News From The Courts

Li v. Ashcroft, 2005 U.S. App. LEXIS 818. 

The Ninth Circuit Court of Appeals reviewed a Board of Immigration Appeals’ decision affirming an Immigration Judge’s denial of a petitioner’s application for asylum. The Petitioner is a native and citizen of China, and a practitioner of the Falun Gong religion. She sought asylum in the United States from alleged religious persecution by the Chinese’s government. The Board of Immigration Appeals affirmed the ruling against the Petitioner, claiming that inconsistencies in the record led them to doubt the Petitioner’s credibility. 

The Ninth Circuit Court found that the Board of Immigration Appeal’s adverse credibility claim was not supported by any substantial evidence. The Court stated that there was no inconsistency in the fact that State Department materials note that “some” Falun Gong practitioners have difficulty obtaining passports, and that the Petitioner was able to obtain a passport in her own name. They further held that the Board of Immigration Appeals engaged in impermissible speculation concerning the Petitioner’s name not appearing on a list of known Falun Gong practitioners in China, and that the Board of Immigration Appeals improperly found an inconsistency between the Petitioner’s testimony and an off-the-record request made by her attorney regarding documents concerning the Petitioner’s termination from her job. The Court stated that the Petitioner should have been able to explain the perceived discrepancies, and that the Board of Immigration Appeals’ decision that the Petitioner lacked credibility because she did not provide any corroborating evidence was unsupported and incorrect. 

Because the Board of Immigration Appeals and the Immigration Judge failed to answer the question of whether the Petitioner’s testimony, if found credible, would be sufficient to establish eligibility for asylum, the Ninth Circuit remanded the proceedings back to be determined consistent with their findings. 

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