Gui Cun Liu; Xiu Ding Liu v. John Ashcroft, ATTORNEY GENERAL OF UNITED STATES OF AMERICA

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No. 02-4334
____________
GUI CUN LIU; XIU DING LIU,
Petitioners
v.
John Ashcroft, ATTORNEY GENERAL
OF UNITED STATES OF AMERICA,
Respondent
____________________
ON PETITION FOR REVIEW OF AN
ORDER OF THE BOARD OF
IMMIGRATION APPEALS
(No. A73 168 631)
____________________
Argued: December 4, 2003
Before: SLOVITER and ALITO, Circuit
Judges, and OBERDORFER, District
Judge*
(Opinion Filed: June 24, 2004)
JOSEPH C. HOHENSTEIN (Argued)
Nationalities Service Center
1300 Spruce St.
Philadelphia, PA 19107
Counsel for Petitioner
ROBERT D. McCALLUM, JR.
TERRI J. SCADRON
ANTHONY W. NORWOOD (Argued)
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
Mr. Gui Cun Liu and Mrs. Xiu
Ding Liu (“the Lius”) petition for review
of an order of the Board of Immigration
Appeals (BIA) affirming the denial of their
application for asylum and withholding of
deportation. Specifically, the Lius allege
that the BIA erred in (1) affirming the
opinion of the Immigration Judge (IJ)
without opinion, in violation of their Due
Process rights, (2) improperly finding that
the Lius’ testimony was not credible, (3)
rejecting documentary evidence for failure
to comply with the authentication
procedures detailed in 8 C.F.R. § 287.6,
* The Honorable Louis F. Oberdorfer,
Senior District Judge for the District of
Columbia, sitting by designation.

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and (4) ignoring favorable new evidence
suggesting increased likelihood of
persecution in their home country.
We agree that the IJ’s improper
application of § 287.6 caused him to
disregard evidence that, if duly considered
in the first instance, might have resulted in
a favorable determination regarding
credibility for the Lius. Because the
adverse credibility finding was the crux of
the order denying relief, we will grant the
petition for review, vacate the order of the
BIA, and remand.
I.
The Lius, both citizens of the
People’s Republic of China, seek asylum
on the ground that they are unable to return
to their native country “because of
persecution or 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). In particular, the
Lius claim that Mrs. Liu was twice forced
by the Chinese government to undergo an
abortion,1 and that both face government
persecution on account of their Christian
faith.
The Lius presented to the IJ
documentary evidence supporting their
claims, including a pair of certificates
purportedly confirming that the two
abortions had in fact been performed in
China on the dates specified. See A.R.
272-73, 445-46. The Lius’ counsel
explained, upon submission of this
evidence, that it had proved impossible to
comply with the regulatory authentication
procedure set forth in § 287.6; he had
“attempted to comply with this procedure,
but [was] told by the Chinese officials at
the provincial level that no such
authentication was performed at that
level.” A.R. 268; see also A.R. 289 (letter
from U.S. Consulate in China to Lius’
counsel, explaining that no authentication
can be performed until documents have
been signed and notarized by a local
Chinese foreign affairs official). The IJ
nevertheless refused to accept this
explanation:
The regulations are specific,
Mr. Hohenstein. It says they
shall be certified. There’s
little or no weight that I can
give a document that’s in
violation of the regulations,
whether it be your client’s
inability to obtain proper
certification of a document
o r w h a t e v e r . T h e
r e g u l a t i o n s s a y t h e
documents shall be. There
is no wiggle room there.
So, what you’ll have to do
is, I’ll allow it to remain in
18 U.S.C. 1101(a)(42) provides: “[A]
person who has been forced to abort a
pregnancy . . . shall be deemed to have
been persecuted on account of political
opinion . . . .” See also In Re Matter of
C-Y-Z, 21 I. & N. Dec. 915, 918 (BIA
1997) (holding that past persecution of one
spouse can be established by coerced
abortion or sterilization of the other
spouse).

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evidence but there’s not
much weight or any weight
that I can give a noncertified
document.
A.R. 184-85.
After hearing and considering
testimony from both Mr. and Mrs. Liu, the
IJ rejected their claims for asylum and
withholding of deportation. In so
deciding, the IJ relied on findings of
several internal inconsistencies in the
testimonies which rendere d them
“incredible.” See A.R. 79 (noting
“contradictions between the respondents’
written applications and their testimony
before t h e C o u r t ” a s we ll as
“contradictions in the testimony given by
the respondents themselves”). In
particular, the IJ noted one “dramatic”
inconsistency (see A.R. 76) in Mrs. Liu’s
testimony regarding her second abortion,
as reproduced in part here:
Q. Do you know if the baby
was born alive or if it was
born dead?
A. They, the nurse told me
that it was a baby girl but
dead.
Q. What did the nurse tell
you again?
A. No, she told me it was a
boy and it’s, it’s dead.
JUDGE TO MRS. LIU
Q. Wait, why do you keep
changing your testimony.
You just told me the nurse
told you it was a baby girl
and it was dead, then you
say it was a baby boy and it
was dead.
A. No, I meant that the
nurse was a girl.
Q. Ma’am, just look this
way. You see the word
stupid written across my
forehead?
A. No.
Q. You think I’m going to
believe you when you
change your testimony like
that and give me such a half
baked reason for changing
the testimony?
A. No, I did not change.
A.R. 214-15; cf. A.R. 306 (affidavit of
Mrs. Liu, stating that second aborted fetus
was male). The IJ did not make reference
to the abortion certificates in analyzing this
or any other perceived inconsistency cited
in the final decision, although he did state
at the opening of his opinion that he had
considered “all of the documentation that
has been submitted thus far by both sides
in this matter.” A.R. 66.
On appeal to the BIA, a single
member of the BIA elected to affirm the
IJ’s decision without opinion, pursuant to
8 C.F.R. § 3.1(e)(4). This appeal

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followed.2
II.
We begin our analysis by evaluating
the IJ’s interpretation and application of
§ 287.6 in effectively excluding the
abortion certificates.3 We focus first on
this evidentiary issue because we believe it
follows from the IJ’s reliance on Mrs.
Liu’s testimony regarding the gender of
the fetus that the IJ was under the
impression that the second abortion had, in
fact, never occurred. In other words, if
Mrs. Liu’s confusion on this point is to be
understood as impugning her credibility, it
must be because the IJ took her confusion
as evidence that the inconsistently-
described fetus never actually existed.4 To
the extent that there exists competent
documentary evidence to the contrary (that
is, that the abortion was performed as
described by Mrs. Liu), the credibility
determination of the IJ must accordingly
be called into question.
The authentication regulation of 8
C.F.R. § 287.6 provides, in pertinent part:
In any proceeding under this
chapter, an official record or
e n t r y t h e r e i n , w h e n
admissible for any purpose,
shall be evidenced by an
official publication thereof,
or by a copy attested by an
officer so authorized. . . .
The attested copy, with the
a d d i t i o n a l f o r e i g n
certificates if any, must be
certified by an officer in the
Foreign Service of the
United States, stationed in
the foreign country where
the record is kept.
Id. (emphasis added). As noted earlier, the
IJ focused on the word “shall” in applying
the regulation, emphasizing that it left him
with “no wiggle room,” and that the
abortion certificates could hence be
2Because the BIA affirmed without
opinion, it is the reasoning and decision of
the IJ that we review on appeal. See Dia
v. Ashcroft, 353 F.3d 228, 243 (3d Cir.
2003) (en banc).
3We speak of “exclusion” even though
we recognize that the IJ technically
admitted the certificates into evidence.
See A.R. 185. While the IJ’s evidentiary
rulings are ambiguous as to whether he
intended to give the certificates “little
weight” or “no weight,” see id., the fact
that the IJ never referred to the certificates
in his final decision suggests that they
were not given any weight in making the
ultimate decision. That the opinion
contained boilerplate to the effect that “all
of the documentation” had been
considered seems to us irrelevant. See
A.R. 66. Of course, if a document is
admitted into evidence with the caveat that
it will be given “no weight,” that is
tantamount to an exclusion from evidence.
4For example, it makes little sense to
think that the IJ could have taken the
inconsistency regarding g ender as
evidence that Mrs. Liu did indeed have the
abortion, but did so voluntarily.

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accorded only little or no evidentiary
weight. A.R. 185.
Our precedent states that “[a]n
agency’s interpretation of its own
regulation is ‘controlling . . . unless it is
plainly erroneous or inconsistent with the
regulation.’” Abdulai v. Ashcroft, 239
F.3d 542, 552 (3d Cir 2001), quoting
Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945). At oral
argument, we specifically requested
further guidance from the government as
to its official interpretation of the
regulation. In its supplemental brief
submitted in response, the government
contended that “8 C.F.R. § 287.6 is not an
absolute rule of exclusion, and is not the
exclusive means of authenticating records
before an immigration judge.” Letter Brief
at 4. In so doing, it cited with approval
Khan v. INS, 237 F.3d 1143 (9th Cir.
2001), and Georgis v. Ashcroft, 328 F.3d
962 (7th Cir. 2003), which held that “[i]t
was error to exclude . . . official records
based solely on the lack of consular
certification.” Khan, 237 F.3d at 1144.5
While the government’s reading of
§ 287.6 may not be the most obvious one,
we cannot say that it is plainly erroneous
or inconsistent with the regulation.6
Moreover, we fully agree, as the
government states in its supplemental
brief, that “asylum applicants can not
always reasonably be expected to have an
authenticated document from an alleged
persecutor.” Letter Brief at 3; cf.
Senathirajah v. INS, 157 F.3d 210, 215-16
(3d Cir. 1998) (“It is obvious that one who
escapes persecution in his or her own land
will rarely be in a position to bring
documentary evidence or other kinds of
corroboration to support a subsequent
claim for asylum. . . . Common sense
establishes that it is escape and flight, not
litigation and corroboration, that is
foremost in the mind of an alien who
comes to these shores fleeing detention,
torture and persecution.”). We believe that
the Lius should have been allowed to
attempt to prove the authenticity of the
abortion certificates through other means,
especially where (as here) attempts to
abide by the requirements of § 287.6 failed
due to lack of cooperation from
government officials in the country of
alleged persecution.
The government contends that, in
any event, the improper application of
§ 287.6 was not prejudicial here since
there was evidence in the record indicating
that official documents from Fujian (such
as the abortion certificates here) are
commonly forged and thus are “virtually
useless” as cred ible corrobo rating
evidence. Letter Brief at 4; see A.R. 379
(State Department Country Report for
5At least one additional court of appeals
has recently adopted the holding in Kahn.
See Yongo v. INS, 355 F.3d 27, 31 (1st
Cir. 2004).
6Cf. Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 434 (1995) (“Though ‘shall’
generally means ‘must,’ legal writers
sometimes use, or misuse, ‘shall’ to mean
‘should,’ ‘will,’ or even ‘may.’”).

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China). However, the government’s
suggestion that the IJ relied (at least, in
part) on the Country Report in his rejection
of the abortion certificates is simply
inaccurate. It is perfectly clear that the IJ
based his decision on § 287.6 alone. See
A.R. 184-85; cf. A.R. 95-96 (rejecting
other evidence under § 287.6). We may
not affirm the exclusion of evidence on
grounds entirely different from those relied
upon by the agency. See SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947) (“[A]
reviewing court, in dealing with a
determination or judgment which an
administrative agency alone is authorized
to make, must judge the propriety of such
action solely by the grounds invoked by
the agency.”).
We conclude that 8 C.F.R. § 287.6
is not an absolute rule of exclusion, and is
not the exclusive means of authenticating
records before an immigration judge.
Accordingly, it was legal error for the IJ to
reject the abortion certificates on that
ground alone.
III.
Against the background of this
erroneous evidentiary ruling, we now
evaluate the IJ’s finding that the Lius were
not credible. Because the abortion
certificates, if found to be genuine, would
corroborate Mrs. Liu’s testimony that she
had two abortions performed on
her—whether or not she misspoke or got
confused (or lied) on the point of the
second fetus’s gender—we believe that
remand to the BIA to reconsider the
credibility issue is appropriate.
Specifically, we do not believe that
the other inconsistencies cited by the IJ,
even when viewed together as a whole,
amount to substantial evidence that the
Lius were not credible. For example:
• The IJ found a “diametrical
contradiction” in the fact
that Mr. Liu had listed only
one child in his original I-
589 application, but later
testified that he had two
children. A.R. 69. A
cursory examination of the
record reveals that, at the
time that the original I-589
was filled out (November
21, 1993), his second child
had not even been born yet.7
• The IJ found a discrepancy
in the fact that Mrs. Liu
testified that she was (1)
required to check in with the
authorities every three
months following her first
abortion and (2) required to
check in with the authorities
e v e r y t h r e e m o n t h s
f o l l o wing her s e c o nd
abortion. A.R. 78-79. Of
course, as a logical matter,
there is simply no conflict or
7In fact, the second child was added to
the form when it was later corrected by
Mr. Liu. Compare A.R. 398, 402 (original
I-589) with A.R. 393, 397 (amended I-
589).

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inconsistency between those
two statements.
• The IJ found that Mr. Liu
contradicted himself with
respect to the date and
location of his baptism.
A.R. 70. Mr. Liu repeatedly
testified that he had been
baptized in the United States
in 1996, see A.R. at 131,
137, which is consistent
with the documentary
evidence presented, see
A.R. at 313. It is true that
Mr. Liu once responded
with the date November 25,
1991, when asked when he
had been baptized. A.R.
130. This confusion almost
certainly resulted from the
apparent difficulty the
translator had in expressing
the concept of baptism. See
A.R. 131-32.8 Mr. Liu’s
subsequent answers made
clear that what he had been
referring to in connection
with that date was the day
on which he form ally
accepted Christianity (by
“kneel[ing] down an d
accept[ing] [his] sin”),
which occurred immediately
before leaving China in
November 1991. A.R. 131,
134; cf. A.R. 396. Mr. Liu
expressly distinguished this
confession of faith from the
actual baptism which was
performed later. A.R. 131.
There is no basis for a
finding of a discrepancy
here.
• Likewise, the finding of a
discrepancy where Mrs. Liu
alternately testified that she
was (1) four months and (2)
five months along with the
pregnancy at the time of the
second abortion is trivial,
and does little or nothing to
contribute to substantial
evidence of falsehood on the
part of the Lius. A.R. 78;
see Gao v. Ashcroft, 299
F.3d 266, 272 (3d Cir. 2002)
(minor inconsistencies not a
proper foundation for
a d v e r s e c r e d i b i l i t y
determination).
• The IJ relied heavily upon
M r . L i u ’ s s ta t e m e n t
originally filed with his
signed I-589 form (and later
retracted by him), in which
it was claimed that he had
been jailed and fined for
failure to comply with the
8It is evident that translation difficulties
seriously plagued the entire hearing. See,
e.g., A.R. 103-104 (inconsistent testimony
due to confusion regarding translation of
“Catholic” and “Baptist”); A.R. 67-69
(repeated questions yielding absurdly
nonresponsive answers).

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one-child policy. A.R. 71-
72. The IJ noted that, under
8 C.F.R. § 208.3, Mr. Liu’s
signature on the form gave
rise to a presumption that he
was aware of the contents of
that application. But the IJ
did not explain why this
presumption had not been
successfully rebutted by
o t h e r e v i d e n c e (m o s t
notably, the fact that the
form is filled out in English,
which Mr. Liu does not
speak, without listing the
name of a third-party
preparer, as well as M r.
Liu’s testimony regarding
the explanation of the
statement before the asylum
officer: “I said I didn’t
know what it is”). A.R. at
162.
The other inconsistencies cited by
the IJ as evidence of incredibility are
similarly ill-foun ded, tr ivial , or
nonexistent. Absent the one glaring
inconsistency regarding the baby’s gender
(which may or may not be rendered less
relevant in light of the consideration of
documentary evidence on remand), we do
not think that substantial evidence supports
the finding that the Lius were not credible.
Finally, we note that remand is
appropriate where, as here, we have made
a legal determination (e.g., regarding
a d m i s s i b i l i t y o f e v i d e n ce ) t h at
fundamentally upsets the balancing of
facts and evidence upon which an agency’s
decision is based. We are obliged to
remand to the agency to reconsider and
reweigh the facts, rather than attempting to
undertake that task ourselves. INS v.
Ventura, 537 U.S. 12 (2002).9
IV.
We grant the Lius’ petition for
review, vacate the order of the BIA, and
remand to the BIA for further proceedings
consistent with this opinion.10
9Specifically, our decision should in no
way be read as requiring the BIA to find
that the abortion certificates are genuine.
Rather, the BIA may proceed on remand as
it does with respect to any evidentiary
question, evaluating issues of materiality,
relevance, probity, and the general
requirements of due process. See 8 C.F.R.
§ 1240.7(a); Bustos-Torres v. INS, 898
F.2d 1053, 1055 (5th Cir. 1990). For
example, the BIA may (or may not) choose
to order forensic testing of the original
certificates (as proposed by the Lius), take
additional testimony, seek guidance from
State Department reports, or evaluate the
efforts the Lius took in attempting to avail
themselves of the regulatory certification
procedure.
10Our disposition of this case renders
unnecessary any inquiry into the other two
arguments raised by the Lius on appeal.
However, we note that the due process
attack on the affirmance without opinion
procedures has essentially been foreclosed
by our en banc decision in Dia v. Ashcroft,
353 F.3d 228 (3d Cir. 2003). We also
note, with respect to the claim that the BIA

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failed to consider new evidence regarding
“changed circumstances” in China, that
while generally the “only vehicle for
introducing new evidence post-decision is
a motion to reopen,” Walters v. Ashcroft,
2003 U.S. Dist. LEXIS 19715 (S.D.N.Y.
November 3, 2003), the BIA may choose
to consider this evidence on remand, if it
deems such action appropriate.

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