On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098-469-035
The opinion of the court was delivered by: Reinhardt, Circuit Judge:
Submitted June 30, 2011 San Francisco, California
Before: Procter Hug, Jr., Stephen Reinhardt and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Reinhardt
Yaogang Ren petitions for review of the denial of his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. Because he filed his application after May 11, 2005, his case is governed by the credibility and corroboration standards set forth in the REAL ID Act. Applying those standards, we hold that the Immigration Judge's ("IJ") adverse credibility determination was impermissibly based on mischaracterizations of Ren's testimony as well as inconsistencies that, considering the totality of the circumstances, were trivial. We further hold, however, that Ren was given the proper notice and opportunity to respond to the IJ's request for corroborative evidence. Because Ren failed to provide that evidence and did not provide any explanation for his failure to do so, and because the IJ was not compelled to conclude that Ren met his burden of proof without that evidence, we deny his petition.
Yaogang Ren, a native and citizen of China, entered the United States on a nonimmigrant B-1 visa on February 27, 2005. On June 7, 2005, he filed an application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). In the statement submitted with his asylum application, and in his testimony before the IJ, he gave the following account of the events that led him to the United States and the subsequent relevant occurrences.
In 2003, at a low-point in Ren's life, when the spread of SARS had forced him to close his restaurant and he found himself out of work and depressed, a friend introduced him to Christianity. At his friend's urging, Ren began to participate in underground church meetings, which were held in different private homes, including Ren's, on a rotating basis. At those meetings, Ren "spread Gospel." Soon, several members of the church helped him buy a truck, which allowed him to start a business transporting goods, and life started "getting better."
In 2004, Ren's church activities came to the attention of the local police. Two police officers came to his home, placed him under arrest, and accused him of "spreading [an] evil cult and host[ing] superstitious gatherings at home to poison the innocent people."
The police detained Ren for five days. On the first day, two officers interrogated him for one to two hours. Ren told the officers that "the end of the world is coming and that God is going to come down to the earth." The officers told Ren that he was "blinded by the religion." During the interrogation, one of the officers picked up an ashtray and threw it at him. As Ren choked from breathing in the ashes, the officers started punching him and beating him with a baton. Ren was beaten "so badly [he] was on the floor. [He] wouldn't dare come up." Later, the officers demanded that he write a confession. When he refused, the officers deprived him of food and water. At another point, the officers told him that his "brain [wa]s damaged" and he needed to be "disinfect[ed]" by "communist sunshine." They forced him to stand in the hot sun while wearing a raincoat. He sweated profusely and eventually fainted.
Ren was released on the fifth day of his detention, after his wife paid bail and he gave the police a letter in which he promised to "break away with Christianity and stop spreading Gospels." The police then placed him under residential surveillance, and required him to check in with them every Monday. During these check-ins, police taunted him with comments like, "Why don't you help me to call Jesus here? You kneel down and bow to me twice. I can help you then." The police also confiscated the truck that he had been using for his delivery business, asserting that it did not pass the annual inspection test and was, therefore, illegal.
Unable to work or practice his religion, Ren decided that he could no longer remain in China. He secured a visa through a friend who solicited a "snakehead,"*fn1 and set out for the U.S., leaving his wife and daughter behind.
Since arriving in the U.S., Ren has been in touch with his wife by phone. She informed him that the police had been to their house looking for him and that she had denied knowing where he was. The police were "very mad at [his] running away," and had ordered him to come back immediately to "accept the judgment of the Party" for exposing his true face to "oppose the Party and the Government." Ren "dare[s] not go back to China" for fear that he will be persecuted due to his involvement with Christianity.
Within one month of arriving in the United States, Ren became a member of the United Christian Church in Hacienda Heights, California. He attends church often, although he sometimes has to miss services in order to perform odd jobs that he takes on to support himself.
After he applied for asylum, Ren was interviewed by an asylum officer; that officer referred him to removal proceedings. On July 19, 2005, Ren was served with a Notice to Appear and charged with removability pursuant to 8 U.S.C. 1227 § (a)(1)(B) for overstaying his non-immigrant visa.
Ren first appeared before an IJ on September 1, 2005. He conceded removability, but continued to seek asylum, withholding of removal, and CAT protection. On May 16, 2006, the IJ held a merits hearing, during which Ren testified. The IJ was not "prepared to issue a decision" on that day, so she recessed the hearing until May 26, 2006. On that date, the IJ informed Ren that he had not yet met his burden of proof, and that it was "really important for him to have corroborating evidence in this case." She then granted a continuance to allow Ren to gather specific corroborating evidence. On October 31, 2006, when the hearing resumed and Ren failed to provide the requested evidence, the IJ determined that he had failed to meet his burden of proof to show past persecution or a well-founded fear of future prosecution, and denied his application for asylum, as well as all other relief. The IJ based her decision on two alternative grounds. First, she made an adverse credibility determination based on "inconsistencies between [Ren's] testimony and his Declaration, as well as the inherent implausibility of his claim in comparison to his actions." Second, she concluded that, even assuming Ren's testimony had been credible, he "ha[d] failed to meet his burden of proof as he has failed to provide the readily available corroborating evidence in support of his claim."
Ren timely appealed the IJ's decision to the BIA, which affirmed the IJ without opinion. Ren then filed a timely ...