Guan v. Ashcroft

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 27, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60143
Summary Calendar
CAIXIA GUAN,
Petitioner,
versus
JOHN ASHCROFT, U.S.
ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 534 250
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Caixia Guan, a native and citizen of the People’s Republic
of China, petitions the court for review of the Board of
Immigration’s (BIA) decision affirming the Immigration Judge’s
(IJ) final order of removal and denying Guan’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (CAT).

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No. 04-60143
-2-
Guan has failed to brief the IJ’s determination that she is
ineligible for asylum, thus that claim is abandoned. See
Rodriguez v. INS, 9 F.3d 408, 414 n.15 (5th Cir. 1993).
Guan argues that the IJ abused his discretion my making
findings that were not supported by substantial evidence in the
record. She contends that the IJ’s credibility findings were
arbitrary and that the IJ drew negative inferences that were not
supported by the record.
[A] credibility determination may not be overturned unless
the record compels it.” Lopez De Jesus v. INS, 312 F.3d 155, 161
(5th Cir. 2002); 8 U.S.C. § 1252(b)(4)(B). However, adverse
credibility findings must be “supported by specific cogent
reasons.” Gao v. Ashcroft, 299 F.3d 266, 276 (3d Cir. 2002).
The court “will not automatically yield to the IJ’s conclusions
when they are drawn from insufficient or incomplete evidence.”
Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir. 2004).
Virtually all of the credibility findings and factual
conclusions of the IJ are not supported by the substantial
evidence in the record. The findings reflect that the IJ did not
closely read Guan’s written statement and that he did not
consider the information in the country reports. Although Guan
addressed details of her physical mistreatment in her testimony
that were not contained in her written statement, her testimony
was not inconsistent with the statement. The IJ engaged in
unsupported speculation in reaching several of his conclusions.

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No. 04-60143
-3-
Because the majority of the IJ’s findings were not supported
by substantial evidence in the record, his conclusions regarding
the existence of Guan’s past persecution and the possibility of
her future persecution or torture if she is returned to China
cannot be affirmed. See Gao, 299 F.3d at 279; Lin, 385 F.3d at
756-57. The IJ should reconsider the credibility of Guan’s
testimony and written statement and the submitted country
reports. The petition for review is GRANTED, and the case is
REMANDED to the BIA, with leave to further remand to the IJ for a
redetermination of Guan’s claims for withholding of removal and
withholding under CAT.
PETITION FOR REVIEW GRANTED; CASE REMANDED TO THE BIA FOR
FURTHER CONSIDERATION.

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