Huang v. Gonzales, 03-4009.

• Decision Date: 14 April 2005
• Docket Number: No. 03-4009.,03-4009.
• Citation: 403 F.3d 945
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Xiu Ping HUANG, Petitioner, v. Alberto GONZALES, Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent.

403 F.3d 945

Xiu Ping HUANG, Petitioner, v. Alberto GONZALES, Attorney General of the United States,¹ Respondent.

No. 03-4009.

United States Court of Appeals, Seventh Circuit.

Argued December 15, 2004.

Decided April 14, 2005.

Benjamin E. Harrison, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Donald E. Keener, Alison R. Drucker, Department of Justice, Washington, DC, for Respondent.

Before KANNE, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Chinese citizen Xiu Ping Huang applied for asylum, claiming that she would be persecuted because of her membership in an illegal Catholic church if she returned to China. An immigration judge denied Huang's application after a hearing because he found that she was not credible and had failed to corroborate her testimony, even though the judge acknowledged that members of underground Catholic churches in China face widespread persecution. During the hearing, however, the immigration judge repeatedly interrupted the examination conducted by Huang's attorney and questioned Huang extensively about her Catholic beliefs and practices. In discrediting Huang, the immigration judge relied heavily on what he thought were unsatisfactory answers to his questions — all of which were based on information outside of the record. Our concerns about the judge's conduct during the hearing lead us to conclude that his decision is not supported by substantial evidence and, accordingly, we grant Huang's petition for review.

I. BACKGROUND

Huang arrived in September 2000 at Los Angeles International Airport without proper documents to enter the United States. She was sixteen years old at the time. Huang was interviewed at the airport and said that she had come to the United States because "I want to live here and hopefully, find a job." Officials refused her entry into the country and detained her for five months. At a hearing before an immigration judge in San Francisco shortly after her arrival, Huang said that she intended to seek asylum because she feared she would be persecuted on account of her religion if she returned to China. Huang then retained an attorney and applied for asylum. She subsequently moved to the Chicago area and was granted a change of venue. A new immigration judge denied her application after a hearing in July 2002. The Board of Immigration Appeals (BIA) affirmed without an opinion.

At the hearing, Huang testified that in 1997 she and her parents became active in an underground Catholic church in Changle, a city in China's Fujian province. She explained that the Chinese government allows Catholics to worship only at a single officially sanctioned church, which denounces the authority of the Pope, so many Chinese Catholics instead worship in illegal underground churches. Huang's church had about 15 worshippers, met in a neighbor's home, and was led by her father and another member of the congregation. The church held mass when it could, but its priest was not always available. In addition to mass, the church members met for scripture readings and Bible study.

Huang testified that officials at her junior high school in December 1998 discovered a rosary in her purse. Once the school learned of her Catholic beliefs, she said teachers and administrators gave her demerits, lowered her grades, and refused to let her take an entrance exam to attend senior high school. She testified that she was permitted to finish the ninth grade, but was refused a diploma for finishing junior high school and was not able to attend senior high school. Huang stayed at home for the next ten months, and during this time she read her Bible and attended church. Government officials later learned of Huang's underground church, and in July 2000 police raided her home. Huang was not home at the time but she testified that several people were arrested and that she thereafter went into hiding. She also testified that her father was later arrested and that her mother relocated several times to evade the authorities.

During the hearing, the immigration judge repeatedly interrupted Huang's direct examination and challenged her about Catholic doctrine and rituals. The judge's questioning was extensive, taking up approximately half the pages in the hearing's transcript. The information about Catholicism upon which the judge relied nowhere appears in the record, and in some instances he refused to allow Huang to explain what he believed were discrepancies or inaccuracies in her answers. Huang's attorney tried repeatedly to object, but the judge told counsel not to interrupt his questioning.

The immigration judge found that Chinese authorities "`have tightened their grip' over the official Catholic Church and sought to eliminate the underground Catholic Church which has not been [sic] to government control." But he nevertheless denied Huang's application because he found her not to be credible for several reasons: (1) her answers concerning her knowledge of Roman Catholicism were "disassembling" and contained what he believed was "clearly inaccurate" information; (2) she was unable to identify the whereabouts of the priest of her underground church in China; (3) she was unable to describe the Catholic church that she claimed to attend in Chicago and did not attend church regularly for reasons the judge found ranged "from the transparent to almost the ridiculous"; and (4) she mentioned nothing about religious persecution in her initial interview at the airport. In addition to finding Huang not credible, the immigration judge found that she failed to corroborate her testimony with even "the most commonsensical support" of her Catholic beliefs, such as a letter from her mother or her priest.

II. ANALYSIS

Huang challenges the immigration judge's credibility finding, arguing that it is unsupported by the record and does not provide substantial evidence for the decision denying her asylum. Where, as here, the BIA summarily affirms, we review the immigration judge's opinion as if it were that of the BIA. Ghebremedhin v. Ashcroft, 385 F.3d 1116, 1119 (7th Cir.2004). Our review is limited to determining if the immigration judge's decision is supported by substantial evidence. Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.2003). When a decision is based on an adverse credibility finding, we will defer to the immigration judge provided that the credibility finding is supported by "specific, cogent reasons" that "bear a legitimate nexus to the finding." Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir.2004) (internal citation and quotation omitted).

Huang first argues that she was "hardly given an opportunity to present a case" because the immigration judge took over her direct examination, turning it at times into "an outright interrogation." Huang does not argue that the immigration judge's conduct violated her right to due process, see Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir.2003) (per curiam) (immigration judge "took over the questioning" from applicant's attorney and excluded "complete chunks" of testimony); Podio v. INS, 153 F.3d 506, 509-10 (7th Cir.1998) (judge frequently interrupted testimony and refused to allow a supporting witness to testify), but instead claims that it influenced his credibility finding. In general, an immigration judge may question an asylum applicant provided that his conduct does not demonstrate impatience, hostility, or a predisposition against the applicant's claim. Hasanaj v. Ashcroft, 385 F.3d 780, 783-84 (7th Cir.2004). But here the immigration judge did more than ask Huang a few questions; he actively interjected himself into the proceedings, far exceeded his role of developing the record, and at times assumed an inquisitorial role. See id.; 8 C.F.R. §§ 208.9(b), 1208.9(b) (immigration judge shall conduct hearing "in a nonadversarial manner"). More troubling is the judge's repeatedly questioning based on his own assumptions about Catholicism rather than any information contained in the record. We are concerned that the judge's questioning of Huang's religious observance tainted his analysis of her credibility, and with that in mind we turn to Huang's specific arguments regarding the grounds given by the immigration judge for his adverse credibility finding.

Huang argues that the immigration judge's first ground for his credibility finding — Huang's purported lack of knowledge about Catholicism — is improperly based solely on the judge's own personal beliefs about the religion. Indeed, the Catholic doctrine and practices about which the judge assumed Huang should have been familiar are described nowhere in the record. Furthermore, the judge based his credibility finding partly on mischaracterizations of Huang's testimony and partly on perceived inaccuracies in her testimony that he did not allow her to explain. For example, the immigration judge characterized Huang as testifying that there exists multiple types of baptism in Catholicism, but then dismissed this testimony as "clearly inaccurate" because "there are not." But Huang never testified that there are multiple types of baptism; in response to repeated questions from the immigration judge, she stated only that the word "baptize" can be translated using two different Chinese terms. Later in the hearing, Huang's attorney sought to ask her about the different terms and about the specific ceremonial attributes of each, but the judge cut off this line of questioning, saying "I don't think it's been established exactly whether this difference, which the respondent did refer to, I agree, has any resonates in Catholic doctrine or teaching. . . . Unless you have some information to show that there is such a distinction made, there's no reason to pursue it." His ruling then faulted Huang for thinking that Catholics recognize multiple types of baptism — the very thing he refused to allow her to explain.

The record...