Lai v. Holder
773 F.3d 966
| 9th Cir. | 2014Background
- Lai, a Chinese national and Christian, applied for asylum, withholding of removal, and CAT protection after leaving China in 2005, alleging past detention, beatings, police harassment, and ongoing risk due to his religion.
- His initial written statement described detention in July 2005, beatings, interrogation, forced reporting to police, and police visits to his home; he left China in November 2005 and later filed for relief in the U.S.
- At his 2008 IJ hearing, Lai’s direct testimony largely matched his written statement, but during cross-examination he disclosed additional facts not previously stated: a fellow congregant’s six-month detention, his wife’s recent arrest and weekly police visits, and that other church members were persecuted after his departure.
- The IJ found Lai not credible, relying on (1) omissions/‘‘significant inconsistencies’’ between written statement and testimony, (2) Lai’s apparent ease in leaving China, and (3) lack of corroboration (notably from his wife); the BIA affirmed.
- The Ninth Circuit reviewed for substantial evidence and considered the IJ’s oral decision as explanatory of the BIA’s conclusions; the panel concluded the adverse credibility determination was not supported and remanded.
Issues
| Issue | Lai's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether omissions of events first revealed on cross-examination (wife’s arrest; Yan Li’s detention; others persecuted after Lai left) supported an adverse credibility finding | Omissions were either learned after he left, concerned third parties, or were recent developments he did not understand he had to include; he offered plausible explanations | Late disclosures suggested a last-minute, scripted attempt to bolster his claim; omissions undermined credibility | Court held omissions did not support adverse credibility: they were non-contradictory, often concerned third parties or recent events, and Lai gave plausible explanations; BIA’s reliance was not supported by substantial evidence |
| Whether lack of corroboration (wife’s corroboration of arrest) could sustain adverse credibility | Corroboration was unnecessary because Lai did not rely on his wife’s circumstances for his claim, and he learned of the arrest days before the hearing, making production impossible | Lack of corroboration justified skepticism about Lai’s testimony | Court held lack of corroboration did not support the adverse credibility finding; IJ failed to give notice/opportunity to produce or explain corroboration, so it was improper to rely on it |
| Whether country-exit evidence (ease of leaving China) and perceived minimal religiosity supported disbelief | Lai argued country-report cannot discredit specific individualized testimony and missing occasional church attendance does not show insincerity | Country conditions and his travel history undermined his claim and suggested convenience of religion | Court held those points, as applied, were insufficient to sustain the adverse credibility finding |
| Remedy: standard and scope of review; whether to accept testimony as true or remand | Lai urged remand with testimony accepted as true given credibility failings | Government urged deference to IJ/BIA credibility findings and denial of relief | Court found BIA’s adverse credibility determination unsupported by substantial evidence, accepted Lai’s testimony as true for purposes of the remand, and remanded all claims to the BIA for further proceedings |
Key Cases Cited
- Garcia v. Holder, 749 F.3d 785 (9th Cir. 2014) (standard: review of factual findings and adverse credibility is for substantial evidence)
- Tekle v. Mukasey, 533 F.3d 1044 (9th Cir. 2008) (look to IJ’s oral decision when BIA adopts and supplements IJ reasoning)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (REAL ID Act requires totality-of-circumstances credibility analysis but does not immunize findings from review)
- Zhi v. Holder, 751 F.3d 1088 (9th Cir. 2014) (IJ must give notice and opportunity to produce corroboration or explain unavailability before relying on lack of corroboration)
- Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011) (notice-and-opportunity requirement regarding corroboration tied to §1158(b)(1)(B)(ii))
- Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. 2003) (adding critical facts at the last moment can support adverse credibility where details are dramatic and implausibly omitted earlier)
- Singh v. Gonzales, 403 F.3d 1081 (9th Cir. 2005) (mere omission of details is generally insufficient to support adverse credibility)