Xi Quang Tang v. ATTORNEY GENERAL OF THE UNITED STATES On

IMG-184 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2586
___________
XI QUANG TANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A99 533 204)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 14, 2009
Before: MCKEE, NYGAARD AND ROTH, Circuit Judges
(Opinion filed: November 20, 2009)
___________
OPINION
___________
PER CURIAM
Xi Qiang Tang, a native and citizen of China, entered the United States in
November 2005. He appeared before an Immigration Judge (“IJ”) and conceded that he
was removable for entering without being admitted or paroled. See Immigration and

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Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)]. Tang filed an
application for asylum, withholding of removal, and relief under the Convention Against
Torture. He alleged that he suffered past persecution, and feared persecution in the
future, on account of his religion. Tang claimed that he had been a member of an
“underground” Christian church whose parishioners were targeted for arrest. After a
warrant for Tang’s arrest was published on the town bulletin board, he was fired from his
job. He then left town for a friend’s house, where he remained in hiding for several
months before leaving for the United States. In support of his claim, Tang submitted a
Chinese baptismal document, a photograph of the choir performing in the underground
church, and the warrant for his arrest. He also provided a “Certificate of Baptism” from a
Philadelphia church, photographs of the baptism ceremony, and statements from his sister
and the friend with whom he stayed while in hiding.
The IJ denied relief, finding that Tang provided inconsistent testimony, lacked
sufficient knowledge of Christianity and China’s church registration policies, and failed
to provide reasonably expected corroboration. Tang appealed to the Board of
Immigration Appeals (“BIA”), arguing that the IJ’s credibility determination was not
supported by substantial evidence. The BIA adopted and affirmed the IJ’s decision,
concluding that Tang “has failed to resolve the numerous credibility issues raised by the
[IJ] and has not provided an explanation for his lack of corroborating evidence.” Tang
filed a timely petition for review.

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The Government argues that Tang failed to exhaust his administrative remedies “with1
respect to each individual element” of the IJ’s decision. We disagree. In his brief to the
Board, Tang asserted that the IJ “incorrectly determined that [his] testimony was not
credible.” See Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006) (stating that “so
long as an immigration petitioner makes some effort, however insufficient, to place the
Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed
to have exhausted her administrative remedies.”). In addition, the Board, citing to
numerous pages from the transcript, referred to Tang’s “contradictory testimony, prior
statements, and material inconsistencies,” as well as his failure to provide corroborating
documentation. See Lin v. Att’y Gen., 543 F.3d 114, 122-23 (3d Cir. 2008) (noting that
exhaustion may occur when the BIA sua sponte considers an issue).
3
We have jurisdiction under INA § 242 [8 U.S.C. § 1252]. Because the BIA1
adopted the findings of the IJ and also commented on the sufficiency of the IJ’s
determinations, this Court reviews the decisions of both the BIA and the IJ. See Kaita v.
Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008). Our review of these decisions is for
substantial evidence, considering whether they are “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Lin-Zheng v. Att’y Gen.,
557 F.3d 147, 155 (3d Cir. 2009) (internal citation omitted). We will uphold an adverse
credibility determination under the substantial evidence standard “‘unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Lin v. Att’y Gen., 543
F.3d 114, 119 (3d Cir. 2008) (internal citation omitted). Adverse credibility
determinations based on speculation or conjecture, rather than on record evidence, are
reversible. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Furthermore, we
must uphold a determination regarding the availability of corroborating evidence unless
“a reasonable trier of fact is compelled to conclude that such corroborating evidence is

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Because Tang’s asylum application was filed after the effective date of the REAL ID2
Act (May 11, 2005), the IJ was allowed to make a credibility determination “without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim . . . .” INA § 208(b)(1)(B)(iii) [8 U.S.C. § 1158(b)(1)(B)(iii)]. We
conclude that the adverse credibility determinations in this case cannot survive even
under this new provision, the lawfulness of which we have not considered.
The only other inconsistency cited by the IJ pertained to Tang’s Chinese baptismal3
document, which indicated that he was baptized on November 15, 2000. Tang testified,
however, that he was baptized in November 2001. Tang explained that the date on the
document was a “mistake.” We conclude that this date discrepancy does not provide
substantial evidence in support of the IJ’s adverse credibility finding, particularly in light
of Tang’s otherwise consistent account and other pertinent documentary evidence. See
INA § 208(b)(1)(B)(iii) [8 U.S.C. § 1158(b)(1)(B)(iii)]. The IJ found that those “other
documents contradicted [Tang’s] . . . claim that he was a member of an unregistered
underground Christian church, which violated China’s laws and therefore caused the
government to seek his arrest.” In reaching this conclusion, however, the IJ failed to
address a March 18, 2005, warrant to “arrest religion member” Tang, a letter from Tang’s
sister describing village officials’ efforts to locate Tang, and a “certificate” from the
friend with whom Tang stayed indicating that Tang had “escaped” because “he was
want[ed] by [the] Police Bureau for religion belief.” See Chukwu v. Att’y Gen., 484 F.3d
185, 189 (3d Cir. 2007) (holding that IJ “failed to take into account relevant and
persuasive evidence that would not only explain the alleged inconsistencies, but would
also support [the petitioner’s] allegations of . . . persecution.”).
4
unavailable.” INA § 242(b)(4) [8 U.S.C. § 1252(b)(4)]; see also Sandie v. Att’y Gen.,2
562 F.3d 246, 252 (3d Cir. 2009).
We conclude that the IJ’s adverse credibility determination is not supported by
substantial evidence. The primary inconsistency cited by the IJ involved the photograph
of the choir performing at the “underground” church, which Tang claimed was located in
a single family residence. See Administrative Record (“A.R.”), 97-98, 260. The IJ3

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The IJ also focused on perceived inconsistencies concerning the number of people4
who belonged to Tang’s church. Tang initially testified that there were “[a] little over 10”
members. A.R. 92. According to the IJ, Tang “later doubled the size of the membership
from 10 to 20 when confronted with the photograph of the choir.” This is not an accurate
characterization of Tang’s testimony. Responding to a question from the IJ that was
unrelated to the photograph, Tang in fact stated that there were “[o]ver 10 but less than
20” members. Id. at 105.
Notably, the IJ failed to acknowledge that the record contained the Department of5
State Country Reports, in which the registration of “house churches” in China is
discussed.
5
concluded that the photograph appeared to show “an auditorium sized facility.” Tang’s4
attorney attempted to elicit details about the church building on direct examination, but
the IJ would not allow it, asking, “[w]hat’s the relevance of what kind of building?” A.R.
80. Tang’s attorney explained that the building could indicate that it was an unregistered
church. Id. But the IJ did not relent, stating, “I have no background as to, if, if a church
is registered or not. So [Tang] can testify until, all day, and unless you give me some
background on it, I can’t make these deductions.” Id. Tang did discuss the size of the5
church building on cross examination, however, testifying that “[p]eople [in his town]
built pretty big houses,” that his church was located in a two-story house, and that the
house was “a little bigger than [the approximately 15 x 30 foot courtroom], much more in
length.” Id. at 105-06. The IJ acknowledged that “[i]t’s a big court, I mean, relatively
that would be a big house.” Id. at 106. Moreover, because the photograph did not
provide a full view of the room, the IJ should not have expected “indicia of it being a
personal family residence.”

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The IJ suggested that Tang’s church was properly registered with Chinese authorities6
because he “did not dispute that there was a sanctioned affiliation between his church and
the government.” This is a mischaracterization of Tang’s testimony. He first asserted
that there was no affiliation, then stated that he was not sure whether an affiliation existed
between his church and a nearby public school.
6
In addition, the IJ’s conclusions regarding Tang’s alleged lack of knowledge are
not supported by substantial evidence. The IJ found that Tang did not know “the basis for
China’s church registration policy,” “failed to demonstrate any basic knowledge about
Christianity,” and was unaware of the denominational affiliation, if any, of his church in
China. First, the IJ unreasonably required Tang to demonstrate an understanding of the
reasons behind China’s policies toward religion. Cf. Rizal v. Gonzales, 442 F.3d 84, 906
(2d Cir. 2006) (“the critical showing that an applicant must make . . . is that he has
suffered past persecution, or fears future persecution, on the basis of religion,” not that he
has detailed knowledge about a religion). And Tang did recognize that his church was
targeted because “it is apparently [an] illegal organization.” A.R. 104. Further, the IJ’s
conclusion that Tang “failed to demonstrate any basic knowledge about Christianity” is
incorrect. When asked by the IJ to state “[j]ust the important things” he had learned about
Christianity, Tang replied that “[w]e all have sins. Jesus uses blood to, to wash away ours
sins. After we die Jesus will help us so we can, so we could go to Heaven.” A.R. 87. In
addition, the IJ improperly faulted Tang because he did not know the denomination of the
church he attended in China. Although the IJ concluded that “[t]here was no evidence
presented that churches in China do not have denominations,” it does not follow that

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Tang’s church must have been classified by religious doctrine or that Tang would have
knowledge of such a classification. See Ahmadshah v. Ashcroft, 396 F.3d 917, 920 n.2
(8th Cir. 2005).
Finally, even if the IJ reasonably required evidence corroborating Tang’s
“Christian affiliation in the United States,” the IJ’s examination of whether such evidence
had been provided was inadequate. In denying relief based on a lack of corroboration, the
IJ must conduct the following three-part inquiry: (1) an identification of facts for which it
is reasonable to expect corroboration; (2) an inquiry as to whether the applicant has
provided information corroborating the relevant facts; and, if he has not, (3) an analysis of
whether the applicant has adequately explained his failure to do so. See Toure v. Att’y
Gen., 443 F.3d 310, 323 (3d Cir. 2006). Here, the IJ concluded that Tang could have
submitted a letter from his pastor, a statement from the relative who first took him to the
church, or the study material he used to prepare for his baptism. The IJ also rejected
Tang’s explanation that he had left his baptism study materials at home and that his
preacher did not have time to testify. Importantly, however, the IJ failed to address other
evidence corroborating Tang’s membership in the Philadelphia church, such as his
“Certificate of Baptism” and photographs of his baptism ceremony. See Cham v. Att’y
Gen., 445 F.3d 683, 693 (3d Cir. 2006) (recognizing that an IJ must “actually consider”
the evidence presented by a party).
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s
order of May 6, 2008, and remand for further proceedings consistent with this opinion.

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