08-2998-ag

08-2998-ag
Su Chun Hu v. Eric H. Holder, Jr., United States Attorney
General
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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
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Su Chun Hu,
Petitioner, 16
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-v.-
Eric H. Holder, Jr.,* United States Attorney General,
Respondent. 20
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Before: B. D. PARKER and WESLEY, Circuit Judges, and
CEDARBAUM,
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District Judge.**
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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.

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