
the Department of State on country
conditions), and any inaccuracies or
falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s
claim, or any other relevant factor. There is no
presumption of credibility, however, if no
adverse credibility determination is explicitly
made, the applicant or witness shall have a
rebuttable presumption of credibility on
appeal.

8 U.S.C. § 1158(b)(1)(B)(iii); see also Shrestha, 590 F.3d at
1039–40. Furthermore, “[a]lthough we review credibility
findings under the deferential substantial evidence standard,
in order to make an adverse credibility finding, the BIA must
have a legitimate articulable basis to question the petitioner’s
credibility, and must offer a specific, cogent reason for any
stated disbelief.” Malhi v. INS, 336 F.3d 989, 992 (9th Cir.
2003) (internal quotation marks omitted).
A
The BIA rested its adverse credibility determination on
several grounds. Here, we rely only on Petitioner’s failure to
testify that she was physically abused during her detention
until she was prompted to do so by her attorney. Rizk v.
Holder, 629 F.3d 1083, 1088–89 (9th Cir. 2011) (“Because
we must uphold the IJ’s adverse credibility determination so
long as even one basis is supported by substantial evidence,
we focus on one of the key contradictions the IJ identified.”
(internal citation omitted) (emphasis added)). Because this

Page: 10 of 27

Case: 09-70900

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

Page: 11 of 27

11

inconsistency is sufficient to support the IJ’s adverse
credibility finding, we need not comment on the remaining
grounds cited by the BIA.
In an attempt to discredit the IJ’s adverse credibility
determination, both Petitioner and the dissent primarily rely
on the following portion of Petitioner’s testimony:
Q. How many of you were arrested?
A. About 20 people.
Q. Okay, where did, did they take you?
A. To police station.
Q. Okay, and how long were you detained at
the police station?
A. For about 17 days.
Q. How many times?
A. Once
Q. Okay. Besides interrogating you, did police
do, did anything to you during these 17 days?
A. Yes.
Q. What did they do?
A. They forced me to read government
newspaper.

Case: 09-70900

12

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

Based on this short exchange between Petitioner and her
attorney, the dissent argues that Petitioner was confused by
her attorney’s line of questioning. According to the dissent,
Petitioner distinguished between the events that occurred in
the “interrogation room” and events that occurred outside the
interrogation room, in the “jail.” When Petitioner’s attorney
asked her whether anything happened to her during her
detention “besides interrogat[ion],” the dissent claims that
Petitioner interpreted that question and the related subsequent
questions as solely relating to how she was treated outside the
interrogation room. The dissent further contends that
Petitioner did not mention the physical abuse in response to
her attorney’s line of questioning because she was only
beaten inside the interrogation room.
We recognize that the dissent provides one feasible
interpretation of Petitioner’s testimony. However, the
dissent’s interpretation is not the only plausible interpretation.
As such, even though the dissent’s explanation is
conceivable, it fails to accord proper respect to the standard
of review for adverse credibility determinations. Specifically,
to overturn an IJ’s adverse credibility determination, we must
find that “the evidence not only supports [a contrary]
conclusion, but compels it.” Rizk, 629 F.3d at 1087 (alteration
in original) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1 (1992)).
In this case, one could reasonably interpret the questions
that Petitioner was asked, as the IJ did, as inquiring about
Petitioner’s treatment at any time during her detention and at
any location within the detention facility. Petitioner was
asked four separate times “what else” happened to her
“during [those] 17 days” of her captivity. Throughout these
“what else” inquiries, the questions were phrased in a general

Page: 12 of 27

Case: 09-70900

06/12/2014

ID: 9129345

JIANG V. HOLDER

DktEntry: 27-1

Page: 13 of 27

13

manner without a specific reference to any particular location.
For example, Petitioner was asked: “Okay. Anything else
happen?” The IJ apparently interpreted these questions in this
manner, as applying generally to Petitioner’s time in the
detention facility, when she rejected Petitioner’s explanation
for her inconsistency: “The Court does not believe that this is
a credible explanation for her omission, particularly given
that she was asked did anything else happen.” See Shrestha,
590 F.3d at 1044 (noting that an IJ is required to consider a
petitioner’s explanation for inconsistencies as part of the
adverse credibility determination).
In contrast, the dissent interprets this “what else” line of
questioning as inquiring into activity occurring solely in the
“jail” and outside the “interrogation room.” Nothing in the
record, however, compels this interpretation. Indeed, as
Petitioner conceded, the interrogation room was located
inside the jail, so distinguishing between the interrogation
room and the jail makes little sense.
For these reasons, although one could interpret
Petitioner’s testimony as being consistent with the manner in
which her attorney phrased the questions, one could just as
easily conclude that Petitioner failed to mention critical facts
in a way that was inconsistent with her declaration. It cannot
be said, then, that the evidence compels the interpretation of
the evidence advocated by the Petitioner and the dissent such
that we must reverse the IJ’s finding. See Rizk, 629 F.3d at
1088 (“If the IJ reasonably rejects the alien’s explanation [for
an inconsistency] . . . , the IJ may properly rely on the
inconsistency as support for an adverse credibility
determination.” (internal citation omitted)). Taking the
position suggested by the dissent would require that we
supplant the IJ’s credibility determination with our own, as if

Case: 09-70900

14

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

we were conducting a de novo review. Given the extremely
deferential standard of review, anything approaching a de
novo review is improper. Thus, Petitioner’s asylum claim
must fail.
B
To demonstrate eligibility for withholding of removal,
“the petitioner must show a ‘clear probability’ of the threat to
life or freedom if deported to his or her country of
nationality.” Tamang v. Holder, 598 F.3d 1083, 1091 (9th
Cir. 2010). “The clear probability standard is more stringent
than the well-founded fear standard for asylum.” Id.
Consequently, because Petitioner’s asylum claim fails, her
withholding of removal claim also fails. See Farah, 348 F.3d
at 1156 (“Because we affirm the BIA’s determination that
Farah failed to establish eligibility for asylum, we also affirm
the denial of Farah’s application for withholding of
removal.”).
C
Article 3 of the Convention Against Torture (“CAT”)
prohibits states from returning anyone to another state “where
there are substantial grounds for believing that [she] would be
in danger of being subjected to torture.” Khourassany v. INS,
208 F.3d 1096, 1099 (9th Cir. 2000). To establish eligibility
for relief under CAT, the applicant must “establish that it is
more likely than not that . . . she would be tortured if removed
to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2).
Although an adverse credibility finding does not necessarily
preclude relief, a claim for relief under CAT may still be
rejected when the petitioner fails to provide evidence beyond
those statements that the IJ determined were not credible. See

Page: 14 of 27

Case: 09-70900

06/12/2014

ID: 9129345

JIANG V. HOLDER

DktEntry: 27-1

Page: 15 of 27

15

Farah, 348 F.3d at 1157 (affirming the BIA’s rejection of a
CAT claim when the petitioner failed to point to any “other
evidence that he could claim the BIA should have considered
in making its determination under [CAT]”).
Here, the only evidence in the record to support
Petitioner’s CAT claim is the same testimony that the IJ
found not credible and the Country Report on Human Rights
practices for China (“Country Report”). Although the
Country Report confirms that religious persecution does
occur in China, by itself, the Country Report is insufficient to
compel the conclusion that Petitioner would be tortured if
returned. See Almaghzar v. Gonzales, 457 F.3d 915, 922–23
(9th Cir. 2006) (rejecting a petitioner’s CAT claim that was
supported solely by discredited testimony and the relevant
country report). Therefore, because Petitioner’s CAT claim
is based on the same testimony found to be not credible, and
she points to no other evidence that the IJ should have
considered, substantial evidence supports the denial of CAT
relief. See Farah, 348 F.3d at 1157.
IV. DUE PROCESS
“[A]n alien who faces deportation is entitled to a full and
fair hearing of [her] claims and a reasonable opportunity to
present evidence on [her] behalf.” Colmenar v. INS, 210 F.3d
967, 971 (9th Cir. 2000). We will reverse the BIA’s decision
on due process grounds “if the proceeding was so
fundamentally unfair that the alien was prevented from
reasonably presenting his case.” Id. at 971 (internal quotation
marks omitted). “To warrant a new hearing, the alien must
also show prejudice, which means that ‘the outcome of the
proceeding may have been affected by the alleged violation.’”

Case: 09-70900

16

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009)
(quoting Colmenar, 210 F.3d at 971).
Here, Petitioner asserts that the IJ deprived her of her due
process right to a full and fair hearing. Specifically, Petitioner
argues that the IJ abandoned her role as a neutral fact-finder
and imposed “moral judgment” as exhibited by the IJ’s
questions and comments about Petitioner’s relationship with
her roommate, Mr. Im. Because Petitioner has failed to show
that the IJ prevented her from presenting evidence and
because Petitioner has failed to articulate how this alleged
deprivation prejudiced her, her due process challenge must
fail.
True enough, this Court has previously held that an
alien’s due process rights may be deprived when the IJ’s onthe-record view of the petitioner’s personal relationships
prevented the IJ from acting as a neutral fact-finder. See
Reyes-Melendez v. INS, 342 F.3d 1001, 1007 (9th Cir. 2003)
(holding that a petitioner was denied a full and fair hearing
when the IJ repeatedly “inquired into the sexual nature of [the
petitioner’s] relationships with his wife and former
paramour”; “asked how many women with whom he had
engaged in sexual intercourse”; and “mentioned the fact that
his children had two different mothers on at least six
occasions”). However, in this case, the IJ’s questioning does
not reflect such a lack of impartiality. On the contrary, the IJ
was attempting to understand the relationship, whether
familial or otherwise, between Petitioner and Mr. Im. See,
e.g., United States v. Dring, 930 F.2d 687, 691 (9th Cir. 1991)
(“[I]t would be permissible to imply that, because of bias due
to family relationship, a father is lying to protect his son.”).
Thus, the IJ did not violate Petitioner’s right to due process.

Page: 16 of 27

Case: 09-70900

06/12/2014

ID: 9129345

JIANG V. HOLDER

DktEntry: 27-1

Page: 17 of 27

17

Even if Petitioner had shown that the IJ’s questioning
prevented Petitioner from reasonably presenting her case,
Petitioner failed to articulate how this alleged violation of due
process affected the outcome of the proceedings. See
Cinapian, 567 F.3d at 1075.
V. CONCLUSION
The petition for review is DENIED.

BEA, Circuit Judge, dissenting in part and concurring in
part:1
I respectfully dissent. The BIA accepted the IJ’s adverse
credibility finding (“ACF”), which rested upon five purported
inconsistencies and omissions in petitioner’s testimony.
Because the majority affirms as to only one of those
purported inconsistencies, I will not address the rest. I
conclude, however, that the IJ did not base her ACF upon
“substantial evidence,” but rather upon her own
misunderstanding of petitioner’s attorney’s non-chronological
questions and of the plain words of petitioner’s answers.
That is, the IJ offered no “legitimate articulable” basis or
“specific cogent reason” for her decisions, Gui v. I.N.S.,
280 F.3d 1217, 1225 (9th Cir. 2002), and I would therefore
reverse and remand with instructions to find petitioner
credible.

1

I concur in that part of the majority’s decision that finds that the IJ
showed no prejudice that made the proceeding fundamentally unfair.

Case: 09-70900

18

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER
“Jail” cell versus “interrogation” room.

The IJ cited a supposed inconsistency between
petitioner’s asylum application declaration and her live
testimony. In her asylum application declaration, petitioner
said she had been kicked and slapped by Chinese police in an
interrogation room. The BIA accepted the IJ’s finding that
petitioner mentioned in live testimony only being forced to
read government newspapers until she was “reminded” about
the physical abuse—even after being asked twice “did
anything else happen?”
But the record shows that the BIA and IJ’s conclusions
were not products of “specific cogent” or “legitimate”
reasoning based on what was actually asked and answered at
the hearing. Gui, 280 F.3d at 1225; Zi Lin Chen v. Ashcroft,
362 F.3d 611, 617 (9th Cir. 2004). Bear with me while the
scene is reconstructed from the record, then judge for
yourself.
For eight pages of the record petitioner gave detailed
testimony about her conversion to Christianity and her
religious activities in China. At length, her attorney turned to
January 16, 2005, when petitioner’s underground house
church in Jilin Province was raided by about fifty police
officers. Petitioner’s attorney began the following line of
questioning:
Q. How many of you were arrested?
A. About 20 people.
Q. Okay, where did, did they take you?

Page: 18 of 27

Case: 09-70900

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

Page: 19 of 27

19

A. To police station.
Q. Okay, and how long were you detained at
the police station?
A. For about 17 days.
Q. Okay. During these 17 days, did police
ever interrogate you?
A. Yes.
Q: How many times?
A: Once.
Q: Okay. Besides interrogating you, did
police do, did anything to you during these 17
days?
A: Yes.
Q. What did they do?
A. They forced me to read [a] government
newspaper.
(Emphasis added). Then petitioner’s attorney asked her
“Okay, what else?” and she responded that she was forced to
write reports about the newspapers under threat that her
parents would be arrested if she did not. Her attorney then
asked “Okay. Anything else happen?” and she responded
“no.”

Case: 09-70900

06/12/2014

20

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

At that point her attorney said “But on your statement you
say that they kicked you.”2 The court asked petitioner to
explain: “Ma’am, your testimony is inconsistent with your
declaration. Why is that?” Petitioner answered: “I believe
that it is consistent. In what way?” The IJ responded:
You just told me that they forced you to read
a paper, they threatened to arrest your parents
and they forced you to write a report and that
nothing else happened. The inconsistenc[y] is
because your statement says that you were
beaten. Now why did you fail to mention that
in your testimony?
Petitioner replied: “[b]ecause I, I understood that my attorney
asked me before I went to jail why, why [while, while], I was
interrogating, what kind of thing happened, I understood that
way. That’s why I mentioned that.”3

2

This apparently was when petitioner was “confronted” with her
declaration, as the IJ characterized the testimony in her oral opinion.
3

The government calls this explanation “incomprehensibl[e] and
confusing[].” Any confusion is likely attributable to the translator, Ms.
Lee, who clearly meant “while” where the transcriber heard “why”; Ms.
Lee’s English was poor and her accent very thick. See, e.g., “If you
believe in God, you’re going to be more comfortable feeling in your
mind.”; “Because at that time, police officer told us that he writes this to
illegally, he writes this gathering illegally, they said.”; “Q. Are you
employed, sir? A. Yes. I am running toying company. JUDGE TO MS.
LEE: A toy company? MS. LEE TO JUDGE: Toying. JUDGE TO MS.
LEE: Coin? MR. IM TO JUDGE: Toying. MS. LEE TO JUDGE:
Toying. Toying company. JUDGE TO MR. IM: Towing vehicles? A.
Yes.”

Page: 20 of 27

Case: 09-70900

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

Page: 21 of 27

21

The IJ’s response to that is puzzling: “No, because you
testified that you had been forced to read a paper, that you
had to write reports, so your testimony indicates you
understood the scope of the question.” But, as petitioner
explained,
So why [while] I was in the jail and they
forced me to read a paper, but before I went to
jail, while they were interrogating me, and
they beat me. Because as soon as I arrive in
the police station they took me to the
interrogating room and then they started
interrogating me. At that time, the police
officer beat me. Because my attorney just
asked me that, what kind of a thing happened
in the jail that’s why I just mentioned that part
right now. (Emphasis added).4 No wonder
petitioner “just mentioned that part right

This circuit has warned 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).
4
The interrogation room, jail, police station, and cell all were part of the
same building complex, but were separate areas. Petitioner’s attorney
asked her:

Q. Okay. So where were you interrogated?
A. In interrogating room. [sic]
Q. And that interrogating room is not part of the jail?
A. It’s part of police station and jail, but I, I just
understood that you just asked me why [while] I was in
the jail, inside of the cell. [sic]

Case: 09-70900

06/12/2014

22

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER
now”; remember, the “scope of the question”
had been:
Q. Okay. During these 17 days, did police
ever interrogate you?
A. Yes.
Q: How many times?
A: Once.
Q: Okay. Besides interrogating you, did
police do, did anything to you during these 17
days?

The substance of the testimony was clear. Petitioner had
been beaten during her one interrogation, in the interrogation
or “interrogating” room. After that, she was jailed for
seventeen days and made to read government newspapers and
write reports—and nothing else happened during the
seventeen days.
What specific, cogent, articulable basis did the IJ have for
her conclusion in her oral opinion that petitioner, even when
asked “anything else,” “omi[tted]” mention of beatings until
“reminded?” It can only be that petitioner answered her
attorney’s questions precisely as, and in the order that, they
were presented to her. I am quite sure it is not the law of this
circuit to fault asylum petitioners and label them not credible
for answering their attorneys’ questions as asked. And the
attorney’s meandering questions are not “substantial
evidence” of petitioner’s credibility—if anything, petitioner’s
precise and unenhanced answers to her attorney’s precise

Page: 22 of 27

Case: 09-70900

06/12/2014

ID: 9129345

JIANG V. HOLDER

DktEntry: 27-1

Page: 23 of 27

23

questions demonstrate her “candor” and “responsiveness,”
two of the factors an IJ should consider in an ACF
determination under the REAL ID Act.
8 U.S.C.
§ 1158(b)(1)(B)(iii).
Indeed, once petitioner’s attorney back-tracked his
questions to the interrogation that he had leapt entirely over
in his first line of questioning, and posed the non-leading
question “Okay, why don’t you tell us then what happened in
the interrogation room,” petitioner testified consistently with
her declaration in describing her physical abuse. She stated
that she was slapped, accused of anti-government illegal
activities, and was threatened with “jail” if she did not
confess. With no further prompting from her attorney, she
then described in detail how she was “hit” with a leather boot
in her lower back and legs until she fell to the ground and lost
consciousness. She admitted that after she fell down,
“nothing else happened.” She said that when she woke up
she was in a cell with five other people, and was so bruised
that she asked for medical attention, but was refused.
Her live testimony was compelling and consistent with
her declaration, in which she averred she was arrested, then
first taken to an “interrogation” room, where she was slapped,
accused of anti-government illegal activity, and then kicked
with shoes until she “passed out.” When she woke up, she
wrote, she was “in a cell” in great pain and “barely able to
move.” Only “[t]hereafter,” she wrote in her declaration, was
she forced to read newspapers and write reports. (Emphasis
added). The IJ, however, took no note of that consistency
between the declaration and the testimony, in disregard of
“the totality of the circumstances approach” of the REAL ID
Act that “imposes the requirement that an IJ not cherry pick
solely facts favoring an adverse credibility determination

Case: 09-70900

06/12/2014

24

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

while ignoring facts that undermine that result.” Shrestha v.
Holder, 590 F.3d 1034, 1040 (2010).
The majority asserts that I merely credit Jiang’s testimony
more than the IJ did, as though on de novo review, that my
interpretation is merely one “feasible” view of the testimony
among many, and that nothing compels my contrary
conclusion, as the REAL ID Act requires. Not so: the words
compel my conclusion. Words matter.5 Petitioner was asked
a question composed of words: what did the authorities do
“besides interrogat[e] you?” The later words “anything
else?” had as their plain antecedent the initial words “Besides
interrogating you, did police do, did anything to you during
those 17 days?” After relating that she had to read
government propaganda and write reports, the only truthful,
accurate response petitioner could give to the words
“besides,” “anything,” and “else,” no matter how many times
the words were repeated, was “no.”

5

I recall an exchange from A Man for All Seasons:
MORE: (Very still) What is the oath?
ROPER: (Puzzled) It’s about the marriage, sir.
MORE: But what is the wording?
ROPER: We don’t need to know the (Contemptuously)
wording—we know what it will mean!
MORE: It will mean what the words say! An oath is
made of words!

Robert Bolt, A Man for All Seasons, Act II, 74–75 (Heinemann, 1960).

Page: 24 of 27

Case: 09-70900

06/12/2014

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

Page: 25 of 27

25

Indeed, the BIA’s use of “detention”6 and the IJ’s use of
“jail” showed that neither paid precise attention to the words
that described events that took place in (1) the interrogation
room—interrogation and beating when petitioner would not
sign a “confession,” and (2) the jail cell—where the petitioner
was made to read government propaganda and write reports.
Similarly, the BIA noted that the IJ “thought it significant that
[petitioner] finished testifying about these events and was
asked if anything else happened to her, to which she
responded [n]o.” The record shows otherwise. Petitioner
was not “finished” testifying about what happened to her: she
had not yet been asked about the “interrogation.” Petitioner’s
attorney simply skipped from the questioning in the
interrogation room to the forced reading and writing in the
jail cell, without asking about the beating that took place in
the interrogation room. I do not consider reasoning based on
the erroneous interpretation of plain words, particularly words
with meanings consistent with petitioner’s declaration, to be
“substantial evidence,” based on “specific, cogent,” or
“legitimate” reasons, that can support an ACF. Gui, 280 F.3d
at 1225.7 And without that reasoning, petitioner’s testimony
6

7

A word not used during the IJ hearing testimony.

See also Chengjun Wu v. Holder, 434 F. App’x 592 (9th Cir. 2011).
In that case, the IJ found petitioner not credible because of an
“inconsistency” between petitioner’s written declaration and her
testimony. In her written application, petitioner wrote she had a forced
abortion and an IUD implanted in 1985. Id. at 593. The IUD caused
complications, was removed, petitioner became pregnant again in 1994,
and was forced to have a second abortion. At the IJ hearing, petitioner
was asked if she had the abortion and IUD put in on the same day.
Petitioner, through a translator, testified that she was forced to have the
first abortion and then “immediately” had the IUD implanted. Id.
Petitioner later “clarified” the IUD was put in “the ‘second time’” “after
she ‘went back to the hospital’” because she was in pain from the

Case: 09-70900

06/12/2014

26

ID: 9129345

DktEntry: 27-1

JIANG V. HOLDER

was nothing but consistent and compelling.8 Kin v. Holder,
abortion. Id. The IJ, however, interpreted the word “immediately” to
mean that the IUD was put in the “same day” as the abortion. The IJ
interpreted the clarifying words “second time” to mean the “second
abortion,” and found the petitioner not credible because the words were
inconsistent with the declaration and because “immediate[]” implantation
of an IUD after an abortion is medically out of the question. Id. at 594.
The panel, however, granted the petition for review and remanded with
instructions to find petitioner credible, and concluded that the IJ’s
interpretations of the words of petitioner’s testimony did not constitute
substantial evidence: “[t]he IJ’s strained interpretation of Wu’s testimony
is based entirely on ambiguity in the word ‘immediately,’ but Wu’s
meaning was made clear by her subsequent testimony . . . Basing an
adverse credibility determination on an applicant’s fine-grained word
usage is particularly inappropriate in cases, such as this, where there is an
obvious language barrier.” Id.
8

Petitioner’s testimony was also consistent with the State Department’s
2005 report on the persecution of house churches in China, including in
petitioner’s native Jilin Province:
Protestant house churches and their leaders were
subject to a selective crackdown in many areas.
Authorities frequently disrupted house church meetings
and retreats and detained leaders and church members.
In May authorities reportedly detained hundreds of
house church members from different groups in Jilin
Province . . . . On August 2, authorities reportedly
abused some of 40 worshipers detained in Hubei
Province’s Zaoyang City. On August 7, a house church
in Hejing County, Xinjiang Province, was reportedly
raided and several worshipers were detained.
Evidence from the State Department is one of the enumerated factors
under the REAL ID Act that can show the credibility of a petitioner’s
testimony. 8 U.S.C. § 1158(b)(1)(B)(iii). See also Ren v. Holder,
648 F.3d 1079, 1089 (9th Cir. 2011) (State Department evidence
supported petitioner’s claims that he was persecuted as part of a Chinese
Christian house church).

Page: 26 of 27

Case: 09-70900

06/12/2014

ID: 9129345

JIANG V. HOLDER

DktEntry: 27-1

Page: 27 of 27

27

595 F.3d 1050, 1054 (9th Cir. 2010). I would therefore
reverse and remand with instructions to find the petitioner
credible, and I respectfully dissent.