Zhang v. Atty Gen USA ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-21-2005
Zhang v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-2111
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2111
XIU LING ZHANG,
Petitioner
v.
ALBERTO GONZALES 1 , ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
ON PETITION FOR REVIEW OF ORDERS OF THE
BOARD OF IMMIGRATION APPEALS
(No. A77-293-449)
Argued January 18, 2005
Before: ALITO, McKEE, and SMITH, Circuit Judges
(Opinion filed: April 21, 2005)
1
Substituted pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
Joshua Bardavid (argued)
Theodore N. Cox
Law Office of Theodore N. Cox
401 Broadway, Suite 701
New York, NY 10013
Attorney for Petitioner
Lyle D. Jentzer
Peter D. Keisler
Terri J. Scadron
Hillel R. Smith (argued)
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
ALITO, Circuit Judge:
Petitioner Xiu Ling Zhang, a native and citizen of the
People’s Republic of China, petitions for review of an order by the
Board of Immigration Appeals (“BIA”) denying asylum and
withholding of removal.2 She argues, among other things, that the
Immigration Judge (“IJ”) failed to reconcile his decision with the
documentary evidence she produced. We grant Zhang’s petition
for review, vacate the order of the BIA, and remand to the BIA for
further proceedings consistent with this Court’s opinion in Liu v.
Ashcroft, 372 F.3d 529 (3d Cir. 2004).
2
Zhang’s counsel admitted at oral argument that he did not
preserve for appeal a claim under the United Nations Convention
Against Torture.
2
I.
In November 1999, Zhang arrived in the United States
without a valid immigrant visa. Joint Appendix (“App.”) at 190.
An asylum officer found that she had a credible fear of persecution
if repatriated to the People’s Republic of China and issued her a
Notice to Appear before an IJ so that she could apply for asylum.
Id. In March 2000, Zhang filed an application for asylum,
withholding of removal, and relief under Article III of the United
Nations Convention Against Torture.3 She alleged that Chinese
family planning authorities had, among other things, subjected her
to a forced abortion and demanded that she or her husband be
sterilized to prevent any further violations of the country’s one-
child policy.
At a preliminary hearing on July 13, 2000, Zhang’s lawyer
gave the IJ and opposing counsel a number of documents to
corroborate these claims. See id. at 50-51. The materials included
birth certificates for Zhang, her husband, and her three children;
Zhang’s marriage certificate; a receipt indicating that Zhang was
fined 3000 Yuan 4 for removing an intrauterine device (“IUD”)
without permission and another receipt showing that Zhang was
fined 5000 Yuan for “attempt to give birth secretly.” Id. at 103-04.
The latter receipt was dated March 26, 1996. App. at 104.
Zhang also submitted two other potentially important
documents. The first was a Birth Control Surgery Certificate from
Changle City stating that Zhang “was conducted with a Abortion
Operation and IUD installation on March 15[, 1996] at our Clinic.”
3
The United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 1465 U.N.T.S. 85, implemented in the United States by the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, § 2242, 112 Stat. 2681-761 (codified at 8 U.S.C. § 1231).
4
The Yuan, also known as “RMB,” is worth approximately
12 cents. There are roughly 8.2 Yuan per dollar, so 3000 Yuan is
about $366, and 5000 Yuan is about $608.
3
Ohio App. at 102. This document is affixed with a seal. The second is
a notice addressed to Zhang and her husband from the “Birth
Control Office of Shouzhan Town Changle City.” As translated,
this notice states:
According to the result of our investigation, you
gave two over birth boys in somewhere else, which
violated the nation’s family planning policies
severely. Therefore, according to the penalty
regulation of the family planning policies, you must
pay a fine of thirty-six thousand Yuan within thirty
days. [I]n the meantime, one of you must go to the
local hospital for the sterilization operation.
Otherwise, [we] will be force[d] to complete the
sterilization operation, and punish severely as well.
pp. at 111-12 (emphasis added). This document is also affixed
with a seal.
After Zhang’s counsel furnished these documents during the
July 13 preliminary hearing, the government’s lawyer asked if
Zhang’s counsel intended to comply with 8 C.F.R. § 287.6 5 and
“have any documents authenticated by the U.S. consulate in
China.” App. at 51. Zhang’s counsel responded that he had no
intention to do so at that point. The IJ then interjected:
5
This regulation states, in pertinent part:
In any proceeding under this chapter, an official
record or entry therein, when admissible for any
purpose, shall be evidenced by an official
publication thereof, or by a copy attested by an
officer so authorized. . . . The attested copy, with the
additional foreign certificates if any, must be
certified by an officer in the Foreign Service of the
United States, stationed in the foreign country where
the record is kept.
8 C.F.R. §§ 287.6(b)(1)-(2).
4
Bear with me a second. That’s one of the more
troubling regulations because it’s a regulation that
imposes a requirement upon people to get things
authenticated. The reality, I think, is that it’s almost
impossible to get that actually done. But there is a
requirement. I’ll make a decision on that at the time
of the hearing. I’m not going to make a decision
now.
App. at 52.
The IJ, however, never revisited the question whether the
documents had been adequately authenticated. The IJ referred to
the documents at the outset of his oral opinion, stating: “The Court
also has Exhibit 4 which consists of some documents submitted by
the respondent to corroborate her claim.” See App. at 10. But
what the IJ meant when he said that he “ha[d]” the documents is
unclear. It is possible that he meant that the documents were part
of the official record that was before him, but it is also conceivable
that he merely meant that the documents had been submitted and
not that he regarded them as part of the record.
II.
At her merits hearing on October 13, 2000, Zhang testified
that Chinese family planning officials subjected her to a forced
abortion, fitted her with an IUD on three separate occasions, and
demanded that she or her husband be sterilized to prevent any
future pregnancies. The IJ denied Zhang’s petition based entirely
on an adverse credibility determination. See App. at 95 (“Ma’am,
I didn’t believe any of your testimony.”). He explained that
Zhang’s story appeared “scripted” and “unbelievable” because
neither the overall story nor certain pieces of it seemed plausible.
App. at 12. After mentioning several perceived inconsistencies in
Zhang’s testimony, the IJ observed that “there is nothing really in
the State Department’s Profile that would lead us to believe that
forced abortions are anything other than a very rare exception.”
App. at 17. He continued:
There is evidence that [forced abortions] have
5
occurred but there is also evidence that meteors have
landed in the United States. I mean the fact that
there’s evidence that something happened to
someone else doesn’t mean that it happened to
[Zhang]. There has to be a background of country
conditions that form a context and make the story
plausible. When someone is going to come in and
say th[ey] had a forcible abortion it’s not enough to
say, “Well, I guess that’s possible.” I’m going to
want some proof that it’s more than just possible,
that there is a substantial chance that this thing, in
fact, happened.
App. at 9 (emphasis added). The IJ concluded that “we basically
have a long shot happening here, which is a forced abortion, and
we also have very poor testimony. So when you combine the two
things together you have no way of succeeding in a case like this.”
App. at 17-18.
The IJ acknowledged that Zhang’s “testimony was quite
consistent with her written asylum application,” but he never
explained why the documents that she submitted did not bolster her
credibility. App. at 12. In fact, it is impossible to tell precisely
what role – if any – the documents played in the IJ’s analysis.
The IJ obviously did not take the documents at face value.
If authentic and accurate, they powerfully corroborate Zhang’s
claims.6 The abortion certificate would show that she had an
6
To be eligible for asylum, Zhang must show that she is a
“refugee,” which means that she is unwilling or unable to return to
China “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). “[A] person who has been forced to abort a
pregnancy or to undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a procedure or for
other resistance to a coercive population control program, shall be
deemed to have been persecuted on account of political opinion.”
6
abortion on or about March 15, 1996. Viewed in conjunction with
this certificate, the March 26, 1996, notice fining Zhang for an
“attempt to give birth secretly” would give rise to a strong
inference that the abortion was involuntary. And of course if
Zhang was forced to undergo an abortion, that would mean that she
was subjected to past persecution, and she would be entitled to the
benefit of a rebuttable presumption that she has a well-founded fear
of further persecution if removed to China. See 8 U.S.C. §§
1101(a)(42)(A) and (B); 8 C.F.R. § 208.16(b). Similarly, the
document ordering Zhang or her husband to submit to a
sterilization procedure on pain of severe punishment would
corroborate Zhang’s testimony that the Chinese authorities
threatened her with forced sterilization and would bolster her claim
that she has a well-founded fear that she would again be threatened
with forced sterilization if she were sent back to her native country.
Because of the significance that the documents in question
would have if they are authentic and accurate, it is obvious that the
IJ must have given them reduced weight or no weight at all. Cf.
Liu v. Ashcroft, 372 F.3d 529, 532 n.3 (3d Cir. 2004) (discussing
an IJ’s evidentiary rulings on two abortion certificates that “are
ambiguous as to whether he intended to give the certificates ‘little
weight’ or ‘no weight.’”). The IJ never explained which of these
options he chose or why he did so.
Id. § 1101(a)(42)(B); Chen v. Ashcroft, 376 F.3d 215, 222-23 (3d
Cir. 2004). “The standard for withholding of removal is higher
than, albeit similar to, the standard for asylum.” Lukwago v.
Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003) (citation omitted). The
applicant must show that future persecution based on political
opinion or other factors is “more likely than not” to occur. 8
C.F.R. § 208.16(b). “A showing of past persecution gives rise to
a rebuttable presumption of a well-founded fear of future
persecution.” See Chen v. Ashcroft, 381 F.3d 221, 224 (3d Cir.
2004) (citations omitted); 8 C.F.R. § 1208.13(b)(1); In re C-Y-Z-,
21 I & N Dec. 915, 918, 1997 WL 353222 (B.I.A. 1997).
7
On appeal, the BIA issued a one-paragraph affirmance. It
adopted the IJ’s decision and added a single sentence of its own.
“In light of the questions raised by the respondent’s credibility, the
authenticity of the supporting documents that she presented [], and
the respondent’s failure to adequately explain the lack of
corroboration [], the respondent did not meet her burden of proof
to establish her eligibility for the reliefs requested.” App. at 2.
III.
This Court must review the administrative record on which
the final removal order is based. See Gao v. Ashcroft, 299 F.3d
266, 271 (3d Cir. 2002). The “final order” to be reviewed is
usually that of the Board of Immigration Appeals, but when the
BIA simply states “that it affirms the IJ’s decision for the reasons
set forth in that decision, . . . the IJ’s opinion effectively becomes
the BIA’s, and, accordingly, a court must review the IJ’s decision.”
Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001) (quoting
Chen v. INS, 87 F.3d 5, 7 (1 st Cir. 1996) (internal citations
omitted)). Here, to the extent that the BIA adopted the IJ’s
opinion, we treat that opinion as the opinion of the Board.7 See
Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir. 2003) (reviewing
“both the decision of the IJ and the BIA” because the BIA adopted
some parts of the IJ’s opinion); Abdulai, 239 F.3d at 549 n.2
(“When the BIA defers to an IJ, a reviewing court must, as a matter
of logic, review the IJ’s decision to assess whether the BIA’s
decision to defer was appropriate.”).
Ordinarily, we will affirm the IJ’s decision if it is supported
by reasonable, substantial, and probative evidence on the record
considered as a whole. See Balasubramanrim v. INS, 143 F.3d
157, 161 (3d Cir. 1998). This deferential standard dictates that the
IJ’s findings “must be upheld unless the evidence not only supports
a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242
F.3d 477, 483 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502
7
Therefore, all references below to the IJ’s opinion should
be understood as “the IJ’s opinion insofar as it was adopted or
relied upon by the BIA.”
8
U.S. 478, 481 & n.1 (1992)). However, “remand is appropriate
where . . . we have made a legal determination (e.g., regarding the
admissibility of evidence) that fundamentally upsets the balancing
of facts and evidence upon which an agency’s decision is based.”
Liu v. Ashcroft, 372 F.3d 529, 534 (3d Cir. 2004). See also Leia
v. Ashcroft, 393 F.3d 427, 434-35 (3d Cir. 2005); Diallo v. INS,
232 F.3d 279, 287 (2d Cir. 2000). In Liu, “the improper rejection
of unauthenticated abortion certificates by the IJ infected the
adverse credibility determination,” justifying a remand. Chen v.
Ashcroft, 376 F.3d 215, 226 (3d Cir. 2004).
IV.
As previously noted, it is possible that the IJ in this case
refused to admit the documents in question and thus gave them no
weight. It is also possible that the IJ admitted the documents but
found that they were entitled to less weight than they would appear
to merit if accepted at face value. Without further explanation,
however, neither approach can be sustained.
A.
We cannot sustain the exclusion of the documents without
an explanation of the basis for the ruling. The IJ may have
excluded the documents for failure to comply with 8 C.F.R. §
287.6, which states that “an official record . . . shall be evidenced
by an official publication thereof, or by a copy attested by an
officer so authorized. . . .” Id. (emphasis added). This regulation
adds that “[t]he attested copy, with the additional foreign
certificates if any, must be certified by an officer in the Foreign
Service of the United States, stationed in the foreign country where
the record is kept.” Id. Our court, however, recently held that “8
C.F.R. § 287.6 is not an absolute rule of exclusion, and is not the
exclusive means of authenticating records before an immigration
judge.” Liu, 372 F.3d at 533. See also Leia v. Ashcroft, 393 F.3d
427, 434-35 (3d Cir. 2005) (remanding for consideration under Liu
where an IJ found that § 287.6 was the exclusive means to
9
authenticate documents).8 Accordingly, exclusion of the
documents on this ground would be legal error. Because of the real
possibility that the IJ excluded the documents in question pursuant
to this regulation, we must vacate the order of the BIA and remand
for clarification on this point.
It is also possible, as noted, that the IJ did not rely on 8
C.F.R. § 287.6 but found for some other reason or reasons that the
documents were not entitled to any appreciable weight. But
because the IJ’s opinion does not disclose his reasoning on this
matter, it is impossible for us to discharge our responsibilty to
determine whether, as Zhang contends, the evidence in the record
compels the conclusion that she faces a probability of or at least
has a well-founded fear of persecution if she is removed to the
People’s Republic. As noted, the documents at issue, if accepted
as genuine and accurate, strongly corroborate Zhang’s testimony.
Thus, unless they were excluded for some undisclosed procedural
reason (the propriety of which we obviously cannot review) or
unless they were properly deemed to be unreliable or
untrustworthy, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405-06
(3d Cir. 2003), they could compel findings quite different from
those that the IJ reached.
B.
Several possible grounds for the IJ’s treatment of the
documents come to mind. One possibility is that the IJ thought that
the cross-examination of Zhang provided a basis for doubting the
documents’ authenticity. The government attorney asked Zhang
why some of the Chinese “notarial certificates” that she had
8
Moreover, even if compliance with 8 C.F.R. § 287.6 were
mandatory, some explanation for the exclusion of the documents
would still be needed because at least some of the documents bear
seals. Cf. Georgis v. Ashcroft, 328 F.3d 962, 966 n.3 (7 th Cir.
2003) (faulting an IJ for not addressing whether a submitted copy
of a letter is “not already certified” pursuant to § 287.6 because it
“appears to be imprinted with an official seal of some sort”).
10
submitted were dated February 25, 2000, which was after she
entered the United States. See App. at 89-92. The hearing
transcript unhelpfully reports Zhang’s answer as: “My
(indiscernible) just helped me to obtain it.” Id. at 90. The
government’s lawyer apparently believed that Zhang said that her
husband had helped her obtain the notarial certificates, and the
lawyer thus began questioning Zhang about her husband, who was
in hiding 600 kilometers from Fujian province. When the
government lawyer eventually returned to his original question
about who helped Zhang acquire the certificates, the transcript
records Zhang’s answer as follows: “That’s my husband did.” Id.
at 91. Shortly thereafter, when asked again, Zhang replied, “No.
It’s not my husband himself. I said my husband’s dad got them. .
. . I never say my husband. I just keep on saying that’s my dad –
my husband’s dad.” Id. at 92.
This exchange, as translated from Foo Chow to English, is
muddled at best. It is difficult to say that this supposed discrepancy
in testimony is enough in itself to impugn the authenticity of the
birth certificates in the record. Moreover, even if it did, the
abortion certificate and the documents relating to the fine for
removal of the IUD and the threat of involuntary sterilization were
never directly discredited.
Another possibility, which was discussed at oral argument,
is that the IJ relied on a State Department Report, dated April 14,
1998, noting that documentation from certain parts of China,
including “documents that purportedly verify . . . birth control
measures,” “is subject to widespread fabrication and fraud.” App.
at 166. According to this Report, in the Fujian province in
particular, where Zhang lived, “no reliable documents existed to
prove relationships.” Id. at 166-67. Indeed, the Report notes,
when the Consulate General in the region requested in 1993 that
officials in Fujian investigate suspected fake documents, 66 of the
109 that were investigated “were determined to be incorrect or
fake.” App. at 167.
Persuasive as the report might seem, we have previously
counseled wariness regarding “wholesale reliance on the
Department of State’s country reports.” Chen v. Ashcroft, 376
11
F.3d 215, 225-26 (3d Cir. 2004) (citations omitted) (holding that
the BIA “erroneously rejected the validity of [two] abortion
certificates based on nothing more than the country report”). See
also Lin v. INS, 238 F.3d 239, 248 (3d Cir. 2001) (quoting Galina
v. INS, 213 F.3d 955, 959 (7 th Cir. 2000)). A cautious approach is
justified in this case, where the Report relies on data from 1993,
and devotes only a single paragraph to the topic of
“documentation.” At this juncture, however, it would be unduly
speculative for us to address the question whether this country
report alone could justify a refusal to give any weight to the
documents at issue in this case. Until we know whether and, if so,
to what degree the country report figured in the IJ’s evaluation of
the evidence, consideration of that issue is plainly premature.
V.
For these reasons, we hold that the order of the BIA must be
vacated and the case must be remanded. See Liu, 372 F.3d at 534;
Abdulai v. Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001) (remanding
“[b]ecause the BIA’s failure of explanation makes it impossible for
us to review its rationale”). The “BIA may proceed on remand as
it does with respect to any evidentiary question, evaluating issues
of materiality, relevance, probity, and the general requirements of
due process.” Id. at 534 n.9 (citations omitted). See also Yongo v.
INS, 355 F.3d 27, 30-31 (1 st Cir. 2004) (enumerating methods of
authentication). If it determines that the documents were excluded,
it must explain the basis for exclusion. If it decides that they were
admitted, it must square them with the IJ’s decision.
McKee, Circuit Judge concurring
I fully join my colleagues’ opinion. However, I write
separately to express my concern with the Immigration Judge’s
reasoning in this matter. I am particularly troubled because the
Immigration Judge ignored evidence corroborating Zhang’s claim
while apparently going out of his way to find problems with it.
Consequently, as I shall explain, the IJ’s opinion reads like “a
progression of flawed sound bites that gives the impression that
[the IJ] was looking for ways” to deny Zhang’s claim, rather than
adjudicate it. Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003).
12
The IJ states that Zhang’s testimony:
right at the beginning, appears to be a script. This is
subtle but it’s an indication of what was to follow.
I’m referring to when the respondent, in her oral
testimony, stated right at the outset, ‘I have suffered
persecution from the family planning.’ . . . real
refugees are not throwing around the word
‘persecution’ that often . . . In the cases where the
persecution is lacking because the story is not true
the word ‘persecution’ tends to be used more and
more.
App. 13. The IJ’s reaction to this testimony, by his own account,
seems to have predisposed him “right at the beginning” to conclude
that Zhang was not being truthful. Given the evidence supporting
her claim, absent some explanation, that reaction is simply
unsupportable.
Zhang used the word “persecution” exactly once during her
entire testimony. She did not “throw[] around the word . . . that
often . . .”. The single instance in which she referred to
“persecution” is as follows:
Question: Why did you leave China?
Answer: Because I have suffered persecution by the
family planning.
Question: Can you describe what family planning
is?
Answer: They just forced me to undergo abortion
and have the IUD inserted, but I do not go willingly.
App. 62, lines 12-17. Based upon that one reference to
“persecution,” the IJ concluded “right from the beginning” that
Zhang was being untruthful. He thereafter viewed her claim
through jaundiced eyes despite substantial documentary evidence
that corroborated it.
Zhang’s reference to “persecution”is hardly remarkable
even if that word is not part of her daily vocabulary. Zhang may
well have become familiar with that word and learned its relevance
13
to her claim during the course of the hearings into the issue of
“persecution.” Zhang was, after all, represented by an attorney who
would have discussed her case with her before the hearing.9 She
could easily have realized that the treatment she was describing
was tantamount to “persecution” under our immigration laws.
However, for reasons that are not apparent on this record, the IJ
never allowed for that possibility.
Although we don’t expect an Immigration Judge to search
for ways to sustain an alien’s testimony, neither do we expect the
judge to search for ways to undermine and belittle it. If the IJ’s
reference to Zhang’s single use of “persecution” were the only
troubling aspect of his opinion, it could be dismissed as hyperbole.
However, the rest of the IJ’s opinion is also troubling.
The IJ believed it was implausible that a woman as
“relatively humble and who [has as] little education” as Zhang
would be familiar with the Chinese government’s mistreatment of
those Chinese citizens that return to China after leaving for the
United States. App. 13-14. However, the IJ never bothered to
explain why he discounted the very real possibility that someone in
Zhang’s position could learn her government’s policies through
“word of mouth.” Indeed, given the absence of a free press so
typical of authoritarian regimes, information about official
mistreatment of citizens would more likely spread by word of
mouth than written word. Yet, the IJ concluded, without citing any
supporting evidence, that Zhang “came about this ‘knowledge’
because someone, probably the smuggler or someone who arranged
for her to come forward with this asylum, told her to throw that one
in.” See app. 13-14. That is nothing short of rank speculation.
The IJ assumed that Zhang manufactured a “dramatis
personae” [sic] in testifying about the doctor who removed IUDs
because he was purportedly able to remove them and avoid
prosecution by the authorities. The IJ was skeptical that residents
in her community knew the doctor’s identity, yet the identity
9
1 It would have certainly been less than professional to call
2 his client as a witness without discussing the case with her
3 beforehand.
14
remained hidden to the authorities. The IJ reasoned:
According to the respondent “a lot of people knew
about” this doctor who was taking IUD’s out in the
particular area of China. Apparently, no one in the
planning office knew about this doctor. Everybody
else knew about him but the people who count, the
officials, didn’t seem to know that as they were
putting IUD’s into women he was down the street
taking them all out. One could just imagine what
kind of punishment a person like that would suffer if
the rest of these allegations about the severity of the
birth control policies in China are to be believed.
App. 15.
Once again, given the evidence corroborating Zhang’s
claim, his skepticism of that testimony is as unfounded as it is
naivé. The IJ’s reasoning proceeds as follows: Zhang said she and
others knew of a doctor who was illegally removing IUDs. The
doctor had not been arrested even though villagers knew what he
was doing. Therefore, the doctor must not exist and Zhang must
have manufactured him for her testimony.
Of course, the IJ had no way of knowing whether the doctor
was eventually prosecuted. Moreover, it is not that improbable that
a doctor could perform illegal procedures and not be arrested. Even
in a society as advanced as our own, not every “law breaker” is
arrested. One need only recall that a few years ago, women in the
United States were able to find doctors willing to perform abortions
even though the practice was then illegal.
Today we need look no further than many American cities
where open air drug markets prosper even though residents, and
even police, know drugs are being sold there. For example, in
United States v. Miller, 73 F. Supp. 2d. 4, 6 (D.C. Cir. 1999), the
court refers to the Drug Enforcement Agency refusing to renew a
lease on a property because of nearby open air drug markets. The
court explained: “This property . . . is an older building . . . At one
point the Drug Enforcement Administration was the tenant.
Ironically, the DEA did not renew the lease because of narcotic
15
activity in open air drug markets in the area.” Cf. United States v.
Edmonds, 240 F.3d 55, 57 (D.C. Cir. 2001) (“The officers included
. . . a 21-year veteran who had worked in that neighborhood
intermittently for some 14 years. [It] is notorious as one of the
many ‘open air drug markets’ infesting the nation's capital . . .”);
United States v. Baptiste, 264 F.3d 578, 581 (5th Cir. 2001) (“The
government presented evidence at trial that an ‘open air drug
market’ existed in the Seventh Ward beginning in the early
1990s.”); United States v. Gibbs, 904 F.2d 52, 60 (D.C.Cir. 1990)
(counsel objected when the witness testified the defendant was “up
around J. street, the open air drug market”). According to the logic
that was used to deny Zhang’s claim, these open air drug markets
simply do not exist because officials would know about them.
There is, however, an even more troubling aspect of the
Immigration Judge’s decision. Given the judge’s analysis, I can
not help but wonder if his decision here was influenced by his view
of Zhang’s parenting. The Judge stated:
So she has three children. This is like a bird in the
hand versus two in the bush. To [Zhang] two in the
bush is more important than the one in the hand. She
has three children which she can take care of, which
she can cherish and be part of their upbringing, or
she could say, “No. I’m not really interested in that.
What I think I’ll do is I’ll just discard those three
kids and I’ll worry about some other kids who may
in the future materialize somehow or other. I’m not
quite sure how because, by the way, my husband
happens to be in China as I sit here and speak. But
let’s forget about the kids that I have and we’ll worry
about the kids that I don’t have and in all probability
never will have.”
App. 18.
In fairness, it is possible that the IJ summarized Zhang’s
testimony in this manner to explain why he found her asylum claim
inconsistent with her leaving her three children in China, and that
this undermined her credibility. However, given the Judge’s
16
willingness to ignore so much of this record that is consistent with
Zhang’s testimony, I can not help but be concerned that such a bias
played a role in this decision. The issue before the Judge was, after
all, whether Zhang qualified as a “refugee,” not the quality of her
parenting, or her presence in the home. See Perez-Alvarez v. INS,
857 F.2d 23, 24 (1st Cir. 1988) (in considering claims of
persecution it is “highly advisable to avoid assumptions regarding
the way other societies operate.”).
In overlooking the evidence corroborating Zhang’s
testimony, the IJ explained: “[w]hen someone is going to come in
and say they had a forcible abortion . . . I’m going to want some
proof that it’s more than just possible, that there is a substantial
chance that this thing . . . happened. . . .” App. 17. Though he
demanded “some proof,” the judge totally ignored proof that Zhang
had introduced to corroborate her claim. This included (1) birth
certificates for Zhang, her husband, and her three children; (2) a
receipt indicating that Zhang was fined 3000 Yuan for removing an
IUD without permission; (3) another receipt showing that Zhang
was fined 5000 Yuan for “attempt to give birth secretly;” (4) a
Birth Control Surgery Certificate from Changle City stating that
Zhang “was conducted with a Abortion Operation and IUD
installation on March 15[, 1996] at our Clinic;” and (5) a notice
addressed to Zhang and her husband from the “Birth Control Office
of Shouzhan Town Changle City,” which instructed Zhang or her
husband to go to the local hospital to be sterilized, or, be forced to
be sterilized, because Zhang already had children.
The IJ also rejected Zhang’s testimony that her IUD fell out
without relying on any medical or scientific evidence. He simply
concluded that IUDs cannot fall out without an individual noticing.
App. 19. There are, however, sources that indicate that this is a
d i s t i n c t p o s s i b i l i t y . S e e :
http://www.plannedparenthood.org/pp2/portal/files/portal/medic
alinfo/birthcontrol/pub-contraception-iud.xml.10 ( “Although
uncommon, an IUD can be expelled without your knowing it. This
is most likely to happen during your period. It is a good idea to
check your pads or tampons daily while you are menstruating to see
if the IUD has fallen out.”).
10
1 Last viewed March 17, 2005.
17
Finally, the IJ explains that he is skeptical about Zhang’s
testimony that only farmers are allowed to have a second child
because “[t]here is no support for that anywhere in what the State
Department tells us.” App. 17. However, there is nothing in the
State Department Report that undermines that testimony either.
Zhang can not be faulted because the State Department Country
Report fails to touch upon every aspect of China’s one child policy.
Moreover, common sense would suggest that, to the extent that an
authoritarian regime is supported by an agrarian economy, officials
might well allow farmers more than one child to help with the land,
but deny that permission to families that did not need the extra
labor to produce food. Frankly, I do not know if this is true or not.
I submit, however, that it is consistent with common sense and I
mention the possibility only to illustrate that the IJ seems to have
gone out of his way to find Zhang’s testimony incredible.
Thus, I think it important to state that if the BIA remands
this matter for further proceedings before an Immigration Judge, I
hope that the Bureau will see the wisdom of referring it to a
different IJ. This IJ’s decision was “not based on a specific, cogent
reason, but, instead, [] based on speculation, conjecture, or an
otherwise unsupported personal opinion.” Dia, 353 F.3d at 250.
Accordingly, I do not see how Zhang can receive a hearing that
would insure the fairness and the appearance of impartiality so
crucial to a just result if the case is ultimately decided by the same
IJ. As the Supreme Court observed in Offutt v. U.S., 348 U.S. 11,
14 (1954), to perform its high function in the best way, “justice
must satisfy the appearance of justice.” In order to achieve that
result here, Zhang must have a hearing before a different
Immigration Judge.11
11
1 The importance of remanding Zhang’s case to a different
2 Immigration Judge is further demonstrated by yet another excerpt
3 from the IJ’s oral decision. In an apparent attempt at sarcasm, and
4 despite documentary corroboration that Zhang had undergone a
5 forced abortion, the judge quipped, “[t]here is evidence [that forced
6 abortions] have occurred but there is also evidence that meteors
7 have landed in the United States.” App. 17.
8 I have no idea what the judge meant by that comment.
9 Meteors have, after all, fallen in the United States, and I don’t
10 understand how that fact undermines proof of their existence, nor
11 why it is relevant to Zhang’s corroborated claims.
18