He v. Ashcroft
| Decision Date | 12 May 2003 |
| Docket Number | No. 00-70652.,00-70652. |
| Citation | 328 F.3d 593 |
| Parties | Wang HE, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jisheng Li, Law Office of Jisheng Li, Honolulu, HI, for petitioner.
Karen Fletcher Torstenson and Heather R. Phillips, Office of Immigration Litigation, Washington, DC, for respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A76-280-045.
Before COWEN,* HAWKINS and W. FLETCHER, Circuit Judges.
In this case, we review a denial of asylum and an explicit finding by the Board of Immigration Appeals ("BIA") that petitioner Wang He's testimony in support of his asylum application was not credible. After fleeing China, Mr. He arrived in Guam and sought asylum and withholding of removal. Mr. He claimed that he and his wife had been persecuted by the Chinese government based on their opposition to China's population control policies. Specifically, he claimed that, following the birth of their second child, his wife had been involuntarily sterilized. Based on that past incident of persecution, Mr. He requested asylum. The BIA found that Mr. He was not credible and refused to believe that his wife had been involuntarily sterilized.
We hold that the BIA's adverse credibility finding was not supported by substantial evidence. We therefore conclude that Mr. He has established his eligibility for asylum. We remand for a determination of Mr. He's eligibility for withholding of removal and, in the event he is not found eligible for withholding of removal, for the exercise of the Attorney General's discretion whether to grant asylum.
On January 5, 1995, petitioner Wang He married. Just over a year later, he and his wife had their first child, a daughter. Mr. He and his wife married before they reached the legal age for marrying, and they had their first child before they reached the legal age for child-bearing. Because of their age, they were fined when Chinese birth control officials learned of the birth of the child. Mr. He paid the fine. Over three years later, on September 4, 1998, they gave birth to their second child, a son. Mr. He claims that his wife was forcibly sterilized a month after the second birth.
According to Mr. He's testimony before the Immigration Judge ("IJ"), a group of ten, or possibly more, officials arrived at his house at about 7:00 am on the morning of October 5, 1998. Mr. He attempted to block the door, but several members of the group forced their way into the house and held Mr. He against a wall. They then forced Mr. He's wife out of the house and drove her to the hospital. Mr. He asked his mother to take care of his children, and he and his sister-in-law hired a motorized tricycle to go to the hospital.
Mr. He arrived at the hospital at about 7:30 am. Mr. He testified that after waiting "for a little while" at the hospital, he saw his wife walking out of the hospital. She was pale and was supported by two nurses as she walked. He and his wife did not speak. Mr. He said, According to Mr. He, a woman from the hospital gave him a sterilization certificate before they left. Also before they left, a man from the Birth Control Office said that Mr. He would have to pay a large fine for having a second child. Mr. He testified that he never paid the second fine.
Documentary evidence was introduced at the hearing to support Mr. He's testimony. That evidence included a photograph of Mr. He and his wife. The IJ wondered aloud at the hearing whether the photograph was a composite of two individually taken photographs, but did not take steps to obtain a forensic determination of whether this was so. Other evidence included a receipt for 5,000 RMB, dated February 10, 1996, evidencing payment of a "Fine for having a child before reaching the required age"; a photograph of the sterilization scar on the abdomen of Mr. He's wife; and a sterilization certificate dated October 5, 1998.
Sometime after his wife's sterilization, Mr. He fled China. After arriving in Guam on a smuggler's boat, Mr. He was detained by INS agents. He requested asylum and withholding of removal. A hearing was held before an IJ on Guam.
We review credibility findings under a substantial evidence standard. See Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir.1990); see also 8 U.S.C. § 1252(b)(4)(B) (); INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) . Adverse credibility findings are thus afforded significant deference, but the IJ and the BIA must nonetheless offer a "specific, cogent reason for any stated disbelief." Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994). We generally review only the BIA's credibility decision, see Castillo v. INS, 951 F.2d 1117, 1120 (9th Cir.1991), but when the BIA incorporates the IJ's decision as its own, we treat the IJ's reasons as the BIA's, see Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir.1996).
After hearing Mr. He's testimony, the IJ concluded that Mr. He's story was implausible but stopped short of making an explicit adverse credibility determination. Rather, he held that even if Mr. He's testimony were taken as credible, he had not established that his wife had been involuntarily sterilized. The BIA, however, did make an adverse credibility finding. It noted a problem in the timing of events in Mr. He's story. "This problem, combined with the other problems noted by the Immigration Judge, cause us to be in agreement with his assessment that the respondent's story in this regard is not credible." Because the BIA's adverse credibility finding relied on the combination of the problems the IJ noted and the timing problem it noted on its own, we examine both the oral opinion of the IJ and the written decision of the BIA.
A. Interpreting Difficulties
At the outset, we note that some of the evidentiary problems in this case appear to stem from interpreting difficulties. Mr. He had a hearing on Guam on Monday, September 13, 1999, before an IJ who was detailed from the continental United States only until the end of that week. The interpreter spoke Mandarin but did not speak Mr. He's dialect. After the following exchange, the IJ nevertheless decided to proceed:
Q. [By the IJ:] Now Ms. Way [the interpreter], did you have a chance to talk to Mr. He, Wang, here in the last few minutes.
A. Yes, Your Honor.
Q. And, what language does he speak?
A. He speaks Mandarin. He said that he tried to speak in Mandarin, only a few words, maybe he was speaking his own hometown dialect, which is Foo Ching dialect.1
Q. All right.
...
A. I could understand a little of the Foo Ching dialect.
Q. [IJ to Mr. He:] Mr. He, what language do you speak the most fluent?2
A. [Through the translator:] It's hard to talk about fluently. But, I will speak very slowly in Mandarin. Sometimes it's hard for me speak Mandarin. I convert to Mandarin.
Q. How much education do you have?
A. I had a first year of junior high school [after five years of elementary school].
Q. First year. Did you learn Mandarin in school?
A. Yes. I did study Mandarin when I was in school, but after that — after I get out of school, I was doing farming. So, I did not have a chance to talk to outside people. So, I kind of forgot it.
Q. All right. Let me tell you what we're going to do. We're going to proceed these proceedings in the Mandarin language, because even though I reviewed your case last Saturday, and realized that there was a question whether we had a Foo Ching interpreter or not, apparently we don't. But, you appeared in court on at least three occasions, all on telephonic hearing. And thereby, during those hearings, you spoke Mandarin. All right. So we're going to proceed in the Mandarin language. And, when you have a problem understanding the questions, please let me know.
A. Yes.
The IJ was partially mistaken in his understanding of what had transpired in the three preliminary hearings. All three were relatively short telephonic hearings, conducted by a different IJ, dealing with matters such as scheduling and obtaining an attorney. During all three hearings, Mr. He had been in Guam and the IJ had been in Hawaii. During the first two hearings, the translator had spoken Mandarin. During the third hearing (the longest of the three), the translator had spoken the Foo Chow (not the Foo Ching) dialect.
Mr. He did not object to the IJ's decision to proceed on September 13 with the translator who spoke Mandarin but not his Foo Ching dialect, and he does not argue here that his due process rights were violated by the use of this translator. But it is clear from the transcript that Mr. He had difficulty understanding and making himself understood. Indeed, some portions of the transcript read like "Who's on First." We give two examples. Both occurred during questioning by the IJ, and, in both, the difficulty was compounded by the IJ's impatience.
First, Mr. He had difficulty telling the IJ how old he was:
Q. [By the IJ:] When you were born? When you were born on September 2, 1976, how old were you when you were born?
A. You mean, now?
Q. No, no. I said, when you were born on September 2, 1976, how old were you on that date, according to your custom?
A. There are two counts. You can count it one day old or you can count it one year old.
Q. All...
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