Shao Qun Feng v. ERIC H. HOLDER Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAO QUN FENG,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-71673
Agency No. A098-002-222
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 6, 2009
Seattle, Washington
Before: PREGERSON and BEA, Circuit Judges, and MAHAN,** District Judge.
Shao Qun Feng (“Feng”) appeals from the BIA’s decision denying her
application for asylum. We have jurisdiction under 8 U.S.C. § 1252, and we
reverse.
FILED
NOV 12 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 11 --

-2-
The Board of Immigration Appeals (“BIA”) conducted its own review of the
evidence and law in this case. Accordingly, our review “‘is limited to the BIA’s
decision, except to the extent the Immigration Judge’s (“IJ’s”) opinion is expressly
adopted.’” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting
Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). We review an IJ’s
credibility determination for substantial evidence. Malkandi v. Holder, 576 F.3d
906, 908 (9th Cir. 2009).
A trier of fact must consider “the totality of the circumstances, and all
relevant factors,” in making a credibility determination. 8 U.S.C. §
1158(b)(1)(B)(iii). Here, the IJ’s adverse credibility determination was based
entirely on inconsistencies between the English-language declaration attached to
the first asylum application and Feng’s in-court testimony. That first asylum
application should not have been accepted into evidence by the IJ at Feng’s merits
hearing because the statements it contained cannot be reliably attributed to Feng.
There is very little evidence that the attorney who submitted the first asylum
application was authorized by Feng to do so. Feng was apprehended off the coast
of Puerto Rico in a boat with twenty-four other Chinese citizens. While she was in
detention in Puerto Rico, her family hired an attorney to represent her. She spoke
to the attorney’s Mandarin-speaking assistant on two occasions, for fifteen minutes

-- 2 of 11 --

-3-
each time, but testified that she never saw or spoke with the actual attorney. The IJ
in Washington state had no record of any prior attorney representing Feng, and no
other attorney filed a formal entry of appearance on her case. See 8 C.F.R. §
1003.17(a) (“In any proceeding before an Immigration Judge in which the alien is
represented, the attorney . . . shall file a Notice of Appearance . . . .”). Feng
testified that she had no knowledge that the first attorney filed anything on her
behalf. There was insufficient evidence from which the court could conclude that
this first attorney was authorized to represent Feng.
Generally, “[t]he applicant’s signature establishes a presumption that the
applicant is aware of the contents of the application.” 8 C.F.R. § 208.3(c)(2). That
presumption is not triggered here. Feng explained at her merits hearing that while
she was detained in Puerto Rico, only the signature page of the first asylum
application was sent to her for her signature. More importantly, the signature page,
as with the rest of the asylum application, is in English. There is no evidence in
the record indicating that Feng speaks or reads English. At oral argument the
government agreed that Feng does not speak or read English. There is therefore no
presumption that Feng was aware of the contents of that first application.
Furthermore, “faulty or unreliable translations can undermine the evidence
on which an adverse credibility determination is based.” He v. Ashcroft, 328 F.3d

-- 3 of 11 --

-4-
593, 597 (9th Cir. 2003) (citing Balasubramanrim v. INS, 143 F.3d 157, 162-64
(3d Cir. 1995)). It is undisputed that Feng speaks Cantonese and not Mandarin, the
language spoken by the first attorney’s assistant. The difference between these
languages is significant enough that the first IJ before whom Feng appeared
insured that Feng received a Cantonese and not a Mandarin interpreter. See
Richard Warren Perry, The Logic of the Modern Nation-State and the Legal
Construction of Native American Tribal Identity, 28 Ind. L. Rev. 547, 568 n.105
(1995) (noting that spoken Cantonese and Mandarin are not for the most part
mutually intelligible); Cindy Collins, Guests, Not Strangers . . . Refining the Inner
‘Ear’ to Strengthen Global Client Ties, 18 No. 20 Of Counsel 14, 16 (“Chinese
characters are the same in Mandarin and Cantonese but the pronunciations are
radically different, depending on what part of the country the speaker is from.”).
The first asylum application was not sufficiently reliable because there is nothing
to establish that Feng understood the language of the attorney’s assistant.
The fact that some questions in the first asylum application were accurately
answered does not affect our decision. The questions which were accurately
answered were simple and perfunctory, including dates, locations and occupations,
which are easier to translate. See Singh v. INS, 292 F.3d 1017, 1022 (9th Cir.
2002) (holding that where petitioner did not speak the same language of his

-- 4 of 11 --

1 While the Singh court considered the reliability of statements made in an
airport interview and not an asylum application, we believe that the Singh court’s
attention to the language difficulties experienced by the petitioner in that case to be
key. The dissent is correct that the court in Singh examined other factors which
buttressed the court’s conclusion that the short airport interview conducted in a
language the petitioner did not understand lacked “sufficient indicia of reliability
and accuracy on its own to constitute substantial evidence supporting an adverse
credibility determination.” Id. at 1024. The dissent relies upon these other factors
to distinguish this case from Singh. The Singh court’s “principal concern,”
however, was how the language barriers undermined its confidence in the accuracy
of the interview statements. Id. at 1022.
-5-
translator, the resulting translated statement which included accurate answers to
some perfunctory questions “lacked sufficient indicia of reliability and accuracy on
its own to constitute substantial evidence supporting an adverse credibility
determination”).1
Without the first asylum application, which never should have been
admitted, substantial evidence does not support the IJ’s adverse credibility finding.
Feng testified consistently with the other record evidence that she suffered two
forced abortions. The law is clear that suffering a forced abortion as part of a
coercive population control measure constitutes past persecution. 8 U.S.C. §
1101(a)(42). The IJ agreed that, if Feng were considered credible, “she would
have established past persecution and therefore would be granted asylum.”

-- 5 of 11 --

2 Because we hold that substantial evidence did not support the IJ’s adverse
credibility and reverse on that basis, we do not reach the issue of Feng’s claim of
ineffective assistance of counsel.
-6-
CONCLUSION
Substantial evidence does not support the adverse credibility finding in this
case. We reverse and remand to BIA for further proceedings on the merits of
Feng’s asylum application, excising the first, tainted asylum application from the
evidence.2
REVERSED and REMANDED.

-- 6 of 11 --

1 Where would such accurate and personal information come from but from
Feng? Sure, it is only circumstantial evidence Feng produced the information for
the application, but as Henry David Thoreau said, “Some circumstantial evidence
is very strong, as when you find a trout in the milk.” Henry David Thoreau,
Journal, Nov. 11, 1850, 2 Journal of Henry D. Thoreau 94 (Bradford Torrey &
Francis H. Allen eds. 1962). The amount of accurate personal information in
Feng’s first application is strong circumstantial evidence Feng produced it,
especially in view the record does not establish any other source for the
information transmitted by the retained attorney’s assistant. Remember, there was
no evidence another Feng family member was supplying the information in a loud
stage whisper.
The majority dedicates a substantial portion of its analysis to evidence that
Feng did not understand the language used to prepare the application and didn’t
know what she was signing. Not a word though as to how detailed personal
information could have snuck into the application but for Feng. Nor is there any
explanation why the application got the “kicked-down-the-stairs-by-a-government-
official” story wrong but got her school’s name and her son’s birth date right.
1
BEA, Circuit Judge, dissenting.
I respectfully dissent. The IJ did not err when he admitted Feng’s first
asylum application into evidence because it contained sufficient indicia of
reliability to allow a trier of fact to conclude the information in that asylum
application came from Feng: accurate biological, family, education, and work
history information.1 Because Feng’s answers in her first application were
inconsistent with answers in her second application and with her asylum hearing
testimony, there is substantial evidence in the record from which the IJ could have
concluded Feng was not credible. Therefore, I would deny Feng’s petition for
review.
FILED
NOV 12 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 7 of 11 --

2
United States immigration authorities apprehended Feng, a native and
citizen of China, when she attempted to enter Puerto Rico. Feng’s family hired an
attorney they knew had a Mandarin-speaking assistant to prepare Feng’s asylum
application, and told Feng that her attorney had a Mandarin-speaking assistant.
Feng spoke with the assistant twice by telephone for fifteen minutes each time, and
Feng asked the assistant to prepare an asylum application for her. The attorney
prepared Feng’s asylum application and sent it to her. The application was written
in English. There is no evidence in the record that Feng can read English, and no
one translated the application for her. Nevertheless, she signed the signature page
of the application. The attorney attempted to file the application, but it was
rejected because Feng had not yet been served with a Notice to Appear. Later,
Feng hired a new attorney who filed a second asylum application.
The primary basis for the IJ’s adverse credibility finding was that there were
inconsistencies between Feng’s first asylum application and her asylum hearing
testimony, as well as between Feng’s first and second asylum applications. These
inconsistencies are clear and undisputed. For example, Feng stated in her first
asylum application that government officials came into her home and kicked her
down the stairs, which caused the death of her fetus. However, Feng testified that
a doctor discovered she was pregnant during a regular checkup and performed an

-- 8 of 11 --

3
abortion over her objection.
This court must affirm an IJ’s credibility determination if it is supported by
substantial evidence. Malkandi v. Holder, 576 F.3d 906, 908 (9th Cir. 2009).
Evidence that lacks sufficient indicia of reliability and accuracy does not constitute
substantial evidence. See Singh v. INS, 292 F.3d 1017 (9th Cir. 2002). The
majority holds the first application was not sufficiently reliable and cannot
constitute substantial evidence because Feng speaks Cantonese whereas the
attorney’s assistant who interviewed Feng to prepare Feng’s first application spoke
Mandarin.
In Singh, the IJ found Singh not credible based on inconsistencies between
Singh’s statements during an airport interview with an INS officer and his
testimony before the IJ. Id. at 1019. The translator who participated in the airport
interview spoke Hindi, a language Singh, a native Punjabi speaker, understood
only “a little.” Id. at 1020. The government contended that “the accuracy of
Singh’s answers to some of the questions during the interview demonstrate[d] that
translation was not a problem.” Id. at 1022. However, this court explained that
those questions “were simple in nature, involving such items as his name, place
and date of birth.” Id. The inconsistent answers were given in response to
questions that presented greater translation difficulty, for example, “a legal term of

-- 9 of 11 --

4
art such as ‘persecution.’” Id. Therefore, this court held that the airport interview
transcript “lacked sufficient indicia of reliability and accuracy on its own to
constitute substantial evidence supporting an adverse credibility determination.”
Id. at 1022.
The instant case is distinguishable from Singh. Feng had multiple
opportunities during her asylum hearing to explain the inconsistencies between her
first application and both her second application and her testimony. But at no point
did she state that she did not understand Mandarin or that she had difficulty
communicating with the attorney’s assistant. In fact, Feng testified that her
relatives hired an attorney they knew had a Mandarin-speaking assistant. Singh, on
the other hand, was forced to rely on the government-provided translator who
spoke a language Singh spoke only “a little.” Id.
Additionally, two factors this court relied upon to support its holding in
Singh are not relevant in this case. First, the court in Singh explained that the
questions asked during an airport interview are not designed to elicit as detailed a
response as an asylum application. Therefore, the alien may later, in response to
more detailed questions, reveal details that appear inconsistent with an airport
interview. Id. at 1023. Second, the court in Singh explained that arriving aliens,
particularly those who have been abused during interrogations by their

-- 10 of 11 --

5
government, may be reluctant to share information with government officials upon
their arrival to the United States. Id. at 1024. Here, however, Feng’s inconsistent
statements were not the product of an airport interview; rather, they were her
responses to the questions in an asylum application. Further, Feng was not being
interrogated by a government official—she was talking with the assistant of an
attorney hired by her family.
Absent evidence of translation difficulties between Feng and the attorney’s
assistant, the IJ could have reasonably concluded, based on the accuracy of the
responses in the first application, that Feng provided the information in the first
application. The first application contained accurate responses to numerous
questions, including her: first, middle, and last name; sex; marital status; date, city,
and country of birth; nationality; date of entry into the U.S.; most recent address in
China; husband’s name and date of birth; son’s name and date of birth; educational
history, including the name and type of school; and parents’ names and places of
birth. On this basis, the IJ could have reasonably concluded the rest of the
statements in the first application were also made by Feng.
Based on the inconsistencies between Feng’s first application and both her
second application and her testimony before the IJ, substantial evidence supports
the IJ’s finding that Feng was not credible. Therefore, I respectfully dissent.

-- 11 of 11 --