Guang Ri Li v. Attorney General of the United States

*The Honorable Alan D. Lourie, United States Circuit Judge for the Federal
Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-1668
____________
GUANG RI LI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A73 592 100)
Immigration Judge Donald Vincent Ferlise
____________
Argued June 13, 2006
Before: FISHER, GREENBERG and LOURIE,* Circuit Judges.
(Filed: June 30, 2006)
Thomas V. Massucci (Argued)
401 Broadway, Suite 404
New York, NY 10013
Attorney for Petitioner

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Daniel S. Goodman (Argued)
United States Department of Justice
Appellate Section
950 Pennsylvania Avenue, N.W., Room 1264
Washington, DC 20530
Douglas E. Ginsburg
John M. McAdams, Jr.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Mary Ann Snow
United States Department of Justice
Office of International Affairs
1301 New York Avenue, N.W., Suite 800
Washington, DC 20005
Attorneys for Respondent
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Guang Ri Li sought asylum in this country on the grounds that he and his wife had
been forcibly sterilized in their native China. The immigration judge, in a decision
adopted by the Board of Immigration Appeals, refused to credit these allegations because
of perceived inconsistencies between Li’s testimony at the hearing and his statements in
prior proceedings. Li now petitions for review by this Court, arguing that the
immigration judge misconstrued the record and ignored critical evidence supporting his
claim. We agree and will grant the petition.

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I.
Removal proceedings were commenced against Li in 1996, after he entered the
United States with an invalid passport. Li conceded deportability but filed an application
for asylum claiming persecution based on religion and political opinion.
A hearing on the application was held in July 1996. Li was the sole witness. He
testified that he, his wife, and their two children had been persecuted in China based on
their Christian faith. He could, however, recall only one actual incident of intimidation:
In 1985, he had been arrested and detained for ten days for allowing a priest to deliver a
sermon in the family home.
Li also testified that his family had been persecuted based on their opposition to
the one-child policy of the Chinese government. He recalled that, after the birth of their
first child, authorities “requested” that his wife undergo sterilization and insertion of an
intrauterine device (“IUD”). He and his wife went into hiding but, after the birth of their
second child, his wife was abducted by Chinese officials and sterilized, in September
1989.
Both counsel for the government and the immigration judge questioned Li whether
he had himself been sterilized. Li’s responses were vague. When the judge asked Li if he
or his wife had undergone sterilization, Li replied: “My wife was sterilized.” When
counsel for the government asked Li directly if he had been sterilized, Li replied:
“Because the man in the family usually has to work . . . [w]hen we didn’t have any choice
then she underwent the procedure.”

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The immigration judge denied the application for asylum. Focusing primarily on
the claim of religious intimidation, the judge found that the ten-day period of detention
that Li had allegedly suffered for assisting the priest did not give rise to a well-founded
fear of persecution.
Li, acting pro se, appealed. He recounted, in an addendum to the appeal, the facts
supporting his claim of persecution based on opposition to the one-child policy. The
addendum asserts that Li’s wife had been required to undergo an IUD insertion after her
first pregnancy and had been threatened with sterilization after her second pregnancy.
The addendum does not state expressly that Li’s wife was actually sterilized, but it does
indicate that she “got a pain in [her] waist because of the sterilization,” implying that the
procedure was performed.
In the addendum Li also revealed, for the first time, that he had been sterilized. He
stated that, shortly after his wife’s detention, Chinese officials arrested and transported
him to a hospital where the procedure was performed. He did not disclose this fact
previously, he explained, because “it was humiliating” and “[he] was ashamed.”
The Board agreed that Li had failed to establish persecution based on religious
belief, but held that the immigration judge had failed to give adequate consideration to
Li’s claim of persecution based on opposition to the one-child policy. It noted that, under
the Immigration and Naturalization Act (“INA”), an alien is deemed to have suffered
“persecution” – establishing eligibility for asylum – if he or his spouse has suffered
forcible sterilization. Although Li’s failure to mention his own sterilization during the

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first hearing cast doubt on his credibility, the Board concluded that he could still
demonstrate eligibility for asylum by substantiating his allegations through “medical
documentation.”
The Board identified another discrepancy between the allegations in the addendum
and Li’s prior testimony. Specifically, it remarked that, while Li had previously “claimed
that his wife was forcibly sterilized,” he “presently appears to allege that his wife was not
sterilized.”
Following remand, a second hearing on the asylum application was held in
September 2001. At the start of the hearing, counsel for Li introduced a letter from Bruce
B. Sloan, M.D., a urologist. The letter, dated August 2001, indicates that Dr. Sloan had
examined Li and had determined that Li had, “without question, undergone bilateral
vasectomy.” The government objected to the letter, noting that Dr. Sloan had not been
called to testify. The immigration judge overruled the objection and admitted the
document, stating that he would give it “whatever weight [the court] deem[s] advisable.”
He remarked, however, that he could not be sure from the letter alone whether Dr. Sloan
had actually examined Li, whether Li had undergone the vasectomy voluntarily, or when
the vasectomy had been performed.
Li was, once again, the only witness. He testified that he had been married in 1987
– contrary to his testimony in the first hearing that he had been married in 1981 – and that
his wife and children remain in China. Counsel for the government asked Li to explain
why a marriage certificate, introduced earlier in the hearing, indicated that his marriage

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had been registered in April 1990. Li explained that he had not registered his marriage
immediately, but had waited until Chinese authorities required him to do so, in 1990.
Li recounted the allegations underlying his claim of forcible sterilization. He
testified that, after his wife became pregnant for a second time, officials attempted to
force her to have an abortion, but the family fled to another province. When they
returned to their home in October 1989, after the child’s birth, family planning officers
confronted them and “dragged” Li’s wife to a hospital for sterilization. She pleaded with
hospital officials that she had a heart condition and could not endure the procedure.
Doctors initially agreed; however, after cadres were unable to apprehend Li for
sterilization, they directed that his wife be sterilized regardless of the risk to her health.
The operation was performed three days after Li’s wife had initially been detained.
Notwithstanding the sterilization of his wife, cadres continued to pursue Li. He
explained that they intended to “punish” him for refusing to obey the prior sterilization
order. Li was subsequently captured and forcibly sterilized. He could not remember the
exact date of the procedure, but said that it was “sometime early in October.”
Li conceded that he had not mentioned his own sterilization during the previous
hearing, but offered two reasons for this omission. First, Li said that his original counsel
had advised him that, “to make things easier” and avoid “a lot of questions,” he should
mention only his wife’s sterilization. Second, Li indicated that he did not “like to have
people to know” about the sterilization because it is not “such a glorious thing[].”

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1It is not clear why the immigration judge considered the criminal clearance report
in his opinion. He had previously ruled, at the start of the second hearing, that the report
had not been properly authenticated and “cannot be considered by the [c]ourt.”
7
The immigration judge rejected Li’s testimony, concluding that Li had
“intentionally attempted to deceive this [c]ourt” and denying the application for asylum as
“frivolous.” The judge found that Li had lied in the first hearing, during which he had
stated that he had not been sterilized, and that he had changed the basis of his claim in the
prior appeal, during which he had asserted that his wife had not been sterilized. The
judge also identified several “gross disparities” between Li’s most recent testimony and
his prior statements: Li had testified that he was married in 1987, but he had stated at the
first hearing that he was married in 1981; Li had testified that he was arrested by Chinese
officials, but neither the asylum application nor a criminal clearance report from China1
reflects any arrests; Li had testified that he was a Christian, but his asylum application
indicates that a question regarding religious affiliation is “not applicable”; Li had testified
that his wife was sterilized in October 1989, but he had stated at the first hearing that she
was sterilized in September 1989. The immigration judge also noted that Li could not
remember the exact date on which he had been sterilized: “It seems implausible . . . that
[he] would not recall with more precision when such a traumatic event occurred in his
life.” The judge did not mention Dr. Sloan’s letter.
The Board affirmed. It adopted the decision of the immigration judge in full
except for the finding that Li’s application was “frivolous.”

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2Because neither party challenges this proposition, which was adopted by the
Board in In re Y-T-L-, 23 I. & N. Dec. 601 (BIA 2003), and In re C-Y-Z-, 21 I. & N. Dec.
915 (BIA 1997), we will assume, as we have done in other opinions, see, e.g., Chen v.
Ashcroft, 381 F.3d 221, 227 (3d Cir. 2004), that it represents a permissible interpretation
of the INA. See also, e.g., Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 155-56 (2d Cir.
2005) (approving of holding in Y-T-L- that proof of an alien’s forcible sterilization gives
rise to an “irrebutable presumption” of a well-founded fear of future persecution); Lin v.
U.S. Dep’t of Justice, 416 F.3d 184, 191-92 (2d Cir. 2005) (questioning but not rejecting
holding in C-Y-Z- that proof of a spouse’s forcible sterilization can support an alien’s
claim of persecution).
8
This timely petition for review followed. Li argues that the adverse credibility
determination is not supported by substantial evidence and that the immigration judge and
the Board “ignored” evidence that he had been sterilized. We have jurisdiction over the
petition under 8 U.S.C. § 1252.
II.
The dispositive question in this case is whether the immigration judge erred in
discounting Li’s testimony that he and his wife had been forcibly sterilized by Chinese
authorities. An alien who has suffered forcible sterilization, or whose spouse has suffered
forcible sterilization, is deemed to have a well-founded fear of persecution and to be per
se eligible for asylum.2 See In re Y-T-L-, 23 I. & N. Dec. 601, 605-08 (BIA 2003); In re
C-Y-Z-, 21 I. & N. Dec. 915, 918-19 (BIA 1997). Because Li no longer claims eligibility
for asylum based on religious persecution, the finding that he fabricated his testimony
regarding his and his wife’s sterilization effectively quashed his chance for relief from
removal.

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The immigration judge based his conclusion on perceived discrepancies between
Li’s testimony and prior statements. Many of these, however, do not bear up under a
close review of the record.
The immigration judge found that Li had lied to the court during the first hearing
by stating that he had not suffered sterilization. But the record of the first hearing shows
that Li never expressly denied that he had undergone the procedure. Li was asked
whether he or his wife had suffered sterilization; Li replied: “My wife was sterilized.”
This response, although omitting Li’s own sterilization, was not untruthful. At another
point, Li was asked directly whether he had himself been sterilized; Li replied: “Because
the man in the family usually has to work . . . [w]hen we didn’t have any choice then she
underwent the procedure.” This statement is simply unresponsive. It indicates that Li’s
wife had been sterilized and obliquely suggests that men are usually not sterilized because
they “ha[ve] to work,” but it does not state whether or not Li himself was sterilized.
Nothing in Li’s testimony or his other submissions expressly denies that he
underwent sterilization. Rather, they merely fail to acknowledge the fact. Li was
evasive, but he did not lie to the court.
The immigration judge also found that Li had alleged in his prior appeal, contrary
to his testimony, that his wife had not been sterilized. Once again, this finding is
inaccurate. The addendum to the appeal asserts that Li’s wife was threatened with
sterilization after her second pregnancy but that officials initially declined to perform the
procedure due to her heart condition. Although the addendum does not state expressly

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that Li’s wife was sterilized, it does indicate that she “got a pain in [her] waist because of
the sterilization.” This necessarily implies that she underwent the procedure.
There is no discrepancy between the addendum and Li’s testimony. In both, Li
asserted, either explicitly or implicitly, that his wife had undergone forcible sterilization
by Chinese officials following the birth of their second child. The immigration judge and
the Board erred in finding otherwise.
Other inconsistencies identified by the immigration judge likewise do not provide
a sufficient basis for discounting Li’s testimony. Li’s differing responses for the date of
his marriage are troubling, but they do not cast serious doubt on his allegations of forcible
sterilization, particularly since there is apparently no dispute that Li was in fact married.
See, e.g., Senathirajah v. INS, 157 F.3d 210, 221 (3d Cir. 1998) (“Minor inconsistencies
in the record such as discrepancies in dates which reveal nothing about an asylum
applicant’s fear for his safety are not an adequate basis for an adverse credibility
finding.”) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir. 1988)). Li’s
inability to remember the precise date of his sterilization is hardly surprising, given that
more than a decade had elapsed since the procedure. And the one-month discrepancy
between the dates offered by Li for his wife’s sterilization is so minor as to be irrelevant.
See Senathirajah, 157 F.3d at 221; cf. Cham v. Attorney General, 445 F.3d 683, 691 (3d
Cir. 2006) (criticizing the same immigration judge for focusing on a “one-month mistake
about an event which occurred years earlier”). Neither these perceived inconsistencies,
nor others identified by the immigration judge, supports the adverse credibility

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3For example, while the immigration judge found fault in the fact that Li’s alleged
arrests were not mentioned in his application for asylum or the criminal clearance report,
the judge failed to consider Li’s plausible explanations for these omissions. See Caushi v.
Attorney General, 436 F.3d 220, 226 (3d Cir. 2006) (stating that the immigration judge is
required “to consider an alien’s explanations for any perceived inconsistencies in his
testimony before deciding upon the alien’s credibility”) (citing Campos-Sanchez v. INS,
164 F.3d 448, 450 (9th Cir. 1999)); see also supra note 1 (noting that the immigration
judge had previously ruled the document inadmissible). And, the notation in the asylum
application suggesting that a question regarding religious affiliation is “not applicable” –
upon which the immigration judge seized as further proof of duplicity – is clearly a
typographical error, as other statements in the application plainly describe Li as a
Christian.
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determination.3 See, e.g., Senathirajah, 157 F.3d at 221; see also Berishaj v. Ashcroft,
378 F.3d 314, 323-25 (3d Cir. 2004).
Casting further doubt on the agency’s decision is its failure to address critical
evidence bolstering Li’s account. The immigration judge admitted into the record, over
the government’s objection, the letter authored by Dr. Sloan stating that Li had, “without
question,” undergone a vasectomy. Although the letter does not indicate when or how the
procedure took place, it clearly supports Li’s claim of sterilization.
Yet, the letter was not mentioned by the immigration judge or the Board in their
opinions. The only point at which it was discussed was during the immigration hearing,
when the immigration judge admitted the document and noted that he could not be sure
from it alone whether Li had undergone the vasectomy voluntarily or when the vasectomy
had been performed. But these questions were never resolved, or even raised, in the later
opinions. It is not possible for us to determine whether and for what reason the
immigration judge and the Board discounted the letter.

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4Counsel for Li frames the immigration judge’s failure to address the letter as a due
process violation. We need not resolve this constitutional question, see, e.g., Cham, 445
F.3d at 693, in light of our decision to remand the case on statutory grounds.
5This is not to say that the immigration judge was required to find Li credible or to
grant him asylum. That Li failed to mention his own sterilization during the first hearing
– even if he did not actually lie – calls his credibility into question. See, e.g., Xie v.
Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004). Likewise, several of the inconsistencies
between Li’s testimony and his prior statements could ostensibly serve as a basis for an
adverse credibility determination. And the immigration judge might decide that,
assuming Li had a vasectomy, the procedure was most likely performed voluntarily or
after Li had left China.
But these possibilities are, at this point, mere speculation. The credibility of
witnesses and conflicts in the evidence are matters to be resolved in the first instance by
the immigration judge and the Board. Cao v. Attorney General, 407 F.3d 146, 161 n.4
(3d Cir. 2005) (citing INS v. Ventura, 537 U.S. 12, 16-17 (2002)); Zhang v. Gonzales, 405
F.3d 150, 156-57 (3d Cir. 2005); see also Butt v. Gonzales, 429 F.3d 430, 437-38 (3d Cir.
2005) (stating that, if the record is insufficient to support an adverse credibility
determination, the Court should remand the case to allow the agency “an opportunity to
revisit the credibility issue . . . without regard to the prior adverse credibility
determination”).
12
This flaw requires remand. 4 The immigration judge found that Li had fabricated
his claim of sterilization; however, the letter demonstrates that Li did in fact have a
vasectomy. Cf. Toure v. Attorney General, 443 F.3d 310, 326 (3d Cir. 2006) (stating that,
when the immigration judge does not state that testimony is discredited, we assume that it
was credited). The immigration judge’s failure to reconcile the letter with his arguably
contrary finding warrants remand of the case.5 See Caushi v. Attorney General, 436 F.3d
220, 226 (3d Cir. 2006); Voci v. Gonzales, 409 F.3d 607, 613-14 (3d Cir. 2005); Awolesi
v. Ashcroft, 341 F.3d 227, 229 (3d Cir. 2003); Kayembe v. Ashcroft, 334 F.3d 231, 238-39
(3d Cir. 2003); see also Korytnyuk v. Ashcroft, 396 F.3d 272, 291-92 (3d Cir. 2005).
III.

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The immigration judge and the Board, in denying the application for asylum in this
case, relied on questionable discrepancies in the record and ignored critical evidence
supporting the claim of forcible sterilization. Remand is necessary to allow the agency to
reconsider the record and provide a full explanation of its findings.
For these reasons, the petition for review will be granted and this case will be
remanded to the Board for further proceedings consistent with this opinion.

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