Gua Zo Lin v. Gonzales

166 F. App'x 547
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 13, 2006
DocketNo. 03-4909
StatusPublished

This text of 166 F. App'x 547 (Gua Zo Lin v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gua Zo Lin v. Gonzales, 166 F. App'x 547 (2d Cir. 2006).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review of the order of the Board of Immigration Appeals (“BIA”) is hereby DENIED in part and GRANTED in part. The BIA’s order is VACATED in part and the case is REMANDED for further proceedings consistent with this order.

Petitioner Gua Zo Lin is a Chinese citizen whose application for asylum, withholding of removal, and relief pursuant to the Convention Against Torture (“CAT”) largely derived from the alleged forcible sterilization of his wife by Chinese authorities. Gua Zo Lin now petitions for review of the BIA’s April 15, 2003 order summarily affirming the decision of an Immigration Judge (“U”) denying his request for relief for removal on a finding that he was not a credible witness. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.

1. Asylum and Withholding of Removal

To qualify for asylum, “a refugee must demonstrate past persecution or a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’ ” Zhou Yun Zhang v. United States INS, 386 F.3d 66, 70 (2d Cir.2004) (quoting 8 U.S.C. § 1101(a)(42)). For withholding of removal, an applicant “must demonstrate that, if returned to his country, his life or freedom would in fact be threatened on one of the protected refugee grounds.” Id. at 71 (citing 8 U.S.C. § 1231(b)(3)(A)). Where the evidence of a threat to an applicant’s freedom wholly depends upon the applicant’s credibility, a denial of asylum based upon an adverse credibility determination necessarily forecloses success on a claim for withholding of removal. See Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam).

The law recognizes forcible abortion and sterilization as forms of political persecution that can qualify an applicant for asylum. See 8 U.S.C. § 1101(a)(42); Zhou Yun Zhang v. United States INS, 386 F.3d at 71. Further, the BIA construes § 1101(a)(42) to permit derivative spousal claims. Thus, someone such as petitioner, who claims that his wife was the victim of a forcible sterilization, can base his own asylum claim on his wife’s persecution, even though she remains in them native country. Zhou Yun Zhang v. United States INS, 386 F.3d at 71-72; see In re C-Y-Z-, 21 I. & N. Dec. 915, 918, 1997 WL 353222 (BIA 1997). Moreover, this court has recently stated that a spouse’s forced abortion or sterilization establishes both past persecution and “lead[s] to an irrebuttable presumption of a well-founded fear of future persecution....” Li Yong Cao v. United States Dep’t of Justice, 421 F.3d 149, 155-156 (2d Cir.2005) (citing In re Y-T-L-, 23 I. & N. Dec. 601, 605-08, 2003 WL 21206539 (BIA 2003)).

When, as in this case, the BIA summarily affirms an IJ’s decision to deny asylum and withholding of removal, we review the decision of the IJ directly. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). The IJ’s findings of fact “are conclusive unless [550]*550any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We will not disturb an IJ’s factual findings if they are “supported by ‘reasonable, substantial, and probative’ evidence in the record.” Wu Biao Chen v. INS, 344 F.3d at 275 (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). Indeed, “[w]hen a factual challenge pertains to a credibility finding made by an IJ and adopted by the BIA, we afford ‘particular deference’ in applying the substantial evidence standard,” Zhou Yun Zhang v. United States INS, 386 F.3d at 73 (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)), provided the IJ has not misstated the record and has given specific, cogent reasons for the credibility ruling, thereby demonstrating that it is not based on bald speculation or caprice, see id. at 74; see also Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). Specific examples of an applicant’s inconsistent, contradictory, or inherently improbable testimony can provide a cogent reason for an adverse credibility ruling. See Zhou Yun Zhang v. United States INS, 386 F.3d at 74. On a challenge to such a ruling, this court will not itself “hypothesize excuses” for the inconsistencies, contradictions, or improbabilities. Id. We do, however, expect the IJ to have engaged in a “reasoned evaluation” of any explanations the applicant may have offered for flaws in his testimony. Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 403 (2d Cir.2005); see also Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir.2005) (per curiam).

Applying these principles to this case, we identify several concerns that require us to remand this case for further proceedings to clarify the IJ’s decision.

First, although the IJ identified a number of inconsistencies and improbabilities in petitioner’s testimony, he summarily dismissed petitioner’s explanations as unsatisfactory without identifying the explanations or outlining his reasons for finding them unconvincing. We do not demand that an IJ address every piece of evidence offered by an applicant, but he must offer a sufficient rationale for his adverse credibility decision to demonstrate that his reasoning is sound and not arbitrary. See Cao He Lin v. United States Dep’t of Justice, 428 F.3d at 403; Zhou Yun Zhang v. United States INS, 386 F.3d at 74. The conclusory dismissal of explanations in this case does not give that assurance. While it may be obvious, even on review of a cold record, that petitioner’s professed memory lapse is an unsatisfactory explanation for inconsistent evidence about a material issue such as his wife’s incarceration in China, we cannot so easily discern the IJ’s reasoning in rejecting petitioner’s explanations for other evidentiary inconsistencies pertaining to fine amounts, an entry on petitioner’s household registry listing him as a fisherman, and the omission of his own past imprisonment on his asylum claim.

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Related

United States v. Harry Bernstein
533 F.2d 775 (Second Circuit, 1976)
Chun Gao v. Alberto R. Gonzales, Attorney General
424 F.3d 122 (Second Circuit, 2005)
Y-T-L
23 I. & N. Dec. 601 (Board of Immigration Appeals, 2003)
C-Y-Z
21 I. & N. Dec. 915 (Board of Immigration Appeals, 1997)
KAI HING HUI
15 I. & N. Dec. 288 (Board of Immigration Appeals, 1975)

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166 F. App'x 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gua-zo-lin-v-gonzales-ca2-2006.