Jin Li Feng v. Attorney General of the United States

165 F. App'x 982
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 9, 2006
DocketNo. 04-3943
StatusPublished

This text of 165 F. App'x 982 (Jin Li Feng v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jin Li Feng v. Attorney General of the United States, 165 F. App'x 982 (3d Cir. 2006).

Opinion

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Petitioner Jin Li Feng, a native and citizen of China, seeks review of the August 27, 2003, Order of the Board of Immigration Appeals (“BIA”) that dismissed her appeal from the Immigration Judge’s (“IJ”) denial of her applications for asylum and withholding of removal. We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a)(1), and for the reasons set forth below, we will grant the petition.

I.

As we write solely for the benefit of the parties, we will set forth only those facts necessary to our analysis. On April 19, [983]*9831998, Feng and her two children attempted to enter the United States at New York and were denied admission and placed in custody. Feng was then charged with removability under 8 U.S.C. § 1182(a) (6) (C) (i) (attempting to obtain entry by means of fraud or misrepresenting a material fact) and § 1182(a)(7)(A)(i)(I) (attempting to obtain entry without valid documentation). Feng denied the fraud allegation but conceded removability under § 1182(a) (7) (A) (i) (I) and filed an application for asylum relief.

At a merits hearing held on June 9, 1999, Feng testified that after the birth of her second child in 1981, Chinese officials came to her home and took her to a hospital where she had an intrauterine device (“IUD”) inserted. Feng testified that the IUD remained in place for nine years.

Feng stated that Chinese officials subsequently tightened enforcement of the nation’s one-birth policy, and came to her home on February 28, 1990, at which time they threatened to destroy her home and took her to a hospital where she underwent an involuntary tubal ligation.1 Feng did not present any documentary evidence to establish whether the tubal ligation was voluntary or involuntary. Although Feng’s mother-in-law (but not her husband) was at home when these officials came to take her to the hospital, the mother-in-law did not provide any affidavit because Feng did not ask her to do so. Feng claimed that she continued to suffer dizziness after the tubal ligation, although the IJ did not find credible Feng’s testimony that she still suffered from dizziness related to the 1990 tubal ligation at the time of the hearing in 1999.

Feng also testified that on March 7, 1990, she was fined 5000 RMB by the Chinese government for violating the nation’s one-birth policy. When asked to explain why the Chinese government had waited approximately eight years after her second child was born to fine her, Feng testified that in 1981, the “birth control official is not that tight. They’re not too hurry.”

In 1991, Feng’s husband paid a smuggler $80,000 to bring him to the United States, after which he sent Feng money. Feng testified that in 1998, she borrowed $90,000 from friends and family to pay a smuggler to bring her and her children to the United States. Feng testified that she left China because she had not received any word on the status of her husband’s asylum application and because she feared that her children would face the same treatment in China as she had.

Feng’s husband also testified before the IJ in support of her application, and he stated that he left China because of his wife’s persecution to seek asylum in the United States. In his asylum application, Feng’s husband had stated that his family had been fined 3000 RMB for violating China’s birth policy, as opposed to the 5000 RMB fine to which Feng had testified. He also claimed that because the family was unable to pay this fine, “the local officials moved away furniture and demolished our house. Homeless, we had to shelter ourselves in our relative’s home.”

Feng’s husband’s oral testimony differed from his asylum application. First, the husband testified that his family was fined 5000 RMB for its violation of China’s one-birth policy, not 3000 RMB. The husband also testified that although Chinese officials harassed his family at their home [984]*984before he paid the fine, the officials ceased doing so after he paid the fine and did not destroy the family’s home, which contradicted his asylum application. The husband attributed these discrepancies to the fact that the agency that assisted him with filling out his asylum application did not show him the completed application.

At the close of the hearing, the IJ denied Feng’s applications for asylum and withholding of removal. The IJ first noted the inconsistencies between Feng’s husband’s testimony and his asylum application. First, the IJ found that the differences between the husband’s asylum application (family’s furniture taken and their home destroyed, leaving family homeless) and his testimony (house not destroyed and family not left homeless) were purposeful “slight [sic] of hand” that rendered him incredible.

The IJ then noted that the crux of the case was whether Feng’s sterilization was voluntary or involuntary, and that the husband’s testimony that the sterilization was involuntary was consistent with Feng’s testimony but was nevertheless unreliable because of the other inconsistences between his oral testimony and his asylum application. Second, while the IJ believed that Feng had been sterilized, the IJ found it illogical that the Chinese government would fine and sterilize her nine years after the birth of her second child despite her faithful use of the IUD during that time:

“It would seem that the [Chinese] government would have better use of its time and resources than to sterilize a woman who had been faithfully using an IUD for a nine year period ... That doesn’t make a great deal of public policy sense ... [T]o be provided with a nonsensical explanation or rationale for government activity certainly is not a way to enhance one’s case in putting forth an asylum matter and it can only serve in the Court’s view to undermine the case.”

The IJ also questioned why Feng would wait until 1998 to leave China, eight years after the alleged 1990 sterilization. The IJ noted that Feng’s husband had left China in 1991 to seek asylum and concluded that by 1998, Feng had simply grown tired of waiting for her husband to obtain asylum and left China to seek a better life for herself and her children, not to flee persecution.

In an Order dated August 27, 2003, the BIA dismissed Feng’s appeal from the IJ’s decision. In that Order, the BIA concurred with the IJ that Feng was not credible, noting that Feng’s claim that her family was fined 5000 RMB for violating the one-birth policy was inconsistent with the 3000 RMB fine described in her husband’s asylum application. The BIA also found that this inconsistency cast doubt on Feng’s allegation that she had been forcibly sterilized, observing that her husband’s testimony that the sterilization was forcible was cast into doubt by the inconsistencies between his testimony and asylum application. The BIA also found “no adequate explanation for why [Feng] would have been forcibly sterilized almost 9 years after the birth of her youngest child, and when she had been fully complying with using an IUD.”

II.

Where the BIA substantially uses the IJ’s findings, but also makes findings of its own, we review both decisions. Xie v. Ashcroft,

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