Dong, Feng v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3351
FENG DONG,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A77 950 711
ARGUED DECEMBER 15, 2004—DECIDED AUGUST 31, 2005
Before KANNE, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. Feng Dong, a native and citizen of
China, claims that she was persecuted under China’s one-
child policy when Chinese officials forced her to abort her
pregnancy. She applied for asylum, withholding of removal,
and protection under the United Nations Convention
against Torture. The Immigration Judge (IJ) denied all
relief, and the Board of Immigration Appeals (BIA) sum-
marily affirmed. The IJ gave multiple reasons for denying
Dong’s petition, all ostensibly relating to credibility.
Because most of those reasons are either not supported by
the record or are not central to her claim, we grant Dong’s
petition for review, vacate the IJ’s decision, and remand for
further proceedings.
2 No. 03-3351
I
Dong, who is from Fujian province, testified at her
removal hearing that in September 1996, when she was 19,
she confirmed at a local hospital that she was one month
pregnant. She then told her boyfriend, and they decided to
get married. A week or two later, two men and two women
from the village planning office visited Dong at home and
asked her to accompany them to the hospital, for the stated
reason that they wanted to confirm that she was not
pregnant. Dong, her mother, and the four officials walked
about 20 to 25 minutes to the hospital. There, not surpris-
ingly, the officials learned that Dong was pregnant. When
Dong refused to get an abortion, the officials told her that
because she was not married and had not reached the legal
age for marriage they would perform the abortion and then
put her in jail. Although Dong told the officials that she
wanted to keep her child, she underwent an abortion that
day.
In response to questions from the IJ, Dong said that she
did not know why the officials came to her house, but she
speculated that they had been tipped off about her preg-
nancy by someone at the hospital where she had recently
confirmed that fact. The IJ asked Dong why, if the officials
already knew of her pregnancy, they would ask her to go to
the hospital to check if she was pregnant. Dong speculated
that the officials used this as an excuse to get her to the
hospital for the abortion.
In the end, Dong did not marry her boyfriend. She
remained in her hometown until January or February of
2000, when she paid $50,000 to a smuggler for a false green
card, a Social Security number and passport, and travel to
the United States. She made her way to Hong Kong and
then flew from there to the United States. At the Newark
airport, immigration officials determined that she was not
eligible to enter and detained her, finding that she lacked
No. 03-3351 3
valid travel documents and had misrepresented her iden-
tity. The next day, during an interview by an officer of the
former Immigration and Naturalization Service (INS), Dong
said that the purpose of her trip to the United States was
“for fun,” but added that she feared returning to China
“because of the one-child policy.” At her hearing she
explained that she was afraid to tell the truth to the
interviewer because she did not trust the United States
government. She also explained that she did not apply for
political asylum at the airport because she did not know the
law in the United States.
Dong testified at her hearing that she did not want to
return to China because she did not want to be persecuted
again. Dong believed that she would be imprisoned in China
“because I came into the United States illegally and that
way it violated their regulation.” Also, she thought that she
would be jailed because after she left China she was not
present for the required annual pregnancy check in her
hometown.
The INS initiated removal proceedings. In October 2000,
Dong requested a change of venue to Chicago. With that
request, Dong’s attorney represented that she sought
asylum, but he did not file a formal asylum application for
her until July 2001. By then, more than a year had passed
since Dong’s arrival in the United States, and as a result
she concedes that she was statutorily barred from asylum
relief. See 8 U.S.C. § 1158(a)(2)(B). (Because Dong has not
argued here that her attorney’s informal statement satisfied
the one-year rule, we express no opinion on this point, or on
the question to what extent an applicant for asylum in her
position might perfect an existing application after the
expiration of the one-year period.)
In December 2001 Dong had a hearing before an IJ on her
request for withholding of removal, see 8 U.S.C.
§ 1231(b)(3), and her claim under the Convention Against
4 No. 03-3351
Torture. (On appeal, Dong has abandoned her request for
relief under the Torture Convention.) The IJ denied her
request for relief. He recognized that if Dong could prove
that she was forced to abort a pregnancy, she would
establish a well-founded fear of persecution. He concluded,
however, that Dong did not qualify for relief because her
testimony was not sufficient to establish that it was more
likely than not that she would be subject to persecution if
she returned to China. The IJ never actually said that he
found Dong not to be credible, but he commented that it
was “difficult to believe [Dong’s] account relating to events
central to [her] claim.” The IJ gave two reasons for conclud-
ing that her testimony concerning her abortion was “not
plausible”:
1) the Court does not believe that four village officials
would bother to come all the way to the respondent’s
house on foot in order to ask the respondent to go with
them to the hospital to check if the respondent is
pregnant. Such does not seem to be plausible. 2) it is
not plausible that four village officials would walk 20 to
25 minutes from their office to the respondent’s house
and then walk another 20 to 25 minutes to the hospital
with the respondent for a routine hospital examination
to find out if the respondent was pregnant.
The IJ gave no reason for why he thought that the village
officials might not be enforcing the population control rules,
or why walks of this length in rural China were unlikely.
The IJ also found that Dong’s testimony was inconsistent
with the State Department Country Report in four ways.
We note in passing that although the IJ identified the
document that concerned him as a Country Report, the
language that he quoted in his order is from China: Profile
of Asylum Claims and Country Conditions (April 14, 1998)
(Profile). First, Dong testified that she, as a female, could
get married “around 22,” but the IJ noted that the Profile
No. 03-3351 5
states that the minimum age for marriage in China is 22 for
males and 20 for females. The IJ also found that the Profile
contradicted Dong’s testimony, because the Profile reported
that: (1) in Fujian province, the U.S. Consulate General “is
not aware of any forced abortions of illegitimate children or
children of couples with an early marriage”; (2) “on visits to
Fujian province, Consulate General officials found that
strong persuasion through public and other pressure was
used, but they did not find any cases of physical force
actually employed in connection with abortion or steriliza-
tion”; and (3) “it has been reported that if a couple con-
ceived a child before the legal marriage, the child would be
treated as if it were born out of wedlock.”
The IJ also said that he had “particular difficulty” with
Dong’s claim for six additional reasons: (1) she presented
fraudulent documents upon entering the United States; (2)
she did not apply for asylum at the airport; (3) she did not
apply for asylum within a year of her arrival; (4) she did not
corroborate her claim with supporting documents; (5) she
did not submit an affidavit from her mother; and (6) she
remained in China for four years after her alleged abortion
without any problems.
Dong appealed the IJ’s decision, and the BIA summarily
affirmed.
II
Dong is eligible for withholding of removal if she can show
that there is a “clear probability” that she would be perse-
cuted if forced to return to her native country. INS v. Stevic,
467 U.S. 407 (1984); see 8 U.S.C. § 1231(b)(3); Lin v.
Ashcroft, 385 F.3d 748, 751 (7th Cir. 2004). If Dong can
establish that she suffered past persecution, she is entitled
to a presumption, subject to rebuttal by the government,
that her “life or freedom would be threatened in the future
in the country of removal on the basis of the original claim.”
6 No. 03-3351
8 C.F.R. § 208.16(b)(1)(i); see Zheng v. Gonzales, 409 F.3d
804, 810 (7th Cir. 2005); Zaidi v. Ashcroft, 377 F.3d 678,
681 (7th Cir. 2004); Vladimirova v. Ashcroft, 377 F.3d 690,
695 (7th Cir. 2004). Dong alleged that she was persecuted
based on her forced abortion. Congress has expressly
addressed forced abortion in 8 U.S.C. § 1101(42), which
states that a person who has been forced to abort a preg-
nancy “shall be deemed to have been persecuted on account
of political opinion.” See also Zhang v. INS, 386 F.3d 66 (2d
Cir. 2004). Thus, if the IJ had credited Dong’s claim that
she was forced to have an abortion, she would “automati-
cally [be] entitled to the presumption of a well-founded fear
of future persecution.” Zheng, 409 F.3d at 810; see Lin, 385
F.3d at 757.
When the BIA affirms an IJ’s ruling without opinion, see
8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision directly.
Lin, 385 F.3d at 751. An IJ’s credibility determination is
entitled to great deference. See Uwase v. Ashcroft, 349 F.3d
1039, 1041 (7th Cir. 2003). Nevertheless, we “will not
automatically yield to the IJ’s conclusions when they are
drawn from insufficient or incomplete evidence.” Georgis v.
Ashcroft, 328 F.3d 962, 968 (7th Cir. 2003). An IJ’s credibil-
ity determinations “must be supported by specific, cogent
reasons that bear a legitimate nexus to the finding.” Uwase,
349 F.3d at 1041 (internal quotations omitted).
On appeal Dong challenges each of the IJ’s reasons for
rejecting her testimony. She argues that the IJ’s reasons for
his conclusion were not supported in the record, and that
the documentary evidence the record contained did not
contradict her testimony. Dong concedes that she entered
the United States using false documents, did not apply for
asylum at the airport or within one year of her arrival, and
remained in China for four years after her abortion without
any problems, but she maintains that these facts, either
taken individually or collectively, are not valid reasons for
discrediting her testimony. Finally, Dong argues that
No. 03-3351 7
because her testimony was credible, she was not required to
corroborate it further.
The IJ found Dong’s story “not plausible,” but his skepti-
cism is not supported by evidence in the record. Dong
offered a reasonable explanation for the village officials’
conduct, stating that the officials had probably learned of
her pregnancy from the hospital where she had her preg-
nancy test and wanted to take her back to the hospital so
she could have an abortion. The IJ doubted that four
officials would trouble to pay a visit just to see whether
Dong was pregnant, but his opinion on this point is incon-
sistent with the Profile he cited, which speaks of strong
pressure that officials exert to enforce the family-planning
policies. Moreover, the number of officials who visited Dong
has little bearing on whether her abortion was forced. See
Lin, 385 F.3d at 755 (number of people who took petitioner
to hospital is “a factual point that has little bearing on
whether she was forced to abort her pregnancies”); He v.
Ashcroft, 328 F.3d 593, 600 (9th Cir. 2003) (“Whether five
people or ten people came to take his wife for involuntary
sterilization, it would nonetheless be involuntary.”) There
is nothing in the record that affirmatively supports the IJ’s
assumption that village officials would not act as Dong
described. The IJ’s skepticism alone, in light of Dong’s
consistent testimony, does not support a negative credibility
determination. See Huang v. Gonzales, 403 F.3d 945, 949-
50 (7th Cir. 2005) (portion of IJ’s decision “based entirely on
either the judge’s personal beliefs or some perceived
common knowledge” not proper basis for adverse credibility
finding); Lin, 385 F.3d at 755 (IJ’s skepticism “utterly
unsupported by any fact in the record” insufficient basis for
adverse credibility finding); see also Elzour v. Ashcroft, 378
F.3d 1143, 1153 (10th Cir. 2004) (holding that IJ’s skepti-
cism must be substantiated by record).
The IJ’s finding that Dong’s testimony was contradicted
by the Country Profile is similarly flawed. Although the
8 No. 03-3351
Profile says that the minimum age for marriage in China is
22 for males and 20 for females, it also says that “[i]n some
localities the ages are set higher.” The IJ did not point to
any information showing that the marriage age was not
higher in Dong’s locality. More importantly, whether the
marriage age was 20 or 22 was irrelevant to Dong’s situa-
tion, because under either minimum she was too young at
19 to get married when she learned that she was pregnant.
The portions of the Profile on which the IJ relied do not
contradict Dong’s testimony. Although the Profile reports
that U.S. officials had not seen proof of forced abortions, it
notes that Chinese officials “acknowledge that there may be
instances of force being used” to compel a person to submit
to an abortion. And the Profile “could not exclude the
possibility” that couples who married early would be forced
to abort a pregnancy. Indeed, the U.S. Department of State
Country Reports on Human Rights Practices, China (re-
leased February 2001), lends support to Dong’s testimony.
It states that it is illegal for unmarried women to bear
children and although force is officially prohibited,
intense pressure to meet family planning targets set by
the Government has resulted in documented instances
in which family planning officials have used coercion,
including abortion and sterilization, to meet govern-
ment goals. During an unauthorized pregnancy, a
woman often is paid multiple visits by family planning
workers and pressured to terminate the pregnancy. In
1998 a former Fujian province local family planning
official stated that local authorities in a Fujian town
systematically used coercive measures such as forced
abortion and sterilization, detention, and destruction of
property to enforce birth quotas.
Neither the Profile nor the Country Report rule out the
possibility that forced abortions occur; thus, the IJ erred in
relying on these reports to find Dong not credible. More-
No. 03-3351 9
over, an IJ should not rely on generalized Profiles or
Country Reports to refute an applicant’s personal experi-
ence. See Lin, 385 F.3d at 754; Bace v. Ashcroft, 352 F.3d
1133, 1139 (7th Cir. 2003) (“[I]t would be improper to find
that a witness’s credibility about specific events could be
‘contradicted’ by a generalized State Department report
broadly discussing conditions in the applicant’s country of
origin.”).
Finally, the remaining reasons that caused the IJ “partic-
ular difficulty” are largely beside the point. It is not rele-
vant to Dong’s credibility that she avoided persecution
during the four years she remained in China after her
abortion. For all anyone knows, she did so by avoiding
pregnancy, which is hardly a solution to the problem.
Furthermore, one forced abortion is sufficient to show
persecution; Dong does not have to show a string of such
incidents. See 8 U.S.C. § 1101(42); Ding v. Ashcroft, 387
F.3d 1131, 1133 (9th Cir. 2004).
As for the false documents, the BIA has distinguished
between use of false documents to establish an element of
an asylum claim and the use of false documents for entry
purposes. Although an IJ may find an applicant not credible
when she uses false documents for the former purpose, the
“use of false documents to facilitate travel or gain entry
does not serve to impute a lack of credibility to the peti-
tioner.” In re O-D-, 21 I. & N. Dec. 1079, 1081 (BIA 1998);
see also Yongo v. INS, 355 F.3d 27, 33 (1st Cir. 2004);
Akinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999).
Because Dong’s use of false documents to enter the United
States has no bearing on whether she was forced to termi-
nate her pregnancy, we reject this reason as a basis for the
IJ to find Dong not credible.
Dong’s statement to an immigration officer that she came
to the United States “for fun” also troubled the IJ. Airport
interviews, however, are not always reliable indicators of
10 No. 03-3351
credibility. See Huang, 403 F.3d at 950; Balogun v.
Ashcroft, 374 F.3d 492, 505 (7th Cir. 2004). And in Dong’s
case, the airport interview as a whole supports her claim.
Later in the same interview to which the IJ referred, Dong
told the immigration officer that she feared returning to
China because of the one-child policy, suggesting that this
was not a thought that occurred to her only after she
obtained counsel. Finally, her failure to apply for asylum
within one year of her arrival appears to be more relevant
to her attorney’s level of competence than to her credibility.
The IJ gave no weight to counsel’s informal statement, but
to the extent it sheds any light at all on her intentions, it
indicates that asylum was her goal.
Inconsistent statements and failure to file a timely
asylum claim can be valid reasons for finding an alien not
credible, but they cannot save the IJ’s overall determination
in this case. Because the other reasons given by the IJ for
denying relief are either unsupported by the evidence in the
record or not central to Dong’s claim, we decline to affirm
the IJ’s decision on these two weak grounds for finding
Dong not credible. See Huang v. Gonzales, 403 F.3d 945,
950 (7th Cir. 2005) (remanding where court had “misgiv-
ings” about all but one of IJ’s reasons for adverse credibility
finding); Georgis, 328 F.3d at 970 (remanding where five of
six reasons given by IJ for discrediting petitioner were
unsupported).
The lack of support for the IJ’s credibility determination
makes it difficult to evaluate the remaining reasons he gave
for denying her claim—that Dong did not provide any
supporting documents or a letter or affidavit from her
mother in support of her claim. We have held that
“[c]orroborating evidence is essential to bolster an otherwise
unconvincing case,” but when an applicant testifies credi-
bly, “it is not necessary for her to submit corroborating
evidence in order to sustain her burden of proof.” Lin, 385
F.3d at 751 (quoting Uwase, 349 F.3d at 1041); Georgis, 328
No. 03-3351 11
F.3d at 969; see also 8 C.F.R. § 208.13(a) (“The testimony of
the applicant, if credible, may be sufficient to sustain the
burden of proof without corroboration.”)). And in order to
deny asylum relief for lack of corroborating evidence, an IJ
must: (1) make an explicit credibility finding; (2) explain
why additional corroboration is reasonable; and (3) explain
why the alien’s explanation for not producing the requested
corroboration is inadequate. Gontcharova v. Ashcroft, 384
F.3d 873, 877 (7th Cir. 2004); see also Huang, 403 F.3d at
951. Here, the IJ did not explain why additional corrobora-
tion was reasonable, and he never asked Dong why she did
not provide supporting documentation. As a result, we
conclude that the lack of corroborating evidence cannot
support the IJ’s decision.
III
For these reasons, we find that the IJ’s decision is not
supported by substantial evidence. Upon remand, if the
agency finds credible Dong’s story that she was forced to
have an abortion, she is entitled to a presumption that she
will be persecuted upon her return to China. See 8 C.F.R.
§ 208.16(b)(1)(I). The IJ will then need to decide whether,
with the benefit of that presumption, she has shown that it
is more likely than not that she would be subject to persecu-
tion if she returns to China. We GRANT Dong’s petition for
review, VACATE the IJ’s decision, and REMAND to the BIA
for further proceedings consistent with this opinion.
12 No. 03-3351
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-31-05