Su Chun Hu v. Eric H. Holder, Jr., United States Attorney, No. 08-2998 (2d Cir. 2009)

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08-2998-ag Su Chun Hu v. Eric H. Holder, Jr., United States Attorney General 1 2 3 4 5 6 7 8 9 10 11 12 13 14 - - - - - - - - - - - - - - - - - - - -X 15 Su Chun Hu, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: June 23, 2009 Decided: September 3, 2009) Docket No. 08-2998-ag 16 Petitioner, 17 -v.- 18 Eric H. Holder, Jr., * United States Attorney General, 19 Respondent. 20 21 - - - - - - - - - - - - - - - - - - - -X Before: 22 23 24 25 26 27 B. D. PARKER and WESLEY, Circuit Judges, and CEDARBAUM, District Judge. ** Petition for review of an order of the Board of Immigration Appeals affirming the Immigration Judge s decision denying * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. ** The Honorable Miriam Goldman Cedarbaum, United States District Judge for the Southern District of New York, sitting by designation. 1 Petitioner asylum, withholding of removal, and relief under the 2 Convention Against Torture, and ordering Petitioner s removal. 3 The petition for review is GRANTED, the order of the Board of 4 Immigration Appeals is VACATED, and the case is REMANDED. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Gary J. Yerman, Esq. New York, NY for Petitioner Lynda A. Do, Esq. Office of Immigration Litigation Civil Division, United States Department of Justice Washington, D.C. for Respondent PER CURIAM: Su Chun Hu petitions for review of a May 27, 2008 order of 22 the Board of Immigration Appeals ( BIA ) dismissing her appeal 23 from the Immigration Judge s ( IJ ) decision of July 6, 2006. 24 Hu argues that the IJ s adverse credibility determination is not 25 supported by substantial evidence. 26 her petition for review is GRANTED, the order of the BIA is 27 VACATED and the case is REMANDED for further proceedings. 28 I. 29 For the following reasons, Background Su Chun Hu is a native and citizen of the People s Republic 30 of China. She seeks asylum, withholding of removal, and relief 31 under the Convention Against Torture ( CAT ) on the ground that 32 she has suffered past persecution and has a well-founded fear of 2 1 future persecution because of China s coercive family planning 2 policy. 1 3 Sandy Hom, Hu testified that she was forced to undergo an 4 abortion on June 9, 2000. 5 appear at a clinic to have an intrauterine device inserted 6 several months after the forced abortion, her mother-in-law was 7 taken as a hostage and released only after Hu and her husband Yu 8 Ye posted an RMB 20,000 bond. 9 beaten and incarcerated should she return to China, and that At a July 9, 2002 hearing before Immigration Judge She stated that when she did not She fears that she will be 10 she will also be subject to China s coercive family planning 11 policy. Hu applied for asylum upon her initial arrival in the 12 13 United States on July 31, 2001. Removal proceedings were 14 started against her on August 9, 2001. In an oral decision at the July 9, 2002 hearing, the IJ 15 16 stated that Hu s testimony was not credible because of certain 17 inconsistencies in her testimony as well as conflicts between 18 her testimony and other evidence in the record. 19 noted that Judge Hom did not comment on Hu s demeanor in his 20 2002 decision. 21 the IJ denied Hu asylum, withholding of removal, and relief It should be Based on his adverse credibility determination, 1 8 U.S.C. § 1101(a)(42) provides that persecution on account of political opinion includes being subject to a forced abortion or sterilization, or persecution for resistance to a coercive population control program. 3 1 under the CAT, and ordered her removal. Hu appealed to the BIA, 2 which affirmed without opinion on November 20, 2003. 3 Chun Hu, No. A 79 414 877 (B.I.A. Nov. 20, 2003) aff g No. A 79 4 414 877 (Immig. Ct. N.Y. City July 9, 2002). 5 petition for review in this court. In Re Su Hu filed a 6 The November 20, 2003 order of the BIA was vacated and 7 remanded to the IJ on the ground that the July 9, 2002 order of 8 the IJ was based on unspecified inconsistencies, flawed 9 reasoning and misunderstanding of evidence. Su Chun Hu v. 10 Gonzales, 160 Fed. App x 98, 101-02 (2d Cir. 2005). 11 On remand, no further testimony was taken. On July 6, 12 2006, Judge Hom issued a written decision in which he attempted 13 to outline the specific inconsistencies and conflicts that arose 14 in the respondent s presentation. 15 inconsistencies and conflicts in Hu s evidence, the IJ 16 repeatedly noted that Hu s demeanor undermined her credibility. 17 For example, he noted that when Hu was asked to explain an 18 apparent inconsistency, she responded with testimony that was 19 further confusing and appeared to the court to be an obvious 20 attempt to side-step the issue with non-responsive answers. 21 In addition to pointing out The IJ also found that Hu s testimony about her forced 22 abortion was insufficient and lacking based on the demeanor 23 and the timbre of her testimony which was suggestive of 24 someone who has never experienced an abortion procedure and was 4 1 more akin to a routine gynecological pap smear check-up, 2 rather than a life-altering traumatic experience. 3 Based on his adverse credibility determination, the IJ 4 concluded that Hu had not met her burden of proof for asylum, 5 and so she could not meet the higher standard of proof 6 required for withholding of removal or relief under the CAT. 7 again denied Hu all relief and ordered her removal. 8 9 The BIA affirmed Hu s administrative appeal. He In Re Su Chun Hu, No. A 79 414 877 (B.I.A. May 27, 2008), aff g No. A 79 414 10 877 (Immig. Ct. N.Y. City July 6, 2006). 11 petition for review by this court on June 18, 2008. 12 II. Analysis 13 Hu filed a timely When the BIA adopts and supplements the IJ s opinion, we 14 review the IJ s opinion as supplemented by the BIA. Yan Chen v. 15 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 16 Questions of law and the application of law to undisputed Bah v. Mukasey, 529 F.3d 99, 110 (2d 17 fact are reviewed de novo. 18 Cir. 2008). 19 under the substantial evidence standard which treats them as 20 conclusive unless any reasonable adjudicator would be compelled 21 to conclude to the contrary. 22 529 F.3d at 110. 23 requires that the factual findings be supported by reasonable, We review the factual findings of the IJ and BIA 8 U.S.C. § 1252(b)(4)(B); Bah, However, the substantial evidence standard 5 1 substantial and probative evidence in the record. 2 U.S. Dep t of Justice, 480 F.3d 104, 116 (2d Cir. 2006). 3 Lin Zhong v. We accord particular deference in applying the 4 substantial evidence standard to an IJ s credibility 5 determination, but will remand if that determination is based on 6 flawed reasoning or a flawed fact-finding process. 7 U.S. Dep t of Homeland Security, 494 F.3d 281, 289 (2d Cir. 8 2007); Cao He Lin v. U.S. Dep t of Justice, 428 F.3d 391, 400 9 (2d Cir. 2005). 10 Manzur v. The IJ s adverse credibility determination is not supported 11 by substantial evidence because it relied on a flawed fact- 12 finding process, impermissible speculation, and flawed 13 reasoning. 14 credibility determination contained in his 2002 contemporaneous 15 oral decision relied solely on inconsistencies in her evidence; 16 Hu s demeanor was never mentioned. 17 between the July 9, 2002 testimony and the written decision of 18 July 6, 2006, Hu never again testified before Judge Hom. 19 only opportunities to observe Hu between July 2002 and July 2006 20 were at two conferences in May and June of 2006. 21 conference, the record indicates that the IJ was unsure whether 22 the petitioner was an adult or a child. 23 Of June 16, 2006 (Immigration Judge Hom: Now is the respondent Hu testified on July 9, 2002. 6 The IJ s adverse In the nearly four years His At the May 5 In re Su Chun Hu, Tr. 1 the little girl or the mother? ) 2 2006 conference does not show any statements by Hu. 3 The record of the June 16, Nevertheless, the IJ s written decision of July 6, 2006 4 contains detailed analyses of Hu s credibility based on her 5 demeanor during her testimony at the 2002 hearing. 6 in the record suggests that these analyses are based on anything 7 but the IJ s recollection of Hu s demeanor when she testified 8 nearly four years before. 9 IJ s assessment of demeanor because the IJ has the unique No evidence We afford particular deference to the 10 ability to observe the petitioner s demeanor while she 11 testifies. 12 Cir. 2006). 13 not entitled to the same deference. 14 See Tu Lin v. Gonzales, 446 F.3d 395, 400-01 (2d A four-year-old memory of the witness s demeanor is We are well aware that IJs must manage an onerous caseload. 15 According to Syracuse University s Transactional Records Access 16 Clearinghouse ( TRAC ), Immigration Judge Hom decided 1,377 17 asylum claims on the merits between 2004 and 2009. 18 report shows that fifty-two percent of those asylum-seekers were 19 from China. 20 Judge Sandy K. Hom, Fiscal Years 2004-2009, available at http:// 21 trac.syr.edu/immigration/reports/judgereports/00146NYC/ 22 index.html (last accessed July 7, 2009). 23 24 The TRAC TRAC Reports, Inc., Individual Judge Report for In the time between Hu s 2002 testimony and the IJ s 2006 decision, the IJ s memory of Hu s testimony may have been 7 1 affected by the many similarly-situated asylum-seekers who 2 testified before him. 3 on his four year old memory of Hu s facial expression when 4 evaluating her credibility four years later. Therefore, the IJ s 5 evaluation of Hu s demeanor cannot be substantial evidence 6 supporting his adverse credibility determination. 7 § 1252(b)(4)(B); Bah, 529 F.3d at 110. 8 9 A reasonable adjudicator would not rely Cf. 8 U.S.C. The IJ s opinion regarding Hu s testimony about her forced abortion is also based on impermissible speculation and is not 10 substantial evidence supporting his adverse credibility 11 determination. 12 At the outset, the IJ s finding regarding Hu s forced 13 abortion suffers from the same flaw identified above to the 14 extent that it relies on his memory of Hu s demeanor during her 15 July 2002 testimony. 16 demeanor was that of someone who had only experienced a routine 17 gynecological pap smear [...] rather than a life-altering 18 traumatic experience such as an abortion. 19 No. A 79 414 877 (Immmig. Ct. N.Y. City July 6, 2006.) 20 provided no basis for his assumptions about how someone who had 21 had a forced abortion would testify. 22 those unexplained assumptions is therefore impermissible 23 speculation. More troubling is his conclusion that Hu s In Re Su Chun Hu, The IJ His conclusion based on See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 8 1 (2d Cir. 2004) ( we will reverse where the adverse credibility 2 determination is based upon speculation ). 3 Two of the inconsistencies upon which the IJ relied in 4 reaching his adverse credibility determination are based on 5 flawed reasoning or misstatements of the record. 6 found that Hu was not consistent about the date on which her 7 mother-in-law was taken into custody. 8 December 23, 2005 Summary Order, Hu consistently testified that 9 her mother-in-law was taken into custody on September 22 or 23, First, the IJ As we noted in the Hu v. Gonzales, 160 Fed. App x at 101. Although she did, 10 2000. 11 at one point, say November 9, Year 2000 in response to the 12 question and when had you left the house? 13 testified that at that time I was hiding at my aunt s house in 14 Shanghai. 15 when did you leave your own house to go into hiding since it 16 would be illogical to answer that question with a date on which, 17 by her own testimony, she had already left her home and gone 18 into hiding. 19 decision, Hu never stated that her husband went into hiding on 20 November 9, 2000. Hu further It is clear that Hu was not answering the question Furthermore, contrary to the IJ s written Second, the IJ stated that Hu testified that she was 21 22 first fined when she went to register her daughter in August 23 2000. 24 when were you first notified about any kind of fine, Hu According to the July 9, 2002 transcript, when asked 9 1 responded after my daughter was born. She later stated first 2 fine was after my daughter was born but they did not notify us 3 with the fine. 4 When asked to explain the inconsistency, she said when I went 5 to register the household, they demanded for the fine. 6 testimony is generally consistent with Yu Ye s letter that 7 states that they were fined after their daughter s birth, but 8 did not pay the fine until after their daughter s registration 9 was rejected because the fine had not been paid. It was until register my daughter s household. This Since the 10 record indicates pervasive problems in translation, a reasonable 11 fact-finder could not conclude that Hu s credibility was 12 undermined solely by the minor inconsistencies remaining in her 13 testimony about whether her mother-in-law was taken as a hostage 14 on September 22 or 23 of 2000 or when she was notified about the 15 RMB 2,800 fine. 16 (2d Cir. 2007) (citing Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 17 2000)). 18 III. Conclusion 19 See Biao Yang v. Gonzales, 496 F.3d 268, 272 Immigration Judge Hom s adverse credibility determination 20 cannot stand because it is not supported by reasonable, 21 substantial, and probative evidence in the record. 22 480 F.3d at 116. 23 overwhelming that we could confidently predict that without the 24 errors we identified, the same result would be reached on Lin Zhong, The evidence in the record is also not so 10 See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 1 remand. 2 2008); Cao He Lin, 428 F.3d at 406. 3 that a reasonable fact finder would be compelled to find that Hu 4 has made the requisite showing for asylum, withholding of 5 removal, or relief under the CAT. 6 therefore GRANTED, the decision of the BIA is VACATED, and the 7 case is REMANDED for further proceedings consistent with this 8 opinion. 9 before a different IJ. However, we cannot conclude Hu s petition for review is We recommend that the BIA remand the case for hearing 11

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