Lizhi Qiu v. Barr, No. 17-71338 (9th Cir. 2019)
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The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of asylum and related relief. The panel held that an asylum officer's credibility conclusion could not support an adverse credibility finding. In this case, the agency legally erred by relying on the asylum officer's assessment of petitioner's credibility.
The panel also held that, where, as here, petitioner's testimony was consistent with, but more detailed than, her asylum application, petitioner's testimony is not per se lacking in credibility. Therefore, the finding that petitioner was less credible merely because her statement did not note the specific date the abortion occurred or the names of the family planning director and hospital staff was unreasonable. The panel also held that petitioner's testimony about the asylum interview did not support the adverse credibility finding; the IJ's speculation that petitioner was in fact still living in Indiana was not a sufficient basis for an adverse credibility finding; the BIA impermissibly engaged in factfinding; and petitioner was entitled to notice and an opportunity to produce corroborating evidence or explain why it was unavailable.
Court Description: Immigration. The panel granted a petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum and related relief, and remanded, holding that substantial evidence did not support the IJ’s adverse credibility determination. The panel held that in making the adverse credibility determination, the IJ erred by relying, in part, on an asylum officer’s assessment of petitioner’s credibility. Noting that an asylum officer’s Assessment to Refer merely sets in motion a merits hearing at which an IJ takes evidence and makes independent findings concerning that evidence, the panel held that an IJ may not rely on an asylum officer’s subjective conclusions about a petitioner’s demeanor or veracity at an earlier interview. The panel also noted that the asylum officer’s suspicion that petitioner was feigning illness at her asylum interview was pure speculation, which cannot support an adverse credibility finding in any event. The panel held that the IJ erred by relying on omissions in detail from petitioner’s asylum statement to conclude that she was not credible. The panel explained that where, as here, a petitioner’s testimony was consistent with, but more detailed than, her asylum application, the petitioner’s testimony is not “per se” lacking in credibility. The panel concluded that it was not reasonable for the IJ to find QIU V. BARR 3 petitioner less credible merely because her statement did not identify the specific date of her forced abortion or the names of the family planning director and hospital staff who were involved. The panel held that the record did not support the IJ’s finding that petitioner testified inconsistently about why she did not participate more fully in her asylum interview, and whether she requested that her case be forwarded to immigration court, and that even if there were any discrepancies, petitioner provided a reasonable and plausible explanation for such discrepancies, which in any event were too trivial to support an adverse credibility determination. The panel held that the IJ erred by relying on impermissible speculation in concluding that petitioner lied about her residence being in California so that she could apply through the “backlogged” immigration court in Los Angeles and delay her application. The panel also held that the IJ should have given petitioner notice and an opportunity to explain any discrepancies concerning her state of residence. The panel held that the Board impermissibly engaged in factfinding when it found that the Proof of Diagnosis petitioner submitted to establish her forced abortion was similar to abortion certificates other courts of appeals have found actually undermined a claim of forced abortion. The panel pointed out that the IJ did not comment on that aspect of petitioner’s evidence, but instead concluded that petitioner’s corroborating evidence was insufficient because it was not authenticated or notarized. 4 QIU V. BARR Because the IJ’s grounds for finding petitioner not credible were not supported by substantial evidence, the panel held that the IJ should have given petitioner notice and an opportunity to present additional corroborating evidence, including her husband’s testimony, and authentication for the Proof of Diagnosis certificate. The panel concluded that the IJ therefore erred in relying on the lack of corroboration to support the adverse credibility determination.
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