Pang v. Bureau of Citizenship and Immigration Services

• Decision Date: 03 May 2006
• Docket Number: Docket No. 03-40333.
• Citation: 448 F.3d 102
• Parties: ZHI WEI PANG, Petitioner, v. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 102

448 F.3d 102

ZHI WEI PANG, Petitioner, v. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, Respondent.

Docket No. 03-40333.

United States Court of Appeals, Second Circuit.

Argued: February 27, 2006.

Decided: May 3, 2006.

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Joshua Bardavid (Theodore N. Cox, on the brief), New York, New York, for Petitioner.

Linda R. Anderson, Assistant United States Attorney (Dunn Lampton, United States Attorney for the Southern District of Mississippi, on the brief), Jackson, Mississippi, for Respondent.

Before: SOTOMAYOR and RAGGI, Circuit Judges, and CEDARBAUM,^* District Judge.

Judge RAGGI concurs in a separate opinion.

CEDARBAUM, District Judge:

Petitioner Zhi Wei Pang, a citizen of the People's Republic of China, petitions for review of a July 24, 2003 order of the Board of Immigration Appeals ("BIA") affirming the order of Immigration Judge Roxanne C. Hladylowycz (the "IJ") denying petitioner's request for asylum under section 208 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158, and for withholding of removal pursuant to INA Section 241(b)(3), 8 U.S.C. § 1231(b)(3). Pang argues that the IJ erred by relying on a number of improper grounds in making an adverse credibility finding. The questions presented on this petition for review are: (1) whether the IJ erred in relying on inconsistencies arising from an asylum application that was neither signed by the preparer nor sworn to by the applicant before an immigration official as a basis for reaching an adverse credibility determination without considering evidence that the applicant did not know the application's contents; (2) whether the IJ gave the applicant adequate opportunity to address what the IJ viewed as inconsistencies in the applicant's testimony. We hold that the IJ erred. We grant the petition for review and remand to the BIA because we cannot predict that the IJ would reach the same adverse credibility determination absent the errors that were made.

I. BACKGROUND

Pang arrived in the United States on May 15, 1993. In August of that year, Pang filed his first asylum application. After an initial immigration proceeding in October 1996, Pang's asylum hearing was adjourned on a number of occasions. Pang had two A numbers, the first of which was opened upon his arrival in the United States near Calexico, California and the second of which was opened when he applied for asylum and withholding of removal. The confusion arising from these two numbers contributed to the delay in adjudicating Pang's case. Pang completed a second I-589 application for asylum and withholding of removal on May 28, 2000, shortly before his asylum hearing. He affirmed that application, but not his originally filed I-589, at an asylum hearing on June 20, 2000. Pang sought relief based on his contention that his wife had been forcibly sterilized after the birth of their second child, that they had been harassed and fined, and that he feared further persecution if he were returned to China.

According to Pang's testimony before the IJ, Pang's first child, a daughter, was born on November 24, 1988. Soon after the birth of their child, Pang and his wife were visited by family planning authorities. Pang's family was allowed only one child under the family planning policy, and the authorities required Pang's wife to have an intrauterine device ("IUD") inserted. The couple, however, strongly desired a son, and so Pang and his wife paid a private physician to remove the IUD. Soon after the IUD was removed, Pang's wife became pregnant again. Several months later, as the pregnancy became visible, authorities arrived at Pang's house and ordered his wife to report for an abortion. Pang and his wife, who had relatives visiting them at the time, convinced the authorities to permit them to report for the abortion the next morning. Instead, they fled to a relative's house several hours away.

They remained away from home for the duration of the pregnancy, and their second child was born in a government hospital near the house in which they were hiding. Several days after Pang and his wife returned home, the authorities arrived and forcibly took his wife to undergo a sterilization procedure. In addition to the forced sterilization, the couple was fined 3000 Yuan for having more than one child. Unable to pay the entire fine, Pang and his wife paid 1500 Yuan using money borrowed from friends and relatives. Family planning officials subsequently confiscated a television and a VCR from Pang's house. The authorities ultimately allowed Pang to register his second child in the household registration booklet. Additionally, the sterilization of Pang's wife was poorly performed, and she became pregnant a third time. That pregnancy was ectopic, non-viable, and dangerous to his wife's health. She underwent a medical procedure to end the dangerous pregnancy and correct the initial sterilization. After his wife's health improved, Pang left China for the United States.

The IJ denied Pang's application based on an adverse credibility finding. The IJ supported that finding with approximately eight aspects of Pang's testimony which the IJ labeled as inconsistent or implausible. The BIA affirmed the IJ's ruling without opinion.

Pang challenges the adverse credibility finding, which formed the sole basis for the IJ's denial of his application. The eight inconsistencies identified by the IJ may be classified into two categories. First, there were several alleged inconsistencies between the statements Pang made in his 1993 application for asylum and the statements he made in his second application and at the hearing. Secondly, the IJ found that there were several other inconsistencies between Pang's testimony at the hearing and the statements in his second application, that certain aspects of Pang's testimony were implausible, and that Pang had omitted some significant facts from his written application. Pang argues that the IJ's findings were based on speculation, conjecture, and flawed reasoning.

II. DISCUSSION

In cases like this, in which the BIA affirms the IJ's order without opinion, we review the order of the IJ directly. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Furthermore, our review is confined to the reasons given by the IJ, and we will not search the record for alternative reasons to affirm the decision of the BIA. Id.

We review an IJ's factual findings under the substantial evidence standard, reversing only if a reasonable fact finder would be compelled to reach a contrary conclusion. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We vacate the IJ's decision, however, when the IJ's finding is based on an error of law or when the findings are not supported by evidence in the record. Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003). The fact that an IJ or the BIA relied solely on an adverse credibility finding in dismissing an application does not insulate the decision from review. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). An adverse credibility finding must be based on specific, clear reasons with a legitimate nexus to the finding. Secaida-Rosales, 331 F.3d at 307. Inconsistent testimony can, by itself, support an adverse credibility finding, but not if the inconsistencies are minor, isolated, or peripherally related to the claim. Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000). Adverse credibility findings are improper and may be overturned when they are based on speculation, conjecture, or flawed reasoning. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 400 (2d Cir.2005). Adverse credibility findings may also be overturned when the applicant is not given an opportunity to explain "non-dramatic putative contradictions or incongruities" in his narrative. Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.2006)

A. THE 1993 ASYLUM APPLICATION

At the hearing, Pang argued that the statements in his 1993 application for asylum were inaccurate in several respects. The fifth page of the 1993 application includes lines for three signatures. The first line requires the signature of the applicant certifying under penalty of perjury that the information in the application is true. The second line requires the signature of the preparer and certifies that the application has been read back to the applicant in his native language. The third line requires the applicant to take an oath and sign the application in front of an Asylum Officer or an Immigration Judge. The applicable regulation states that the application must be signed by the applicant and the preparer under penalty of perjury. 8 C.F.R. § 208.3(c)(2). The regulation further provides that the "applicant's signature establishes a presumption that the applicant is aware of the contents of the application." 8 C.F.R. § 208.3(c)(2). Pang's 1993 application contains his signature only on the first line. The portion which requires that he sign and swear to the application in front of an immigration official is blank. In addition, the line for the preparer's sworn representation that the application was read to the applicant for verification is also blank. But because Pang signed the first signature line under penalty of perjury, the presumption of § 208.3(c)(2) was triggered.

Pang testified that no one had ever read him the contents of the 1993 application and that he had signed it because the preparer told him to sign it. He further testified that some of the information contained in the 1993 application was incorrect and that the preparer had incorrectly reported aspects of his story.

While the fact that the 1993 application lacked several signatures does not make it unreliable per se, it does support Pang's claim that the application was improperly prepared in other respects. Pang's testimony is plausible, and if credited by the IJ it would have rebutted the presumption that Pang was aware of the application's contents. The IJ,...