Li v. Ashcroft ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUN HE LI,  No. 02-72689
Petitioner
v.  Agency No.
A70-011-792
JOHN ASHCROFT, Attorney General,
ORDER
Respondent.

Filed February 2, 2005
Before: Jerome Farris, John T. Noonan, and
Johnnie B. Rawlinson, Circuit Judges.
Order;
Dissent by Judge Hawkins
ORDER
A judge sua sponte called for rehearing en banc. The matter
failed to receive a majority of the votes of the nonrecused
active judges in favor of en banc consideration. Fed. R. App.
P. 35(b). Accordingly, the sua sponte call for rehearing en
banc is rejected.
The mandate shall issue in due course.
1311
1312 LI v. ASHCROFT
HAWKINS, Circuit Judge, with whom Judges PREGERSON,
THOMAS and PAEZ join, Dissenting from the Order Deny-
ing En Banc Review:
It is unfortunate that we did not grant the Petition for
Rehearing En Banc here. As Judge Noonan’s dissent from the
panel opinion makes clear,1 this was a strong case on the mer-
its of Li’s asylum claim. Li violated China’s one-child policy,
a form of persecution that Congress recognizes as a basis for
asylum, by fathering three children. These undisputed core
facts establish a claim for asylum that should have been
impervious to inconsistencies not at its heart. See Singh v.
Ashcroft, 301 F.3d 1109, 1111 (9th Cir. 2002).
Li has every reason to fear officially-sanctioned persecu-
tion if returned to China. Following the birth of his second
and third children, Li was fined substantially and his wife was
sterilized. But the merits of this compelling case were never
reached because Li was judged to lack credibility. Judge Noo-
nan cogently describes the thin veneer underlying that deter-
mination:
[B]ased on misinterpreting Li’s candid testimony
about hiding in China, exaggerating the significance
of his memory of the fines; chastising him for not
embroidering what he suffered as officials enforced
the official population policy, guessing that his
wife’s sterilization was voluntary, and marveling at
his non-assertions of a basis for asylum at times
when it could not have been legally effective, the IJ
found Li incredible on the issue of past persecution.
378 F.3d at 967 (Noonan, J. dissenting).
1
Li v. Ashcroft, 378 F.3d 959, 964-68 (9th Cir. 2004) (Noonan, J., dis-
senting).
LI v. ASHCROFT 1313
That the IJ got it wrong factually and the panel accepted the
result would be far less troubling and less worthy of en banc
consideration were it not plain that, along the way, two of our
cardinal principles relating to credibility determinations were
simply ignored. The first of these is that an adverse credibility
determination cannot stand if based on speculation or conjec-
ture. See Shah v. INS, 220 F.3d 1062, 1069, 1071 (9th Cir.
2000); Kaur v. Ashcroft, 379 F.3d 876, 887-88 (9th Cir.
2004); Ge v. Ashcroft, 367 F.3d 1121, 1125 (9th Cir. 2004);
Guo v. Ashcroft, 361 F.3d 1194, 1201-02 (9th Cir. 2004);
Arulampalam v. Ashcroft, 353 F.3d 679, 687-88 (9th Cir.
2003); Wang v. INS, 352 F.3d 1250, 1255-56 (9th Cir. 2003);
Paramasamy v. Ashcroft, 295 F.3d 1047, 1052 (9th Cir.
2002); Singh v. INS, 292 F.3d 1017, 1024 (9th Cir. 2002); Gui
v. INS, 280 F.3d 1217, 1226-27 (9th Cir. 2002); Salaam v.
INS, 229 F.3d 1234, 1238 (9th Cir. 2000) (per curiam); Ban-
dari v. INS, 227 F.3d 1160, 1167-68 (9th Cir. 2000); Chouch-
kov v. INS, 220 F.3d 1077, 1083 (9th Cir. 2000); and Lopez-
Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996). Here, the IJ
repeatedly engaged in rank speculation and conjecture, one
flagrant example of which is her declaration that Li’s wife
might have voluntarily submitted to sterilization.
The second principle is this: where an asylum seeker offers
an explanation for a perceived inconsistency, the IJ must con-
sider and address that explanation; failing to do so vitiates the
inconsistency as a basis to determine adverse credibility. See
Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004); Guo v.
Ashcroft, 361 F.3d 1194, 1200-01 (9th Cir. 2004); Hakeem v.
INS, 273 F.3d 812, 816 (9th Cir. 2001); Chen v. INS, 266 F.3d
1094, 1100 (9th Cir. 2001), overruled on other grounds by
INS v. Ventura, 537 U.S. 12 (2002) (per curiam); and Gar-
rovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998). Here, the
panel majority relied heavily upon an inconsistency between
Li’s hearing testimony and his airport entry interview.2 But
2
We have heretofore been reluctant to accord weight to statements that
immigrants make to authorities in airport interviews. See Singh v. INS, 292
F.3d 1017, 1021-22 (9th Cir. 2002).
1314 LI v. ASHCROFT
nowhere in the record did the IJ comment on Li’s explanation
(that he feared that a truthful response in the airport interview
would result in his immediate return to China).
We should have taken this case en banc and remanded Li’s
petition for the BIA to determine the merits of Li’s asylum
claim shorn of the inappropriate credibility determination.
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