Yan Xia Zhu v. Mukasey

• Decision Date: 31 July 2008
• Docket Number: No. 06-72967.,06-72967.
• Citation: 537 F.3d 1034
• Parties: YAN XIA ZHU, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

537 F.3d 1034

YAN XIA ZHU, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-72967.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 2008.

Filed July 31, 2008.

David Z. Su, Monterey Park, CA, for the petitioner.

Sada Manickam and Jacob A. Bashyrov, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A78-399-759.

Before: W. FLETCHER and RONALD M. GOULD, Circuit Judges, and LOUIS H. POLLAK,^* Senior District Judge.

Opinion by Judge POLLAK; Concurrence by Judge GOULD.

POLLAK, District Judge:

Petitioner Yan Xia Zhu seeks review of the Board of Immigration Appeals' ("BIA") order affirming the opinion of the immigration judge ("IJ") denying petitioner's applications for relief from removal. The BIA adopted the IJ's opinion holding that petitioner's testimony was not credible, and that her testimony, even if believed, did not establish eligibility for asylum. For the reasons given below, we grant her petition for review and remand for further proceedings.

I.

Petitioner is a 34-year-old native and citizen of China. On July 4, 2000, she attempted to enter the United States with a false passport. She was served with a notice to appear, admitted its allegations, and conceded removability. She applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").

During the hearing on her applications for relief, on October 25, 2004, petitioner testified — through a translator — that, prior to leaving China in 2000 at the age of 26, she had worked in a state-owned clothing factory for five or six years. The manager of her factory, Fu Jie Zhang, was a married man over the age of 40 who was "always talking some nasty words in front of the female employees."

Petitioner testified that, in February 2000, petitioner along with other female employees reported the manager's inappropriate comments to the head of the factory, who responded that they should keep quiet because the manager "has very big friendship net with the upper level authorities."

Petitioner testified that on March 28, 2000, the manager hit her, causing her to lose consciousness, and then raped her. The incident began when petitioner was called to the manager's office after work had ended:

He said I will promote you to be a group leader. I say okay. And, he — then he said you look beautiful today. Then after that, he continued to say some nasty words to me.... And then, he asked me to sit down and asked me, said you can be my wife. And then, I say no. And then he used his hand, and I was scared. And, I want to run away. And then he grabbed my clothes and give me a beat.... Then, he made a hit and then I faint. I lose my consciousness.... I fell. He hit me on my head. And then, I was so scared.... When I woke up, I felt a headache, so I believe he used his hand to beat my head .... I felt I was on the sofa.... I was so scared, I was crying. And I put on my clothes. Then I returned home.... There, I was crying. My parents — my parents felt why I came back so late that night, and they saw my eyes were red. And then I was crying. And, I told my parents about that. And then my mother was crying too. And both my parents were so angry.... And later on, when they were calmed down, and they said since he has a big power, you know, and we just unlucky to have this kind of thing happen on us.... My mother told me, we just forget about this. He has a big power. He would say these kind of things to others. It's kind of shameful for us.

Petitioner testified that she knew she had been raped when she woke up because she felt "painful in [her] lower body" and "saw the red — some red in [her] pants."

Petitioner felt unable to eat or go to work and went to stay at her cousin's home in a village twenty minutes away by bicycle. Petitioner testified that she "dare[d] not to report [the rape] at the very beginning .... because first, this person has power. And second, this kind of thing is kind of shameful in [her] countryside area." However, her cousin tried to convince her to report the rape, and petitioner began to feel angry and that she "could not swallow this."

Petitioner testified that, at the end of April 2000, approximately one month after the rape, she wrote a letter to the town government "request[ing] the town government to make an investigation" into her rape by the factory manager, who also held a political position. The letter — of which petitioner did not keep a copy — also complained that "the government officers even let this kind of a person to be an officer"; that the factory manager only got his political position because a "town government officer ... was his relative and helped him to get his position"; that other officials "protect this person" "because the government officer[ ] is his relative"; and that "[i]f we cannot get rid of this kind of people, our country will be corrupt."

Petitioner testified that, a week after she mailed the letter, on the second or third day of May, her mother called her at her cousin's house to tell her that policemen had come to their house to try to arrest petitioner. Petitioner's mother reported that the police had told her that her "daughter wrote a letter and tried to sue the government" and that petitioner had thus done "something against the government." Petitioner's mother, whom petitioner had not told about sending the letter, scolded her for writing it.

The police went to petitioner's family's home a second time, a few days later, on May 6 or May 7, 2000. Petitioner testified that the police continued to visit her family's home looking for her after she left China, with the last such visit being Chinese New Year in 2002. (Petitioner speculated that they came on that day "because that's a family gathering day for Chinese people.")

Petitioner testified that she left China on June 1, 2000. A smuggler brought her and ten others to the United States via Hong Kong and Chile. She arrived in the United States on July 4, 2000 and was apprehended at the Miami airport carrying a false Malaysian passport.

Petitioner testified that she finds it difficult to maintain normal sexual relationships with men because of her rape by the factory manager; she has been married and divorced since coming to the United States. She submitted a psychiatrist's evaluation describing her "problems of reexperiencing the trauma of being raped by a man in China four years ago, especially during sexual intercourse, and her inability to maintain a relationship."

The IJ entered an adverse credibility finding against petitioner and found, as a result, that petitioner had not presented credible evidence in support of her applications for asylum, withholding of removal, and CAT relief. With respect to petitioner's asylum application, the IJ also found, in the alternative, that petitioner was not eligible for asylum because her testimony, even if credited, did not establish mistreatment on a protected ground. The BIA affirmed, adopting the opinion of the IJ.

II.

We review for substantial evidence the BIA's decision that an alien has not established eligibility for asylum. Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006). We must uphold the BIA's determination if it is "supported by reasonable, substantial, and probative evidence in the record." Lopez v. Ashcroft, 366 F.3d 799, 802 (9th Cir.2004) (internal citation and quotation marks omitted). Under the Immigration and Nationality Act, "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). We review questions of law de novo. Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir. 2008).

In denying petitioner's appeal, the BIA issued an order citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), rather than an opinion. "The BIA thereby signaled' that it had conducted an independent review of the record and had exercised its own discretion in determining that its conclusions were the same as those articulated by the IJ.'" Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir.2007) (quoting Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.2005) (en banc)).

III.

Petitioner bears the burden of establishing her eligibility for asylum and withholding of removal. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001). Petitioner "must demonstrate that [she] has suffered past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. (citing 8 U.S.C. § 1101(a)(42)(A)). "`Because asylum cases are inherently difficult to prove, an applicant may establish his case though his own testimony alone.'" Id. (quoting Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997)). However, "if the trier of fact either does not believe the applicant or does not know what to believe, the applicant's failure to corroborate his testimony can be fatal to his asylum application." Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir.2000) (citing 8 C.F.R. § 208.13).

A. Adverse Credibility Finding

Petitioner contends that the IJ's adverse credibility finding is not supported by substantial evidence.

"To support an adverse credibility determination, the BIA must have a `legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief.'" Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir.2003) (quoting Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996)). "`Speculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence.'" Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir.2004) (quoting Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000)).

"It is well settled in our circuit that minor inconsistencies that do not go to the...