Jin Yun Xiao v. Attorney General of the United States

230 F. App'x 139
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 25, 2007
DocketNo. 05-2170
StatusPublished

This text of 230 F. App'x 139 (Jin Yun Xiao 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.

Bluebook
Jin Yun Xiao v. Attorney General of the United States, 230 F. App'x 139 (3d Cir. 2007).

Opinion

OPINION OF THE COURT

AMBRO, Circuit Judge.

Jin Yun Xiao petitions for our review of the order of the Board of Immigration Appeals (“BIA” or “Board”) denying her motion to remand and affirming the denial by an immigration judge (“IJ”) of her claims for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT” or the “Convention”).1 We deny her petition as to the CAT claim, but remand her claims for asylum and withholding of removal.

I. Factual Background

Jin Yun Xiao is a citizen of the People’s Republic of China. She is married to another asylum applicant, Jian Feng Chen, with whom she has two children, both born in the United States.2 In support of her applications for relief from removal, Xiao testified as follows.

Pursuant to China’s population and family planning laws, Xiao and other women in her neighborhood in China were required to submit to urine tests and gynecological exams to detect pregnancy every three months beginning at the age of 18. On one occasion Xiao was fined when she went out of town and was unable to return in time for her examination. Xiao also testified that her husband’s aunt had two daughters and, as a result, was forced to undergo sterilization.3 In addition, one of her cousins, who had one son, was forced to hide to have additional children, and her house was “dismantled” by the government.

Xiao testified that, as a result of the frequent, invasive gynecological examinations (allegedly rendered particularly uncomfortable because Xiao was a young, unmarried woman and the doctors were [141]*141men), she became depressed. A concerned friend took her to an underground Protestant church; Xiao attended once a week and began to lead a Bible study-group in her home. She was baptized in December, 1994.

In 1995, Xiao’s future husband, Chen, and several other church members were arrested while at church. Chen was detained, interrogated about his religious activities, and beaten over the course of three days. He left China two months later due to the persecution he feared from the government. After the 1995 incident, church members were forced to change meeting times and hold services at night. The record contains a statement from Xiao’s mother-in-law that she was at the disrupted church meeting, her son was detained and beaten for three days, and that she was detained for seven days on the charge of causing other people to violate the public order.

Almost six years later, in April 2001, Xiao was arrested for her religious practices. Police came to her home when she was leading a Bible study group, threatened and cursed her, and accused her of holding an illegal gathering. She was arrested and detained. In detention she was slapped, harassed, and deprived of food; she also testified that the police tried to persuade her to abandon her religion. The record contains a statement from Xiao’s church friend, who stated she was at the disrupted Bible study meeting, that Xiao and she were brought to the police station, and that she was beaten and detained for one day. Xiao testified that after her arrest she was required to report to the police once a month to disclose her daily activities. She was told she would be arrested if she did not report.

Xiao left China in June 2001, allegedly because she feared the government would continue to persecute her. In the United States she attends Grace Church in the Chinatown area of New York City. The Church’s doctrine, which Xiao claims she believes and abides by, maintains that abortion and birth control are wrong. Her religion prohibits her and her husband from using any birth control and they have two children, a three year-old and an infant. They would like to have more children, but claim this would be impossible if they return to China because of the country’s population control laws. Xiao fears forced sterilization or forced abortion in the event she becomes pregnant again. She also fears reprisal from the Chinese government for having left the country without proper documentation and having had two children without obtaining a birth permit for either one. Xiao testified also that a family member told her that police had come to her home in China looking for her after she left the country.

II. Procedural Background

Xiao entered the United States without valid documentation. The Immigration and Naturalization Service (“INS”)4 subsequently issued a Notice to Appear, alleging that Xiao was inadmissible. Such a person is removable under 8 U.S.C. § 1227(a)(1). Xiao conceded her removability,5 but filed an application for asylum [142]*142under 8 U.S.C. § 1158 and withholding of removal under 8 U.S.C. § 1231(b)(3), and sought protection under the CAT.

A. The IJ’s decision

IJ Eugene Pugliese denied each of Xiao’s claims on the ground that she was not credible (and even assuming credibility, the Chinese government’s treatment of her did not rise to the level of persecution).

1. Credibility

The IJ’s incredibility determination was based on the following four conclusions. First, it was “not believable” that Xiao could have attended church on a weekly basis for eight years with only two “busts” by the “incredibly competent” Chinese government. Xiao’s contention that church members avoided detection by changing meeting times and locations was an “implausible, not very realistic, and also unsatisfactory explanation.”

Second, the IJ found that Xiao’s demeanor was that of someone who “does not really want to be here, [and] does not want to answer questions,” because at no point did she make eye contact with the IJ. The IJ stated that there are no cultural reasons that would suggest Chinese people discussing abortion cases would be any less willing to make eye contact than anyone else, so he took her reticence as evidence that she was “ashamed” of making false statements.

Third, the IJ concluded that Xiao’s “knowledge” of the Bible did not mean she actually has any religious beliefs, as one can be knowledgeable about something without believing in it. (The IJ noted that Xiao “testified at some length with regard to her knowledge of the Bible,” but “the fact that she knows something about Christianity is no more reason to necessarily assume that she is a Christian than if someone knows something about flying saucers to assume that they [sic] believe in flying saucers.”)

Finally, Xiao’s husband did not appear in court despite having been urged by the IJ at the master calendar hearing to attend. The IJ interpreted his absence to mean that Xiao and her husband feared being separated and having their testimony compared and found to be inconsistent.

2. Persecution

The IJ’s conclusion that Xiao’s treatment did not rise to the level of persecution was based on the following determinations. First, he stated that there was no evidence of a pattern or practice of persecution of Christians by the Chinese government.

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467 U.S. 407 (Supreme Court, 1984)
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Bluebook (online)
230 F. App'x 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jin-yun-xiao-v-attorney-general-of-the-united-states-ca3-2007.