Wang v. I.N.S.

• Citation: 352 F.3d 1250
• Decision Date: 17 December 2003
• Docket Number: No. 02-72176.,Agency No. A72-693-706.,02-72176.
• Parties: Jiamu WANG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1250

352 F.3d 1250

Jiamu WANG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-72176.

Agency No. A72-693-706.

United States Court of Appeals, Ninth Circuit.

Submitted August 13, 2003.^* San Francisco, California.

Filed December 17, 2003.

COPYRIGHT MATERIAL OMITTED

Allan A. Samson, San Francisco, California, for the petitioner.

Donald A. Couvillon, Office of Immigration Litigation, Dept. of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: J. CLIFFORD WALLACE, CYNTHIA HOLCOMB HALL, and DIARMUID F. O'SCANNLAIN, Circuit Judges.

OPINION

WALLACE, Senior Circuit Judge:

Jiamu Wang, a native and citizen of the People's Republic of China, petitions for review of a Board of Immigration Appeals (Board) order denying his application for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 § 309(c). We conclude that the Board did not commit reversible error, and we deny Wang's petition for review.

I.

Around August 21, 1993, Wang, a forty-five-year-old male, entered the United States on a visitor's visa and petitioned for asylum. The Immigration and Naturalization Service (INS) denied Wang's asylum petition in 1993 and again in 1995. Wang has renewed his asylum bid in these proceedings. His current petition for asylum and withholding of deportation rests upon his claim that he fears future persecution in China due to past political activities and because he escaped forced sterilization.

Wang alleges that during the summer of 1989 he was employed by the Hang Cheng Machine Electrical Equipment Co., in Changle City, Fujian Province. Upon learning that government authorities were using force to quell the Student Democratic Movement in Beijing, Wang allegedly orchestrated a strike among co-workers in his own factory on June 3, 1989. As punishment for his participation in the strike, Wang states that government security officials arrested him a few months later at his home and placed him in prison where he received several severe beatings. Wang testified that one week after his arrest, the government issued an order for Wang to be forcibly sterilized, but he managed to escape his captors en route to the hospital. Wang testified that he later fled to Long Yan District, a two-day journey by train from Changle, where he acquired employment as a common laborer.

In August 1992, Wang abandoned China for Vietnam. With the aid of relatives living abroad, Wang secured a visitor's visa and passage to the United States. Wang's visa expired on February 20, 1994, and an Order to Show Cause issued on January 3, 1995.

At his removal hearing, Wang admitted the truthfulness of the factual allegations contained in the Order to Show Cause and conceded deportability. As relief from deportation, he submitted an application for asylum pursuant to Immigration and Nationality Act (INA) § 208, 8 U.S.C. § 1158, and with-holding of deportation pursuant to INA § 243(h), 8 U.S.C. § 1253(h). The Immigration Judge (IJ) denied Wang's application, concluding that Wang's documentary and testimonial evidence lacked credibility. The Board affirmed the IJ's decision without opinion.

II.

To qualify for asylum, Wang must demonstrate a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). In seeking withholding of deportation, he must meet an even higher burden of proof: "an alien must demonstrate that it is more likely than not that he would be subject to persecution on one of the specified grounds." Al-Harbi v. INS, 242 F.3d 882, 888(9th Cir. 2001) (internal quotations omitted).

Wang was denied asylum and withholding of deportation based on a finding that his evidence of persecution is not credible; therefore, we review this finding for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). Although this standard of review counsels great deference to the Board's adverse credibility determinations, the Board must nevertheless provide "a legitimate articulable basis" for challenging Wang's credibility, and it must "offer a specific, cogent reason for any stated disbelief." Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000) (internal quotation marks and citations omitted). Our task on this petition is limited to deciding whether the Board has satisfied this basic "substantial evidence" threshold.

Where, as here, the Board affirms an IJ's denial of asylum and withholding of deportation without opinion, we review the IJ's decision as though it were the Board's. Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000); see also Falcon Carriche v. Ashcroft, 335 F.3d 1009, 1014 (9th Cir.2003) ("The practical effect of this regulatory scheme is that, unless the [Board] opts for three-judge review, the IJ's decision becomes the [Board]'s decision.").

III.

The IJ based her adverse credibility finding on perceived inconsistencies within Wang's testimony, inconsistencies between his testimony and his documentary evidence, and inconsistencies between his testimony and that of his brother, Wang Jia Xing. The IJ's adverse credibility determination may not rest on incidental misstatements that do not go to the "heart of [Wang's] asylum claim." Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990). "Generally, minor inconsistencies and minor omissions relating to unimportant facts will not support an adverse credibility finding." De Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997).

A.

Wang's documentary evidence includes a marriage certificate, birth certificates for two children, a notarial certificate documenting his own birth, a report of his wife's sterilization, and an employment termination letter. The IJ questioned the documents' authenticity, observing that the INS's forensic analysis was unable to authenticate any of the documents. The IJ also cited a 1995 Department of State report stating that documentation from China and Southeast Asia is "marked by widespread fabrication and fraud." Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, China — Country Conditions and Comments on Asylum Applications 13 (Dec. 1, 1995) ("A Chinese official with responsibilities relating to notarial offices in Fujian Province last year told our Consulate that no reliable documents existed to confirm information...."). The IJ concluded from the forensic study and State Department Report that "it is difficult to know whether [Wang's] documents should be given any weight" and admitted the documents only for the limited purpose of evaluating Wang's credibility.

To the extent that the IJ based her adverse credibility finding upon Wang's failure to supply affirmative authentication for the documents, her finding does not meet our substantial evidence standard. Mere failure to authenticate documents, at least in the absence of evidence undermining their reliability, does not constitute a sufficient foundation for an adverse credibility finding. In Shah v. INS, 220 F.3d 1062(9th Cir. 2000), we concluded:

The [Board]'s suggestion that [documents] submitted as evidence are unreliable or forgeries is an impermissible basis for deeming them not credible. There is no evidence in the record to indicate that the [documents] are anything but what [they purport to be].... We cannot uphold an adverse credibility finding that rests on conjecture and speculation.

Id. at 1071. Here, admittedly, the INS did not rest solely on conjecture and speculation; instead it submitted the documents to experts to determine authenticity. However, although these experts could not discern whether the documents were authentic, they did not find them forgeries either. Such a finding might constitute some additional evidence, but our prior decisions dictate that alone it is not enough. It may be suspicious when forensic experts cannot determine authenticity, especially given the State Department's general observations regarding the high incidence of document fabrication in China, yet this alone cannot constitute a basis for an adverse credibility finding. Id. Thus, the INS's failure to authenticate Wang's documents does not provide a reasonable basis for concluding that these documents are anything other than what they purport to be.

The IJ expressed concern that the dates provided in the marriage and birth certificates differed from those offered in Wang's testimony. Nevertheless, these so-called "minor discrepancies" do not justify an adverse credibility finding. Chen v. INS, 266 F.3d 1094, 1100 (9th Cir.2001), vacated, 537 U.S. 1016, 123 S.Ct. 549, 154 L.Ed.2d 423 (2002) (mem.), reversal reaff'd, 326 F.3d 1316 (2003); Shah, 220 F.3d at 1068; Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986). We have speculated in our prior decisions that such discrepancies could have been caused by the mistakes of typists, clerks, or translators. Given our assumptions that these minor discrepancies can be attributed to causes other than a deliberate attempt to enhance the petitioner's persecution claims, we do not allow the Board to afford these inconsistencies conclusive weight in assessing a petitioner's credibility. Shah, 220 F.3d at 1068. Therefore, while suspicious, these inconsistencies alone cannot form the basis for an adverse credibility finding.

The IJ also found reason to question Wang's credibility based on the birth certificates of his two children and his wife's sterilization record. Both birth certificates had been issued by hospitals, but Wang testified that his wife gave birth to their children at home. Finding this apparent inconsistency "troublesome," the IJ complained that she had "no way of knowing why a hospital would give a certificate for a birth with which it had no involvement." Wang had an answer, however: he asserted that...