Cui Li v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CUI LI, No. 19-71998
Petitioner, Agency No. A206-540-699
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 4, 2021**
Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and DONATO,*** District
Judge.
Cui Li, a native and citizen of China, petitions for review of a Board of
Immigration Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
denial of her application for asylum, withholding of removal, and relief under the
Convention Against Torture. Li claims past and future persecution based on
violations of China’s family planning policy. Specifically, Li alleges that she was
subjected to a forced abortion and fears that she will be sterilized if she returns to
China. We have jurisdiction under 8 U.S.C. § 1252, and we grant Li’s petition and
remand for further proceedings.
The BIA affirmed the IJ’s adverse credibility determination based on the
following grounds: (1) inconsistences between Li’s testimony, her prior statements,
and documentary evidence; and (2) Li’s failure to provide sufficient corroborating
evidence. On review of the record, neither of these reasons is supported by
substantial evidence. See Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020).
1. The BIA relied on four purported inconsistencies: (1) inconsistences in
Li’s testimony regarding the symptoms she experienced from an intrauterine
device (“IUD”); (2) the fact that Li waited over two years to have an IUD removed
after entering the United States, despite her claim that it caused her intense pain
and suffering; (3) inconsistences between Li’s testimony and a patient history form
that she submitted; and (4) Li’s failure to include in her asylum application that her
mother-in-law was beaten.
Substantial evidence does not support the IJ’s finding that Li provided
inconsistent testimony regarding her IUD symptoms. Li testified that family
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planning officials inserted an IUD against her will on two separate occasions and
that she suffered different complications following each procedure. Specifically,
Li testified that she experienced excessive menstrual bleeding after the first, and no
menstrual bleeding at all after the second. But the IJ lumped this testimony
together and mischaracterized it as “inconsistent,” failing to appreciate that Li was
describing the symptoms she experienced from two different IUDs. See Ren v.
Holder, 648 F.3d 1079, 1086 (9th Cir. 2011) (concluding that a purported
inconsistency did not support adverse credibility determination because the IJ’s
characterization of the petitioner’s testimony was inaccurate). Moreover, the BIA
itself appears to concede that Li’s testimony on this subject may have been
“confused or misunderstood.”
The BIA also relied on a perceived inconsistency between Li’s testimony
that the first IUD caused her intense suffering as well as gynecological disease and
her testimony that she waited over two years after arriving in the United States
before having the second IUD removed. But again, both the IJ and the BIA failed
to appreciate that Li was twice subjected to a forced IUD and experienced distinct
symptoms following each procedure. Specifically, Li never testified that the
second IUD caused her intense suffering. Rather, she testified that she ultimately
had it removed because she did not have her period.
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The BIA also noted several alleged inconsistencies between Li’s testimony
and a patient history form that was completed when Li had her second IUD
removed in the United States, but these are similarly not supported by substantial
evidence. For example, the IJ inaccurately found that the form was inconsistent
with Li’s testimony because she “claimed that she had her first IUD removed in
China, clearly a surgical procedure.” (emphasis added). But no record evidence
suggests that removal of an IUD is a surgical procedure. Moreover, Li, who does
not speak English, explained that the form was incomplete or inaccurate because
another individual at the doctor’s office, who did not speak Mandarin, assisted her
in completing it and they struggled to communicate through the language barrier.
See He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003) (“[F]aulty or unreliable
translations can undermine the evidence on which an adverse credibility
determination is based.”); see also Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir.
2004).
Finally, the BIA relied on the fact that Li testified at her merits hearing that
her mother-in-law was beaten, but she failed to include this detail in her asylum
application. “[A]lthough an IJ may rely on omissions when evaluating an
applicant’s credibility, not all omissions will deserve the same weight or support an
adverse credibility finding.” Iman, 972 F.3d at 1067. Notably, “the omitted
information concerned ‘adverse consequences for third parties,’” rather than for Li
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herself. Id. at 1068 (quoting Lai v. Holder, 773 F.3d 966, 973 (9th Cir. 2014)).
Moreover, we have emphasized that that the “‘mere omission’ of additional,
consistent details is ‘insufficient to uphold an adverse credibility finding’” where
the original asylum application omitted a detail and later testimony supplemented
the petitioner’s account with consistent information. Lizhi Qiu v. Barr, 944 F.3d
837, 844 (9th Cir. 2019) (quoting Lai, 773 F.3d at 971); see also Iman, 972 F.3d at
1068.
2. In upholding the IJ’s adverse credibility finding, the BIA also relied on
Li’s failure to provide specific corroborating evidence. The IJ requested a laundry
list of documentary evidence, including proof that Li was twice fined 5,000 RMB,
either through copies of the checks or bank account withdrawals, and an affidavit
detailing Li’s gynecological disease symptoms.
However, Li provided “in good faith, meaningful corroborating evidence
that [happened to be] different than the evidence sought by the IJ.” Jie Shi Liu v.
Sessions, 891 F.3d 834, 839 (9th Cir. 2018). For example, rather than a copy of a
check or bank account withdrawal, Li provided receipts of the payments, thereby
demonstrating the key fact that the IJ sought to verify: Li was fined 5,000 RMB by
the Chinese government in 2008 and 2013. The IJ also faulted Li for failing to
submit an affidavit corroborating her gynecological symptoms. Although Li did
not submit an affidavit, she provided a signed doctor’s note that described her
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symptoms. This contemporaneous account provided by Li’s doctor—a third party
who had no reason to misrepresent Li’s self-reported symptoms—is “meaningful
corroborating evidence” that bolsters her claims, even if it differed from the IJ’s
precise request. See Jie Shi Liu, 891 F.3d at 838.
Finally, the IJ’s request for “evidence showing that [the] Chinese
government will persecute people simply if they do not show [for] a sterilization
procedure,” is unreasonable given that we have explained that it is inappropriate
for an agency to request proof of how or why a persecutor intends to act. See
Singh v. Holder, 638 F.3d 1264, 1270 (9th Cir. 2011); see also Ge v. Ashcroft, 367
F.3d 1121, 1126 (9th Cir. 2004).
In sum, the record demonstrates “that the IJ and BIA have listed all possible
reasons to support an adverse credibility determination, and they are inadequate in
law or not supported by substantial evidence.” Soto-Olarte v. Holder, 555 F.3d
1089, 1095 (9th Cir. 2009). Accordingly, upon remand, the agency must deem
Li’s testimony as credible.
We grant Li’s petition and remand to the BIA to determine, taking Li’s
testimony as true, whether Li is eligible for asylum, withholding of removal, and
protection under the Convention Against Torture.
PETITION GRANTED; REMANDED.
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