Wen Xin Chen v. Gonzales
Opinion of the Court
SUMMARY ORDER
Wen Xin Chen, a citizen of the People’s Republic of China, petitions for review of the December 9, 2004 per curiam order of the BIA adopting, affirming and supplementing the October 28, 2003 decision of Immigration Judge (“IJ”) Miriam K. Mills denying his application for asylum and withholding of removal, as well as his claim under the Convention Against Torture (“CAT”).
Where, as here, the BIA adopts the decision of the IJ and supplements it, this Court reviews the decision of the IJ as supplemented by the BIA. See Heui Soo Kim v. Gonzales, 458 F.3d 40, 44 (2d Cir. 2006). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir. 2004). This Court generally grants “particular deference” to the credibility findings of the IJ. Montero v. INS, 124 F.3d 381, 386 (2d Cir. 1997). However, “[t]he fact that an IJ or the BIA relied solely on an adverse credibility finding in dismissing an application does not insulate the decision from review.” Zhi Wei Pang v. Bureau of Citizenship and Immigration Sens., 448 F.3d 102, 107 (2d Cir. 2006). Rather, this Court requires that the IJ’s reasons for an adverse credibility finding be “specific” and “cogent,” with a legitimate nexus to the finding. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003) (internal quotation marks omitted). In this case, none of the IJ’s three findings is supported by specific or cogent evidence in the record.
Second, the IJ based her observation that Chen was “not credible because he failed to lay a reliable or proper foundation for any of his identity documents” on impermissible speculation regarding document-issuance practices in China. The IJ found it “implausible that authorities would issue respondent a household registration booklet through his father even[ ] when [Chen] was wanted by authorities ... for violating the birth control policy.” The record contains no information regarding China’s document practices insofar as they relate to that finding. Therefore a finding that Chen was “not credible” based on speculation about the process for acquiring household registration documentation in China is impermissible.
Third, to the extent that the other bases for the IJ’s adverse credibility finding lack support in the record, the IJ impermissibly equated a lack of corroborative evidence with a lack of credibility. A lack of corroborative evidence alone does not necessarily undermine a petitioner’s credibility. See 8 C.F.R. § 1208.13(a) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”); Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000) (“[C]orroboration cannot be the only factor taken into account because this would effectively require corroboration in all cases, contrary to explicit provisions in the law....”). We note further that the IJ drew impermissibly speculative inferences about the nonexistence of a relationship between Chen and his wife from his failure to provide original identity documents or authenticate the non-original documents he did possess. Moreover, the IJ failed to clarify what Chen should have done to authenticate his non-original documents. Cao He Lin, 428 F.3d at 404-05.
We remand for further proceedings not inconsistent with this order because we cannot predict with confidence that the agency would reach the same result on remand based on an error-free credibility finding. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir. 2006).
As to the fraud charge brought under INA section 212(a)(6)(C)(i), we requested supplemental briefing on four related questions in an order dated April 20, 2006. The Government subsequently withdrew the fraud charge, thus obviating the necessity for this Court’s consideration of the questions posed for supplemental briefing. We note, however, that on remand, the BIA should amend its order to reflect the withdrawal of the fraud charge and ensure that no holding with respect to that charge remains on the record.
For the foregoing reasons, the petition for review is GRANTED, the BIA’s order is VACATED, and the case is REMANDED for further proceedings consistent with this decision.
. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.
Reference
- Full Case Name
- Wen Xin CHEN v. Alberto R. GONZALES, Attorney General of the United States
- Status
- Published