Feng Ying Zheng v. John Ashcroft ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-4025
___________
Feng Ying Zheng, *
*
Petitioner, *
*
v. * Petition for Review of an Order
* of the Board of Immigration Appeals.
*
1
Alberto Gonzales, Attorney General *
of the United States, *
*
Respondent. *
___________
Submitted: December 17, 2004
Filed: July 28, 2005
___________
Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
___________
BYE, Circuit Judge.
Feng Ying Zheng, a citizen of the People's Republic of China, claims she fears
persecution if removed to China because of the country's coercive population control
policies. Zheng seeks review of the Board of Immigration Appeal's (BIA) final order
affirming the Immigration Judge's (IJ) decision denying her application for asylum,
1
Alberto Gonzales has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
withholding of removal, and protection under Article III of the Convention Against
Torture (CAT). Because we find the BIA erred by failing to consider significant
evidence supporting Zheng's claim, we conclude the denial of relief was not
supported by substantial evidence. Accordingly, we vacate the BIA's order of
removal and remand for further proceedings.
I
Zheng was born on March 12, 1970, in Guantou Village, Lian Jiang City, in the
Fujian Province of China. She entered the United States without inspection on
September 12, 1993. On May 3, 1996, Zheng married Chang Qin Lin. Zheng and her
husband presently have three United States citizen children: a son, born January 19,
1997; and two daughters, born September 13, 2000, and July 12, 2003. Zheng's sister
and brother live in New York; both have been granted asylum based on China's birth
control policies.
On January 3, 1995, Zheng filed an application for asylum. On July 22, 1999,
the Immigration and Naturalization Service, now the Bureau of Immigration and
Customs Enforcement within the Department of Homeland Security, commenced
removal proceedings against Zheng by issuing a Notice to Appear. The IJ held an
evidentiary hearing on Zheng's application for asylum, withholding of removal, and
relief under the CAT on July 18, 2001. Zheng, her husband, and her sister testified.
At the hearing, Zheng testified she feared returning to China because she
believes upon return she will be arrested immediately and either she or her husband
will be forcibly sterilized because she had a second child when her first child was a
boy. She testified she and her husband would like to have more children and do not
practice any form of birth control. She testified she fears she will be subject to forced
sterilization or abortion because of China's family planning policies. Zheng further
testified her fear of returning to China is also based on the experiences of her sister,
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who, after becoming pregnant for the second time, was arrested and given an injection
causing an abortion. Zheng stated that prior to her departure from China she did not
have problems with China's birth control policy.
Zheng's sister, Feng Zhen Zheng, also testified at the hearing. Zheng's sister
testified she was also an applicant for asylum based on China's birth control policy
and had appeared before an immigration judge in New York in 2001. The sister
testified that when she was six months and seven days pregnant in China, she was
forced to abort her second pregnancy and lost a female fetus on July 7, 1998, at
Lianjian Hospital in Lianjian City. She testified after she got pregnant she was hiding
at her mother's home in Guantou, which is thirty minutes from Lianjian Hospital.
Someone reported her and she was arrested at her mother's house by an officer from
the birth planning office who then sent her to Lianjian Hospital to have an abortion.
Her first child was a boy.
The parties also submitted numerous documents concerning China's population
control policies, including the United States Department of State 2001 Country
Report on Human Rights Practices in China, United States Department of State's 1998
Profile of Asylum Claims and Country Conditions for China, March 14, 2000, Report
by the Canadian government, and an April 2002 Assessment on China prepared by
the United Kingdom. Additionally, Zheng submitted an affidavit of John Shields
Aird, a specialist on demographic developments and population policy in China, who
is also a retired demographer formerly employed at the U.S. Bureau of Census. Aird's
affidavit refutes alleged misrepresentations concerning China's coercive population
control policy in Department of State reports and documents issued by the Canadian
government.
The IJ denied Zheng's application for asylum, withholding of removal, and
relief under the CAT on July 12, 2002. The IJ found Zheng had not suffered past
persecution in China. The IJ further found Zheng had a subjective fear of future
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persecution, but determined Zheng's fear of persecution was not objectively
reasonable. Because Zheng failed to meet her burden to demonstrate her eligibility
for asylum, the IJ concluded Zheng failed to establish her entitlement to withholding
of removal. The IJ also found Zheng failed to meet her burden under the CAT.
The IJ found both Zheng and her husband to be "generally credible."
Additionally, the IJ found Zheng's sister to be "generally credible." However the IJ
stated she would "not give great weight to the sister's testimony." The following
explanation was provided: "[T]his Court did not have the sister's asylum application
before this Court to determine the credibility of her own application, with respect to
how it affects the respondent's case." Accordingly, the IJ did not analyze Zheng's
sister's testimony concerning her forced abortion in determining whether Zheng's fear
was objectively reasonable.
Although the IJ found Zheng had a subjective fear of persecution in China, the
IJ concluded "the documentation in the record does not objectively support this fear."
In determining Zheng's fear was not objectively reasonable, the IJ explained: "The
current information in the record regarding China reflects that the forced coercive
family planning policies are not being followed in Fujian Province and that Fujian
Province is lax on enforcing family planning policies." The IJ found Zheng "failed
to also prove to the Court that she would be persecuted because she has had two
children born in the United States." The IJ also found "the respondent has failed to
show that the threat of persecution exists countrywide," noting "[a]ccording to the
country information, there are clearly areas in China in which a person, who wants
to have two or more children, even three or four children, can live and have that
number of children."
In reaching its finding, the IJ relied primarily on the 2002 UK Assessment and
the 2000 report by the Canadian government. According to the 2002 UK Assessment,
"[f]or differing reasons, most authorities agree that the Fujian Province is lax in
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implementing the birth control policies" and "[t]he authorities work by incentive
schemes rather than coercion, with forced abortion and sterilization no longer
tolerated, and efforts to increase the professionalism of family planning workers."
The UK Assessment also states "in 1999, there have been signs that the government
is beginning to relax its policies in the cities" and "minorities in some rural areas are
permitted to have four children." The report prepared by the Canadian government
similarly concludes "[t]here is less effective enforcement of the 'one-child' policy [in
the Fujian Province] than in other parts of China."
Zheng appealed to the BIA arguing the IJ erred in finding Zheng did not
establish a well founded fear of future persecution. Zheng also claimed the IJ
violated her due process rights to a full and fair hearing. The BIA dismissed the
appeal. The BIA found no merit in Zheng's claims that her due process rights were
violated. On the merits, the BIA adopted the facts set forth by the IJ and affirmed the
IJ's determinations that Zheng failed to establish eligibility for asylum, withholding
of removal, and protection under the CAT. Specifically, the BIA found Zheng "failed
to establish that she has suffered past persecution on account of a protected ground,
or that she has a well-founded fear of persecution if returned to China to include as
a result of their coercive population control policies because she has two United
States citizen children."
II
We review the BIA's decision as the final decision of the agency. "To the
extent . . . the BIA adopted the findings or the reasoning of the IJ, we also review the
IJ's decision as part of the final agency action." Falaja v. Gonzales, 406 F.3d 1076,
1081 (8th Cir. 2005) (citing Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005)).
We review the BIA's determination that Zheng failed to establish she is eligible for
asylum under a substantial evidence standard. Lau May Sui v. Ashcroft, 395 F.3d
863, 869 (8th Cir. 2005) (citing S-Cheng v. Ashcroft, 380 F.3d 320, 322-23 (8th Cir.
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2004)). Under the substantial evidence standard, we will not overturn the BIA's
decision unless we find, based on the evidence, "no reasonable fact-finder could
arrive at the conclusion reached by the BIA." Id. (quoting S-Cheng, 380 F.3d at 323).
The Immigration and Nationality Act provides the Attorney General the
discretion to grant asylum to an alien who is a "refugee." 8 U.S.C. § 1158(b). A
"refugee" is an alien unwilling to return to her home country "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." Id. § 1101(a)(42)(A).
Congress has expanded the definition of "refugee" to include "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." Id. § 1101(a)(42)(B). Such individuals
"shall be deemed to have been persecuted on account of political opinion, and a
person who has a well founded fear that he or she will be forced to undergo such a
procedure or subject to persecution for such failure, refusal, or resistance shall be
deemed to have a well founded fear of persecution on account of political opinion."
Id.
Zheng does not claim she has suffered past persecution, but claims she has a
well founded fear of future persecution if removed to China based on China's
coercive population control policies. To establish a well founded fear of future
persecution, Zheng must show her fear is "both subjectively genuine and objectively
reasonable." Mwangi v. Ashcroft, 388 F.3d 623, 627 (8th Cir. 2004) (citing INS v.
Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987)). "Subjectively, [Zheng] must
demonstrate with credible evidence that she genuinely fears persecution; objectively,
she must demonstrate through credible, direct, and specific evidence that a reasonable
person in her position would fear persecution." Id. (citing Feleke v. INS, 118 F.3d
594, 598 (8th Cir. 1997)).
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We hold the BIA's determination that Zheng failed to establish her fear of
persecution was objectively reasonable is not supported by substantial evidence for
two reasons.
First, we believe the IJ erred by failing to consider Zheng's sister's testimony
about being forced to abort her second child in July 1998 and by relying instead on
general reports that since 1999 enforcement of the one-child policy has been lax in
Fujian. The fact that in 1998 Fujian family planning authorities forced Zheng's sister
to abort her second child when she was six months and seven days pregnant is
specific, direct evidence demonstrating Zheng's fear is objectively reasonable. Cf.
Nyonzele v. INS, 83 F.3d 975, 983 (8th Cir. 1996) (stating "[a]cts of violence against
an alien's family members may demonstrate a well-founded fear of persecution")
(citing Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991)); Makonnen v.
INS, 44 F.3d 1378, 1385-86 (8th Cir. 1995) (holding acts of persecution against
immediate family member with similar political views and active in similar political
activities is relevant to show well-founded fear of persecution); accord Zhang v.
Gonzales, 408 F.3d 1239, 1249 (9th Cir. 2005) (stating "'acts of violence committed
against an applicant's friends or family can establish well-founded fear of
persecution'") (quoting Nagoulko v. INS, 333 F.3d 1012, 1017 (9th Cir. 2003));
Zhang v. Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004) (noting "treatment of [ ]
similarly situated family members is highly indicative" of persecution petitioner
would encounter upon return).
Although the IJ found Zheng's sister's testimony to be credible, the IJ did not
consider it in determining whether Zheng's fear was objectively reasonable,
explaining: "[T]his Court did not have the sister's asylum application before this
Court to determine the credibility of her own application, with respect to how it
affects the respondent's case." We find the IJ's explanation for giving little weight to
Zheng's sister's testimony difficult to understand. If the IJ heard the sister's testimony
and found her to be credible, it is unclear to us why the IJ needed to consider
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separately the credibility of the sister's asylum application in order to accept the
sister's testimony.
The government argues it was appropriate for the IJ to rely on country reports
in concluding Zheng's fear was not objectively reasonable. As the government notes,
we have stated "Department of State country condition reports are persuasive
authority for determining whether an asylum-seeker has a well-founded fear of
persecution." Perinpanathan v. INS, 310 F.3d 594, 599 n.1 (8th Cir. 2002) (citations
omitted). However, as other courts have cautioned, "use of such official report does
not substitute for an analysis of the facts of each applicant's individual
circumstances." Krastev v. INS, 292 F.3d 1268, 1277 (10th Cir. 2002); accord Lin
v. Ashcroft, 385 F.3d 748, 754 (7th Cir. 2004). By failing to consider Zheng's sister's
testimony about her forced abortion, which the IJ found credible, the IJ failed to
analyze significant credible concrete evidence demonstrating Zheng's fear is
objectively reasonable.
Moreover, Zheng's sister's testimony, and Zheng's fears, are corroborated by
the State Department reports. For example, the State Department's 2001 Country
Report provides:
Central Government policy formally prohibits the use of force to
compel persons to submit to abortion or sterilization; however, intense
pressure to meet family planning targets set by the Government has
resulted in documented instances in which local family planning
officials have used coercion, including forced abortion and sterilization,
to meet Government goals. During an unauthorized pregnancy, a
woman often is paid multiple visits by family planning workers and
pressured to terminate the pregnancy. Senior officials have stated
repeatedly that the Government "made it a principle to ban coercion at
any level." Senior officials acknowledge that problems persist and insist
on the Government's determination to address such problems. . . .
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According to the State Department's 1998 Profile, "[i]n 1996 there were credible
reports that several women were forced to undergo abortion in Fujian." Additionally,
under the section entitled "Actual Implementation and Practice," the 2002 UK
Assessment notes: "Government officials have acknowledged that there have been
instances of forced abortions and sterilisations [sic], and there are anecdotal accounts
of raids on rural villages by task forces rounding up women for forced sterilisation
[sic] or abortion. . . . There are still, in 1999, routine allegations of enforced
sterilisations [sic], particularly in rural areas, and regular re-enforcement of
regulations."
We also believe the BIA's determination that Zheng failed to demonstrate
children born in the United States are treated the same as children born in China is
not supported by substantial evidence because it fails to take into account the
information provided by Aird's affidavit. In his affidavit, Aird refutes the finding in
the 1998 Profile that children born to Chinese nationals living abroad are not counted
under China's family planning rules. According to Aird,
The agency admits that it cannot cite an official source
authorizing especially lenient treatment for the parents of U.S.-born
children. There is no provision for such special treatment in any of the
national or provincial policy regulations and directives that have been
made public. The [State Department] bases its argument on what it calls
"anecdotal information"—alleged statements by individual Chinese in
four Chinese cities, mainly family planning officials. However, family
planning officials in China, from the top leadership in the SFPC down
to the local level, have an interest in giving a deceptively moderate
impression of program enforcement in order to counter the adverse
publicity generated by actual case histories of extreme punitive
measures applied to particular Chinese couples. . . .
Aird notes "[t]he [1998 Profile] quotes a Chengdu (Sichuan) university
graduate as saying that 'a married woman going abroad from her city can have a
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second child and return without penalty if one member of the couple gets an
American graduate degree.'" According to Aird, "[t]his may be true in some cases,
particularly because of Chinese government concerns about the 'brain drain' resulting
from the failure of Chinese graduate students to return home after the end of their
training." Aird states "[s]uch exceptions, however, are not available to most Chinese
asylum seekers." Aird's affidavit includes several examples of statements from
Chinese officials indicating the one-child policy applies to Chinese couples living
abroad. Aird concludes: "The reason why the Chinese family planning authorities
attempt to enforce family planning rules on their nationals living abroad is that to
ignore their violations would tend to undermine the enforcement of the rules in China.
The Chinese authorities cannot afford to let rumors get about that couples of
childbearing age can evade the one-child limit by leaving the country illegally, having
unauthorized children in foreign countries, and returning home without suffering the
standard penalties."
In Guo v. Ashcroft, 386 F.3d 556, 565 (3d Cir. 2004), the Third Circuit
addressed the evidentiary impact of a similar affidavit Aird submitted criticizing the
1998 Profile's findings regarding the applicability of the one-child policy to children
born in the United States. The Third Circuit concluded "where a motion to reopen
is accompanied by substantial support of the character provided by the Aird affidavit,
the Government's introduction of a five-year-old State Department report, without
more, hardly undermines [the petitioner's] prima facie showing." Id. We likewise
believe the BIA erred in determining Zheng failed to show she would be subject to
China's one-child laws without addressing the evidence presented in Aird's affidavit.
The government argues the instant case presents the same circumstances as
those presented in our decision in S-Cheng v. Ashcroft, and that S-Cheng requires we
affirm in the instant case. We disagree. In S-Cheng, Cheng filed an application for
asylum in May 1994 falsely claiming she had been involved in democratic protests
in China. 380 F.3d at 321. In July 2000, Cheng withdrew her 1994 asylum
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application and filed a new one in which she claimed she feared persecution under
China's coercive population control policies. Id. at 321-22. At the hearing, Cheng
testified she was born in the Fujian Province and was the oldest of six children. She
testified local authorities harassed her mother for violating China's one-child policy
and forced her mother to submit to sterilization after the birth of the fourth child. The
operation failed, and Cheng's mother gave birth to two additional children. She
testified her mother was forced to submit to the insertion of an IUD device, which she
had removed. Id. at 322. Cheng claimed she feared she would be subject to forced
sterilization if returned to China because she had a son who was born in the United
States. When asked whether her husband and son would accompany her to China if
deported, Cheng stated "my husband and son[] will not allow me back to China
because we all have, our house, everything is here." Cheng testified she and her
husband planned to have more children. She also admitted she lied in her earlier
application for asylum. Id.
The IJ determined Cheng was not credible. Id. at 323. Furthermore, the IJ
concluded Cheng's fear of forced abortion and sterilization was based on speculative
facts. Id. The BIA dismissed the appeal. Id. at 322. We denied Cheng's petition for
review. We affirmed BIA's adoption of the IJ's finding that Cheng lacked credibility
because Cheng lied in her entry application and first asylum application. Id. at 323.
We held that based on Cheng's track record, the BIA had a reasoned basis to
disbelieve Cheng's claims that she planned to have a second child and subjectively
feared China's population control policies. Id. We also found substantial evidence
supported the BIA's finding Cheng's fear of forced abortion and sterilization was not
objectively reasonable because it was based on hypothetical and speculative facts.
Id. We found Cheng did not show she was in violation of the one-child policy by
having a United States born child living in the United States, and that it was
speculative to conclude Chinese authorities would learn of the child in the United
States. This was based on Cheng's testimony suggesting her husband and son would
not accompany her to China. Id. We noted according to State Department and
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Canadian reports, the Chinese government had replaced sanctions with incentives to
encourage compliance with the law, there was no evidence of forced sterilizations or
abortions in recent years particularly in Cheng's province, and Chinese authorities
urged sterilizations after a second or third child, and up to a third of families in
Cheng's province had three or more children. Id.
There are more pertinent differences than pertinent similarities between our
decision in S-Cheng and the instant case. In S-Cheng, the IJ found Cheng lacked
credibility and did not have a subjective fear of persecution. In the instant case, the
IJ found Zheng to be credible and found Zheng had a subjective fear of persecution
based on China's coercive population control policies. In S-Cheng, we held Cheng
failed to provide credible specific evidence demonstrating her fear of forced abortion
or sterilization was objectively reasonable. In the instant case, Zheng presented
credible specific evidence by introducing the testimony of her sister concerning her
forced abortion in China. In S-Cheng, Cheng failed to provide evidence
demonstrating forced sterilizations or abortions occurred in recent years to rebut the
general reports that implementation of the one-child policy was becoming lax in the
Fujian Province. In the instant case, Zheng's sister's testimony undercuts such claims
that forced abortions or sterilizations no longer occur in Fujian. In S-Cheng, we
found that Cheng's testimony suggested she would not take her United States born
child to China if forced to leave the United States and thus concluded Cheng failed
to show Chinese officials would find out about her son in the United States. In the
instant case, there is no evidence suggesting Zheng would leave without her three
children and husband if removed to China. Moreover, Zheng presented Aird's
affidavit which concludes Chinese authorities would have reason to enforce the one-
child policy against United States born children. In S-Cheng, we held substantial
evidence supported the BIA's determination Cheng's claim she wanted to have more
children was not credible. In the instant case, the IJ found credible Zheng's claim she
planned to have more children.
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"When an agency makes a finding of fact without mentioning or analyzing
significant evidence, its decision should be reconsidered." Habtemicael v. Ashcroft,
370 F.3d 774, 783 (8th Cir. 2004) (citing Palavra v. INS, 287 F.3d 690, 693 (8th Cir.
2002)). Because we believe the BIA erred by failing to consider significant evidence,
we vacate the BIA's order denying Zheng's application for asylum and remand the
case for reconsideration in light of this evidence.
Additionally, because the BIA denied Zheng's request for withholding of
removal without considering Zheng's sister's testimony and Aird's affidavit, we
remand Zheng's request for withholding of removal for reconsideration in light of our
holding with respect to Zheng's asylum claim.
III
The government contends we lack jurisdiction to review Zheng's request for
protection under the CAT because Zheng failed to exhaust administrative remedies
with respect to the claim. According to the government, in her brief to the BIA Zheng
only argued she demonstrated a well founded fear of persecution, and because the
standard of proof for a claim under the CAT differs from the standard of proof for an
asylum claim, the government contends Zheng failed to appeal to the BIA the denial
of the CAT claim. This argument is without merit. Zheng explicitly asked for relief
from the IJ's denial of relief under the CAT in her brief to the BIA. Moreover, in its
decision, the BIA specifically considered and dismissed Zheng's appeal of the denial
of her claim under the CAT. Thus, in light of our holding with respect to Zheng's
application for asylum, we remand for reconsideration Zheng's request for protection
under the CAT.
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IV
Although we have already decided to remand Zheng's claims to the BIA based
on the BIA's failure to analyze significant evidence, we consider Zheng's due process
arguments at this time because our determination of Zheng's due process claims could
impact the nature of the proceedings on remand. Compare Palavra, 387 F.3d at 694
(remanding for further consideration after finding agency failed to analyze significant
evidence), with Al Khouri, 362 F.3d at 467 (remanding for new hearing after finding
due process violation).
Zheng contends the IJ violated her due process rights by showing bias and
denying her a full and fair hearing. "The Fifth Amendment's due process clause
mandates that removal hearings be fundamentally fair." Al Khouri v. Ashcroft, 362
F.3d 461, 464 (8th Cir. 2004) (citing Reno v. Flores, 507 U.S. 292, 306 (1993);
Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993); Plyler v. Doe, 457 U.S.
202, 210 (1982)). "'To demonstrate a violation of due process, an alien must
demonstrate both a fundamental procedural error and that the error resulted in
prejudice.'" Id. at 466 (quoting Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir.
2003)). "'Actual prejudice exists where defects in the deportation proceedings may
well have resulted in a deportation that would not otherwise have occurred.'" Id.
(quoting United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995)).
Zheng argues that in denying her requests for relief, the IJ made statements
demonstrating bias. We have reviewed the transcript of the hearing and do not
believe any statements the IJ made during the hearing demonstrate bias to establish
Zheng did not receive a full and fair hearing.
Zheng also contends the IJ violated her right to a full and fair hearing when the
IJ stopped Zheng's testimony of her opinion about the Chinese government's family
planning policy. The IJ also refused to permit Zheng's attorney to proceed on a line
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of questioning stating she did not "want to hear their whole asylum case over again."
As the government argues, Zheng's attorney intended to elicit this testimony from
Zheng to demonstrate "she knows the policy exists and what's the policy and why she
has that fear." Because the IJ found Zheng to be credible and that Zheng has a
subjective fear of persecution, Zheng cannot demonstrate prejudice. We agree.
Zheng also alleges the IJ erred by proceeding without Zheng's attorney and
calling the attorney's paralegal to translate for Zheng over the telephone. According
to the government, the IJ attempted to hold a hearing on October 4, 2001 for which
Zheng's attorney was to appear telephonically. Zheng's attorney's cellular phone
disconnected three times. The IJ ended the hearing and called Zheng's attorney's
office to inform Zheng in a language she could understand that the proceedings were
being continued at the government's request. We agree with the government and hold
Zheng's argument on this point is without merit.
V
We vacate the BIA's order of removal and remand for further administrative
proceedings consistent with this opinion.
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