Guo v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: October 25, 2004
• Docket: 03-2972
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

10-25-2004

Guo v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 03-2972

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Recommended Citation "Guo v. Atty Gen USA" (2004). 2004 Decisions. Paper 165. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/165

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Peter D. Keisler Assistant Attorney General, Civil UNITED STATES Division COURT OF APPEALS Mark C. Walters FOR THE THIRD CIRCUIT Assistant Director Theordore C. Hirt, Esquire (Argued) Douglas E. Ginsburg, Esquire No. 03-2972 John D. Williams, Esquire John M . McAdams, Jr., Esquire Department of Justice Civil Division JIAN LIAN GUO, Office of Immigration Litigation P.O. Box 878 Petitioner Ben Franklin Station Washington, DC 20044 v. Attorneys for Respondent JOHN ASHCROFT, Attorney General of the United States OPINION OF THE COURT Respondent

AM BRO, Circuit Judge On Petition for Review of a Final Order Jian Lian Guo seeks review of the of the Board of Immigration Appeals order of the Board of Immigration Appeals (No. A77-297-574) (“Board”) denying her motion to reopen her immigration proceedings. Because we conclude that the Board failed to Argued June 29, 2004 substantiate its decision and impermissibly relied on a prior adverse credibility Before: AMBRO, ALDISERT and determination unrelated to Guo’s petition STAPLETON, Circuit Judges for asylum, we grant the petition for r e vie w a nd r em a nd f or f ur th er (Opinion filed: October 25, 2004) proceedings. Theodore N. Cox, Esquire I. Factual and Procedural History Joshua Bardavid, Esquire (Argued) Guo is a native and citizen of 401 Broadway, Suite 701 China. She entered the United States New York, NY 10013 without valid entry documentation on January 3, 2000. On January 21, 2000, the Attorney for Petitioner Immigration and Naturalization Service (“INS”)1 charged her with removability Sunday school; she allegedly evaded arrest based on § 212(a)(7)(A)(i)(I) of the and fled the country. Guo further claimed Immigration and Nationality Act (“INA”), to have left behind in China her first 8 U.S.C. § 1182(a)(7)(A)(i)(I). At a husband, whom she had married in 1999 master calendar hearing on March 23, and whose whereabouts she did not know. 2000, Guo conceded removability. The same day she filed an application for On August 2, 2000, an Immigration asylum based on religious persecution and Judge (“IJ”) denied Guo’s application for requested withholding of removal under asylum. The IJ found that Guo was not INA § 241(b), 8 U.S.C. §1231(b), and credible. He concluded that her story was Article III of the United Nations fabricated and, even if true, would not Convention Against Torture.2 merit asylum. He also doubted Guo’s Guo initially justified her professed ignorance of her first husband’s application for asylum on the basis of location and speculated that he was in the religious persecution. She stated that she United States. He therefore denied her had joined an “underground church” in application for asylum. Guo appealed, and China in 1996 and was baptized in July on October 29, 2002, the Board affirmed 1997. In December 1999, government without issuing a separate opinion. officials purportedly sought to arrest her at On January 21, 2003, Guo filed a a church meeting where she was teaching motion to reopen the immigration proceedings base d on intervening 1 developments. In March 2001, she On March 1, 2003, the INS ceased to married Li Kang Chan in New York. On exist as an agency within the Department January 15, 2002, their first child was born of Justice and the INS’s functions were in Manhattan. Later that year, Guo transferred to the Department of Homeland discovered that she was again pregnant. 3 Security. See Homeland Security Act of She thus claimed that she was entitled to 2002, Pub. L. No. 107-296, §§ 441, 451 & asylum based on China’s one-child family 471, 116 Stat. 2135. The Board remains planning policy; she feared that if she within the U.S. Department of Justice. returned to China she would be subject to 2 China’s forcible sterilization policy and The United Nations Convention other penalties. In support of her motion Against Torture and Other Cruel, Inhuman to reopen, Guo submitted a previous Board or Degrading Treatment or Punishment, decision granting reopening for a Chinese Dec. 10, 1984, 1465 U.N.T.S. 85, applicant with two United States-born implemented in the United States by the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 3 112 Stat. 2681-761 (codified at 8 U.S.C. § The child was born on July 24, 2003, 1231). after the Board issued its decision.

2 children, a new application for asylum, her fear of persecution on account of race, marriage certificate, the birth certificate of religion, nationality, membership in a her first child, a letter from her obstetrician particular social group, or political describing her pregnancy, and an affidavit opinion.” INA § 101(a)(42)(A), 8 U.S.C. by retired demographer John Shields Aird, § 1101(a)(42)(A). Forced abortion and Ph.D. forced sterilization constitute persecution “on account of political opinion.” INA The Board denied the motion to § 101(a)(42), 8 U.S.C. § 1101(a)(42). An reopen on June 16, 2003, explaining that individual with a well-founded fear that Guo had “failed to meaningfully address she will be forced to undergo a coercive the negative credibility determinations population control procedure of this sort or noted in the Immigration Judge’s be subject to persecution for failure to do decision.” The Board’s opinion stated that so has a well founded fear of persecution. even if it “were to find her claim credible, Id. she has not established a ‘well-founded fear’ that a reasonable person in her An applicant bears the burden of circumstances would fear persecution” on proving eligibility for asylum based on a protected basis. It concluded that the specific facts and credible testimony. 8 evidence she had presented was C.F.R. § 208.13(a); Abdille v. Ashcroft, insufficient to establish that “officials 242 F.3d 477, 482 (3d Cir. 2001). In order punish returning Chinese nationals who to demonstrate a well-founded fear of are pregnant, have given birth to children persecution, an applicant must satisfy three in foreign countries, or prohibit them from requirements: (1) he or she has a fear of having more children upon their return.” persecution in his or her native country; (2) there is a reasonable possibility that he The Board had jurisdiction over or she will be persecuted upon return to Guo’s motion to reopen under 8 C.F.R. that country; and (3) the applicant is § 1003.2(c). We have jurisdiction over her unwilling to return to that country as a timely petition for review pursuant to 8 result of his or her fear. 8 C.F.R. § U.S.C. § 1252. 208.13(b)(2)(i).4 Discussion I. Overview of the statutory framework 4 The eligibility threshold for Section 208(b) of the INA, 8 U.S.C. withholding of removal is even higher: the § 1158(b), confers on the Attorney General Attorney General must determine that discretion to grant asylum to an alien who repatriation will more likely than not is a “refugee.” An individual qualifies as jeopardize the alien’s life or freedom on a refugee if he or she is “unable or account of one of the protected grounds. unwilling” to return to his or her country INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). “because of persecution or a well-founded The applicant must therefore demonstrate a “clear probability” of persecution.

3 Board determinations are upheld if petitions for rehearing and they are “supported by reasonable, motions for a new trial on substantial, and probative evidence on the the basis of newly record considered as a whole.” INS v. discovered evidence. This is Elias-Zacarias, 502 U.S. 478, 481 (1992) e s p e c i a l l y tr ue i n a (quoting 8 U.S.C. § 1105a(a)(4)). We will deportation proceeding, reverse only if “the evidence not only where, as a general matter, supports [a contrary] conclusion, but every delay works to the compels it.” Id. at 481 n.1 (emphasis advantage of the deportable omitted). A d v e r s e c r e d ib i l i t y alien who wishes merely to determinations are factual matters and also remain in the United States. are reviewed for substantial evidence. INS v. Doherty, 502 U.S. 314, 323 (1992) Balasubramanrim v. INS, 143 F.3d 157, (citations omitted). In light of these 161 (3d Cir. 1998). They likewise will be considerations, our review is highly upheld unless “any reasonable adjudicator deferential: we review the denial of a would be compelled to conclude to the motion to reopen for abuse of discretion. contrary.” 8 U.S.C. § 1252(b)(4)(B). Id. at 323. “Discretionary decisions of the In this case, we are asked to review [Board] will not be disturbed unless they the Board’s denial of Guo’s motion to are found to be arbitrary, irrational, or reopen. As a general rule, motions to contrary to law.” Tipu v. INS, 20 F.3d 580, reopen are granted only under compelling 582 (3d Cir. 1994) (quotation omitted). circumstances. The Supreme Court has II. Application to Guo explained: Guo makes two principal The granting of a motion to arguments. First, she argues that the reopen is . . . Board erred in considering the IJ’s adverse discretionary. . . . [T]he credibility determination, which was based Attorney General has ‘broad on facts unrelated to China’s family discretion’ to grant or deny planning policies. Second, Guo suggests such motions. Motions for that the documents she submitted are reopening of immigration adequate to establish prima facie eligibility proceedings are disfavored for asylum—a reasonable likelihood that for the same reasons as are she would prevail on the merits if a motion to reopen were granted—and she contends that the Board erroneously held her to a Senathirajah v. INS, 157 F.3d 210, 215 (3d higher standard. We agree with her on Cir. 1998). Given this higher standard, an both counts. applicant who does not qualify for asylum A. Adve r s e c redib ility also does not qualify for withholding of determination removal.

4 In reviewing Guo’s initial petition irrebuttably presumed to be false. But case for asylum, the IJ deemed her testimony law does not support that once an applicant not credible. The Board relied on that is deemed uncredible, she is excluded from adverse credibility determination in making further, unrelated asylum claims.5 evaluating her motion to reopen. Because Nor does one adverse credibility finding the basis for the IJ’s credibility assessment beget another. On the contrary, an IJ must was utterly unrelated to Guo’s later claim, justify each adverse credibility finding the Board erred by taking it into with statements or record evidence consideration. specifically related to the issue under consideration. We have emphasized that Guo does not dispute that the IJ’s adverse credibility findings are afforded credibility determinations were supported deference only if they are “supported by by the record. Indeed, she would be hard specific cogent reasons.” Gao v. Ashcroft, pressed to argue otherwise. The IJ’s ruling 299 F.3d 266, 276 (3d Cir. 2002). Those contained seven distinct references to her reasons “must be substantial and bear a lack of credibility. The adverse credibility legitimate nexus to the finding.” Id. findings were directly related to the central events upon which Guo’s asylum claim Moreover, we are unable to imagine initially was based: her alleged religious a sufficient nexus between Guo’s suspect persecution. testimony concerning her alleged religious persecution and the Board’s conclusion The legitimacy of an initial about China’s family planning policy. The credibility determination does not, Government’s efforts to identify a however, justify denial of all subsequent applications for asylum. No one has explained how the IJ’s adverse credibility findings implicated Guo’s motion to reopen on a ground not previously dealt with by the IJ. Guo’s credibility (or lack 5 8 U.S.C. § 1158(d)(6) provides that an thereof) for religious persecution simply is alien adjudged by the Attorney General to not relevant to her motion to reopen in this have made a “frivolous application for case, which relied principally on the fact asylum,” as defined in the statute, will be of her second pregnancy in contravention permanently barred from entering the of China’s one-child policy and on China’s United States. There was no such finding practice of persecuting those who violate in this case. The protections afforded to the policy. the alien under this provision, as well as The Government’s argument its relatively infrequent application, reduces to a bad-faith theory of asylum indicate that Congress did not intend to law: once credibility is tarnished, all preclude an alien from reopening asylum successive asylum applications are proceedings based solely on a prior adverse credibility determination.

5 sufficient connection are unpersuasive.6 Board itself in decisions discussed in the And indeed our Court (albeit in non- next section, disconnect adverse credibility precedential opinions), as well as the from China’s family planning policy. See, e.g., Cai v. Ashcroft, 63 Fed. Appx. 625, 2003 WL 1972020 (3d Cir. Apr. 29, 2003) 6 (remanding to the Board for For example, the Government contends reconsideration of a denial of asylum that Guo’s credibility determination is based on China’s family planning policy relevant because it implicated her where the petitioner, whom the IJ found purported “family situation.” Namely, lacked credibility, had two children at the “[t]he Immigration Judge was entirely time of filing and four at the time of her unconvinced by Guo’s description of the motion for reconsideration); cf. Lin v. INS, status of her [first] husband, Yung Chu 78 Fed. Appx. 784, 2003 WL 22454477 Li.” To be sure, we find this aspect of (2d Cir. Oct. 29, 2003) (reversing Board’s Guo’s story troublesome. Guo has not denial of a motion to reopen, based on indicated that she and her first husband adverse credibility finding, in light of a were divorced, and yet subsequent to her new translation of a sterilization certificate initial hearing she married Li Kang Chan and an affidavit by Mr. Aird). in the United States and had two children with him. But the Government has failed B . Well-founded fear of to explain how Guo’s questionable marital persecution status is relevant to her asylum claim. She Because we conclude that the Board is not seeking lawful immigration status was not entitled to rely on the IJ’s prior, based on her marriage to Li Kang Chan. unrelated adverse credibility determination And it is not disputed that Guo has two in denying Guo’s motion to reopen, we children. Neither the identity of the evaluate the alternative basis for its children’s father nor his relationship to holding. The Board “note[d] that, even if Guo has any bearing on her claim. [it] were to find her claim credible, she has Similarly, b ecause the IJ suspected not established a ‘well-founded fear’ that that Guo “is here for different reasons a reasonable person in her circumstances rather than because of religion,” the would fear persecution” within the Government argues that the adverse meaning of the statute. Our review of this credibility finding stemmed from his argument has two parts. We consider suspicion that Guo’s true motivation for whether the Board applied the correct seeking asylum was to remain in the standard in assessing whether Guo United States. This is simply speculative. presented sufficient evidence, and we Moreover, we are unaware of any case that determine whether the Board abused its holds that an applicant will be denied discretion in deeming the evidence asylum simply because building a better insufficient. life in America was a motivation for leaving her country.

6 A motion to reopen must establish Having concluded that the Board prima facie eligibility for asylum. Sevoian held Guo to an excessively rigorous v. Ashcroft, 290 F.3d 166, 173, 173 n.5 (3d standard, we might ordinarily remand for Cir. 2002); Reyes v. INS, 673 F.2d 1087, application of the proper standard. But in 1089 (9th Cir. 1982). In Sevoian, we this case, we conclude as a matter of law explained that “the prima facie case that the evidence submitted by Guo in standard for a motion to reopen . . . support of her motion to reopen constitutes requires the applicant to produce objective prima facie evidence.8 While we cannot e v i d e n c e show ing a ‘re asona ble likelihood’ that he can establish [that he is entitled to relief].” 7 Id. at 175. The Board, 8 In Sevoian, we wrote that there are however, in its denial of Guo’s motion to reconsider, stated that she must proceed to three principal grounds on end-game and “establish that there is a which . . . the Board may pattern or practice [of enforcing the family deny a motion to reopen planning policy against Chinese nationals immigration proceedings. with foreign-born children] in her First, it may hold that the homeland” (emphasis added). In this movant has failed to context, “establish” means the evidence establish a prima facie case for asylum outweighs the evidence against. for the relief sought . . . . A “reasonable likelihood” means merely Second, it may hold that the showing a realistic chance that the movant has failed to petitioner can at a later time establish that i n t ro d u c e p r e v i o u s ly asylum should be granted. The distinction u n a v a i la b l e , mate rial may at first appear to be subtle shading, evidence that justifies but without it “prima facie” (meaning at reopening . . . . Third, in first sight) would lack meaning. Guo cases in which the ultimate argues that the evidence she submitted, grant of relief being sought even if initially insufficient to establish is discretionary (asylum . . . eligibility for asylum, at least satisfied the but not withholding of prima facie evidence requirement. deportation), the Board can leap ahead over the two threshold concerns (prima 7 Prima facie scrutiny entails f a c ie c a s e a n d n e w consideration of “the evidence that e v i d e n c e /r e a s o n a b le accompanies the motion as well as explanation) and simply relevant evidence that may exist in the determine that even if they record of the prior hearing, in light of the were met, the movant would applicable statutory requirements for not be entitled to the relief.” Id. at 173. discretionary grant of relief.

7 yet say that Guo is entitled to asylum, we Second, the applicant must support are persuaded that she at least deserves a the objective reasonableness of her fear. hearing. “Determination of an objectively reasonable possibility requires ascertaining Thus in the following discussion we whether a reasonable person in the alien’s do not reach the merits of Guo’s claim. circumstances would fear persecution if But we do explain the relevant tests under returned to the country in question.” applicable case law in support of our Zubeda, 333 F.3d at 469 (citing Chang v. conclusion that Guo has shown a realistic INS, 119 F.3d 1055, 1065 (3d Cir. 1997)). chance of success on remand. While it is unclear precisely how likely Whether fear of persecution is well- persecution must be to render an founded turns, as a practical matter, on two applicant’s fear of future persecution well- inquiries. First, an applicant must show a founded, “[o]ne can certainly have a well subjective fear of persecution. She may founded fear of an event happening when satisfy this prong by a showing that her there is less than a 50% chance of the fear is genuine to her. Zubeda v. Ashcroft, occurrence taking place.” INS v. Cardoza- 333 F.3d 463, 469 (3d Cir. 2003). A Fonseca, 480 U.S. 421, 431 (1987). primary means of showing that fear is Guo’s principal evidence regarding genuine is with credible testimony. Guo’s China’s enforcement of its one-child statement that accompanied her motion to policy with respect to foreign-born reopen mentions that she “cannot go back children was an affidavit of John Aird, a to China” because, “[i]f I was sent back to former “specialist on demographic China, I will be forcibly aborted. If I was developments and population policy in . . . sent back after I delivered the second China.” The affidavit states that Chinese child, either my husband or I will be couples returning home with unauthorized sterilized by [the] Chinese government children “cannot expect to be exempt” because we violated [its] family planning from the family planning policy because policy.” This statement reveals that there is a reasonable likelihood she will give to ignore their violations credible testimony that her fear is genuine. would tend to undermine the enforcement of the rules in China. The Chin ese authorities cannot afford to Id. at 169-170 (citations and quotations let rumors get out that omitted). In this case, the Board gave no couples of childbearing age indication that it was basing its decision on can evade the one-child either the second or third ground for limit by leaving the country denying a motion to reopen. Furthermore, illegally, having we know of no reason why Guo’s motion unauthorized children in to reopen should be denied on either of f or e ign countries and those grounds.

8 r e t u rn i n g h o m e Aird criticizes the 1998 Profile’s without suffering the reliance on “anecdotal” evidence. He standard penalties. points to other sources, such as newspaper articles, which indicate that the one-child Aird thus opines that “the concerns of policy is indeed enforced against couples Chinese couples over what awaits them if with unauthorized foreign-born children. they are repatriated with children born He provides two specific examples of the abroad without official permission are application of the policy to Chinese probably in most cases well-founded.” couples returning from abroad. In The affidavit cites seven sources. addition, he emphasizes the interest of the Much of Aird’s affidavit is devoted to Chinese government in giving our State discrediting one of them, the State De pa r tme nt “ a d ecep tively mil d Department’s April 1998 Profile of impression” of China’s policies. We Asylum Claims and Country Conditions conclude that where a motion to reopen is for China (“1998 Profile”). That accompanied by substantial support of the document reports that China’s one-child character provided by the Aird affidavit, fam ily planning policy varies in the Government’s introduction of a five- implementation and that Fujian Province, year-old State Department report, without where Guo lived, is “lax” in its more, hardly undermines Guo’s prima enforcement of the policy (in some cases facie showing. Cf. Berishaj v. Ashcroft, permitting parents to apply after several 378 F.3d 314 (3d Cir. 2004). years to conceive a second child if their Moreover, we agree with Guo that first child is female). In fact, the 1998 the 1998 Profile, to the extent it is reliable, Profile suggests that enforcement of the actually may buttress her prima facie case. policy is applied so “loosely” in Fujian The 1998 Profile states that the central Province—exceptions to the one-child Chinese government policy “are becoming the norm” in rural areas—that the province has been does not authorize physical criticized in the official press. More force to make people submit importantly, the 1998 Profile discusses the to abortion or sterilization, application of the one-child policy to but there are reports that this couples with foreign-born children and continues to occur in some c o n c l u d e s , b a s e d o n “ a n e c dota l r u r a l a r e a s a s lo c a l information,” that “the relevant authorities population authorities strive do not always handle such situations to meet population targets. strictly. At least some couples that have Chinese officials children in the United States beyond the acknowledge privately that nominal limits and then return to China f o r c e d a b o r t io n s a n d are, at worst, given modest fines.” sterilizations still occur in areas where family planning

9 personnel may be subsequent to initial asylum proceedings. uneducated and ill- See, e.g., In re X-G-W-, 22 I. & N. Dec. 71 trained. (BIA 1998) (reopening proceedings based on Congress’s 1996 amendment of the Moreover, the Board’s analysis failed to statutory term “refugee” to include a account for differences in enforcement person persecuted through coercive based on an immigrant’s legal status in the population control measures), superseded United States. The 1998 Profile references on other grounds by In re G-C-L-, 23 I. & anecdotal evidence to the effect that N. Dec. 359 (BIA 2002); In re Lu, No. A “possession or lack of possession of U.S. 70 100 687 (BIA March 10, 2000) (Aird permanent resident status is the key affidavit “establishe[s] prima facie criterion for determining whether couples eligibility for relief”); In re Qing Zhang, are subject to family planning restrictions.” No. A 73 148 366 (BIA Nov. 15, 2001) It is true, as the Government (granting motion to reopen based on contends, that the Aird affidavit does not statement by the applicant); In re Weng, demonstrate that any “specific proportion No. A75 990 618 (BIA July 18, 2003) or percentage” of couples returning to (granting motion to reopen under similar China will be subject to its family- circumstances); In re Zhang and Huang, planning policy, nor does Aird contest that No. A77 551 826 (BIA July 16, 2003) variations occur in enforcement. But that (sustaining petitioner’s appeal of IJ’s is not Guo’s burden. While some couples de nia l of asylum under simila r in Guo’s situation might avoid serious circumstances). repercussions upon returning to China, the These decisions overwhelmingly conflicting evidence suggests at least a deem allegations like Guo’s sufficient to reasonable likelihood that Guo will establish prima facie eligibility for asylum. establish a reasonable fear of persecution. And while the Government argues that What makes the Board’s decision Guo’s case is distinguishable “given the particularly suspect in this case is its paucity of facts alleged in her motion to failure to comport with its own prior reopen,” applicants in many prior cases did decisions, many of which reach the not cite more specific evidence than did opposite conclusions under similar Guo. Furthermore, some submitted less circumstances. “[A]pplication of agency than Guo. We thus conclude that the standards in a plainly inconsistent manner Board erred in finding that Guo presented across similar situations evinces such a insufficient evidence to establish her lack of rationality as to be arbitrary and prima facie case. capricious.” Zhao v. U.S. Dep’t of Justice, Conclusion 265 F.3d 83, 95 (2d Cir. 2001). The Board on many occasions has granted The Board’s cursory rejection of motions to reopen based on children born Guo’s motion to reopen was improper. It

10 failed to explain how the IJ’s adverse credibility finding bears any relation to Guo’s claim, based on physician-verified evidence of pregnancy and a third-party affidavit, that she feared persecution relating to China’s family planning policy. Moreover, it seems likely that the Board applied the wrong standard in evaluating the motion to reopen. Guo made a prima facie case: she presented facts showing a reasonable likelihood that she would prevail on the merits, particularly in light of prior Board decisions granting relief under similar circumstances. We thus grant Guo’s petition for review and remand for further proceedings consistent with this opinion.