Li (not precedential): IJ's Credibility Determination Included "Troubling" Points and Apparent Predisposition

In Li v. Gonzales, No. 05-5269 (3d Cir. June 28, 2007) (not precedential), the Third Circuit overturned the decision of Immigration Judge Eugene Pugliese and the BIA in the case of someone seeking asylum from China.

The BIA said it would assume the asylum-seeker was credible. IJ Pugliese had found the asylum-seeker not credible. The Third Circuit criticized IJ Pugliese's analysis as including points that were "troubling" and an "apparent predisposition to find against" the asylum-seeker's credibility. Examples include:

• The failure to testify about being fired from a job because of practicing Falun Gong is not an inconsistency that goes to the heart of the asylum claim when there is no allegation that the government caused her to be fired. Therefore, the firing was not part of the asylum claim. Also, under Toure v. Gonzales, 443 F.3d 310, 325 (3d Cir. 2006), an IJ has a duty to develop an asylum-seeker's testimony, especially about an issue that may be dispositive.
• Corroborating letters that mention the same word "crackdown" do not support finding they are fraudulent. Perhaps they used the same translator who interpreted the original Chinese descriptions as a "crackdown."
• Complaining that corroborating letters do not say anything new is not a valid complaint -- corroboration is supposed to back up the main details, sometimes with a different view of the same event. It is improper to critique corroborating letters for offering a different view of the same main details.
• A fear of persecution can be based on hearing about security officers visiting the home. It is improper to say someone must personally see the officers visiting the home in order to have a well-founded fear. In fact, if she had been at home to see the officers visiting, she might be sitting in jail today instead of having a chance to flee and seek asylum.
• Failure to corroborate continued practice of Falun Gong in the US post-fleeing is not fatal when an asylum claim is baesd on the Chinese government's perception of someone as a Falun Gong practitioner based on what happened before fleeing.

The Third Circuit criticized the BIA's view of the evidence as "also perplexing." It is improper to criticize testimony as vague when it was not vague at all -- the testimony described what happened, fear of returning, and what might happen if she returns.

The Third Circuit had concerns about IJ Pugliese's assessment of credibility and urged the BIA to remand the case to a different IJ, as it has done in Cham and Sukwanputra.