Yun Jun Cao v. Attorney General of the United States of America

407 F.3d 146, 2005 U.S. App. LEXIS 8318, 2005 WL 1117982
CourtCourt of Appeals for the Third Circuit
DecidedMay 12, 2005
Docket03-4256
StatusPublished
Cited by81 cases

This text of 407 F.3d 146 (Yun Jun Cao v. Attorney General of the United States of America) 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
Yun Jun Cao v. Attorney General of the United States of America, 407 F.3d 146, 2005 U.S. App. LEXIS 8318, 2005 WL 1117982 (3d Cir. 2005).

Opinion

OPINION OP THE COURT

BECKER, Circuit Judge.

Yun Jun Cao, a Chinese national, petitions for review of the denial by the Board *149 of Immigration Appeals (BIA) of her application for asylum and withholding of removal and for protection under the Convention Against Torture (CAT). Cao claims that, while working as a pediatrician in a Chinese hospital, she discovered that the hospital was committing infanticide in an attempt to comply with China’s population control policy. After her letter to a Hong Kong news reporter exposing this practice was intercepted by the Chinese government, she says that she was detained for three months, interrogated, and physically abused. Upon release from prison, Cao fled China and arrived in the United States on a visitor’s visa.

Cao’s allegations that she was persecuted for exposing and criticizing the practice of infanticide, if credible, would be sufficient to establish a valid asylum claim under the amended 8 U.S.C. § 1101(a)(42)(2005). The Immigration Judge (IJ), however, denied Cao’s claim for relief on the basis of an adverse credibility determination. After declaring that Cao’s demeanor as a witness was “quite perfect,” the IJ discredited virtually every aspect of Cao’s testimony. With respect to the infanticide issue, the IJ proceeded on the basis of the notion that there is no real distinction between infanticide and forced abortion, which led her to be incredulous that Cao could be so offended by infanticide when she was already aware of the practice of forced abortion. The IJ made no attempt to anchor this aspect of her credibility finding to the record. Additionally, the IJ found a lack of credibility with respect to a number of other aspects of Cao’s testimony, each of which turn out to be either based on speculation or without any support in the record. The IJ thus improperly discredited Cao’s testimony in a number of material respects.

The BIA summarily affirmed the IJ’s decision without opinion. Thus, we review the IJ’s decision alone. Because the IJ’s determination does not meet the substantial evidence standard under which the decision must be reviewed, see infra Part II, we will grant Cao’s petition for review and remand to the BIA for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Cao attended the Gaungxi Province College of Traditional Chinese Medicine and then practiced as a pediatrician at the Second Affiliated Hospital of Guangxi Province in the city of Nanning. She is married and has a daughter, and both her husband and daughter remain in Nanning at this time. The following is Cao’s testimony about the events beginning in 1999.

In that year, after fifteen years of medical practice, Cao discovered that her hospital was killing live born babies who were born in violation of China’s population control policy, described in the margin. 1 Although she had been aware of China’s family planning policy and had previously known that officials would at times force women to have late-term abortions in which the fetus was terminated before exiting the birth canal, Cao did not know *150 that the hospital was committing infanticide until 1999.

Cao realized that the hospital was committing infanticide only after her Pediatrics department moved to the same floor as the Obstetrics/Gynecology (Ob/Gyn) department due to hospital renovations. One day, she noticed a woman crying in the Obstetrics ward and was told that the woman’s child had died suddenly after she had given birth. Cao’s suspicions were raised because the obstetricians had not consulted with the Pediatrics department. An Ob/Gyn nurse told Cao, “never mind about that, that was business for family planning policy.”

After this incident, Cao began to notice other women crying, each of whom claimed her baby had died shortly after birth. She finally confronted Lao Zi Juan, a friend from medical school, who worked in the Ob/Gyn department, about the infant deaths. Lao Zi told her that the mothers did not have family-planning permits, and so, under the hospital rules, nurses would inject newborn babies with alcohol to cause death. Cao claims that she was shocked to learn that the hospital was killing children born alive to comply with the population control policy.

According to Cao, a few months later, at a party in a friend’s home, she encountered Suen Yut, a reporter for the Hong Kong magazine, Cheng Ming Monthly. In the course of their conversation, Suen Yut asked Cao if she had heard that infanticide took place at Chinese hospitals. Cao told him what she had witnessed at her hospital. Suen Yut asked Cao to write a detailed account about the practice of infanticide and send it to him so that he could write an article exposing the practice. While hesitant at first because she was worried about losing her job, Cao eventually agreed to send the information to Suen Yut after he assured her that the article could be published anonymously.

Because she was concerned about using the mail for sending such sensitive information, Cao first mailed Suen Yut a test letter, containing nothing controversial. This letter reached him without being intercepted. She then mailed a second letter detailing what she had observed about the practice of infanticide. This letter was sent by registered mail, which required her to give her name. The letter, however, was intercepted by the Chinese authorities and traced back to Cao.

As a result, Cao was arrested at her home in Nanning on April 25, 2000. She says that the authorities then gave her husband a notice of detention, which she submitted in evidence at the proceeding before the IJ. She claims that, after her arrest, she was detained, interrogated, and beaten. The officers presented her with the letter to Suen Yut and she eventually confessed that she had written it. She testified that the interrogations included beatings and electric shocks, and that she continues to have recurring pain in her shoulder, neck, and fingers as a result. At her bearing before the IJ, Cao testified that she thought her interrogators were public security officials, although they were not always in uniform. In her asylum application, Cao had said she was tortured by fellow inmates, at the officer’s instigation, but she did not mention this fact in her oral testimony.

Cao was not charged with any crime, but the security officers told her that she could be charged with sedition and sentenced to ten years imprisonment. Cao testified that she was detained for three months and was conditionally released on July 25, 2000. She says that the officials released her so they could use her to lure Suen Yut back to mainland China. On release, she had to post bail and report to public secu *151 rity every week, but she believes that she remained under surveillance. On July 26, 2000, she received notice that her employment with the hospital had been terminated.

After her release, Cao managed to send word to Suen Yut through a friend who was visiting Hong Kong, warning him not to contact her or to come to Nanning. The Mend mailed the warning letter from Hong Kong.

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407 F.3d 146, 2005 U.S. App. LEXIS 8318, 2005 WL 1117982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yun-jun-cao-v-attorney-general-of-the-united-states-of-america-ca3-2005.