Li v. Mukasey

Before: CALABRESI, RAGGI, AND HALL, Circuit Judges.

Shunfu Li, a native of China who claims to have been persecuted in that country for her practice of Falun Gong, petitions for review of the July 16, 2004 decision of the Board of Immigration Appeals (“BIA”) affirming the April 16, 2003 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Shunfu Li, No. A95 462 260 (BIA July 16, 2004), aff’g In re Shunfu Li, No. A95 462 260 (Immig. Ct. N.Y. City, Apr. 16, 2003). Petitioner submits that, to the extent the agency determined that her fear of future persecution was not credible, it erred in (1) finding her testimony (a) vague, and (b) inconsistent with website reports of conditions in China; and (2) faulting her failure to authenticate documentary evidence of an outstanding warrant for her arrest in China. Since the agency decided Li’s case, this court has indicated that certain inquiries or findings are necessary preliminary to holding that vague or unauthenticated evidence is not credible or cannot be relied upon. See Ming Shi Xue v. BIA, 439 F.3d 111, 121-22 (2d Cir. 2006) (holding finding of testimonial vagueness cannot by itself support adverse credibility determination unless IJ identifies “alleged inconsistencies” and provides applicant with “an opportunity to address them”); Jin Chen v. United States Dep’t of Justice, 426 F.3d 104, 114 (2d Cir. 2005) (same); Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir. 2005) (holding IJ cannot reject purportedly official documents solely because petitioner failed to authenticate them pursuant to 8 C.F.R. § 287.6). The agency’s decision did not meet the requirements imposed by these cases, and hence was erroneous. Further, because we cannot confidently predict that the agency would reach the same decision absent these errors, we grant Li’s petition, vacate the challenged agency decision, and remand the case to the BIA for further proceedings.