Qiu Yun Lu v. Alberto Gonzales , 185 F. App'x 545 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1541
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Qiu Yun Lu, *
*
Petitioner, *
* Petition for Review
v. * of an Order of the
* Board of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, * [UNPUBLISHED]
*
Respondent. *
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Submitted: May 30, 2006
Filed: June 7, 2006
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Before ARNOLD, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Qiu Yun Lu, a citizen of China, petitions for review of an order of the Board
of Immigration Appeals, which summarily affirmed an Immigration Judge’s (IJ’s)
denial of asylum, withholding of removal, and relief under the Convention Against
Torture (CAT).1 We grant the petition.
1
Where the BIA summarily affirms, this court reviews the IJ’s decision as the
final agency determination. See Hoxha v. Gonzales, 432 F.3d 919, 920 (8th Cir.
2006).
In March 2001 the former Immigration and Naturalization Service (INS)
charged Lu with being removable for failing to have valid entry documents. Lu
applied for asylum, alleging that she and her husband Lan Xiu Zhong had one child,
and she had been forced to abort a pregnancy and to use an intrauterine device (IUD).
Following a hearing in January 2002, the IJ denied asylum, withholding of removal,
and CAT relief after finding Lu not credible because her case did not “track” Zhong’s
as evinced by discrepancies between her allegations and Zhong’s--who was denied
asylum by a different IJ in 1998--and because a September 1995 family-planning
notice Lu had submitted was determined to be counterfeit and Lu had failed to present
documentation to challenge or overcome the investigation result.
We review an IJ’s findings regarding asylum eligibility under a substantial-
evidence standard and we generally defer to an IJ’s credibility finding when it is
supported by specific, cogent reasons for disbelief. See Eta-Ndu v. Gonzales, 411
F.3d 977, 982 (8th Cir. 2005). Here, the IJ’s adverse credibility determination is not
entitled to deference. See Chen v. Gonzales, Nos. 04-3730, 04-3731, 2006 WL
1235909, at *8-*9 (6th Cir. May 10, 2006) (granting petition and remanding where
IJ’s credibility determination was not supported by substantial evidence in record).
We conclude that the discrepancies noted by the IJ are not supported by the
record. See El Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003) (although IJ’s
credibility determinations are entitled to deference, that deference is conditioned on
support in record). The first discrepancy noted by the IJ was that Zhong’s testimony
on the voluntariness of Lu’s abortion was equivocal. Zhong testified that in June 1992
“when [village officials] saw [Lu’s] pregnancy . . . they said . . . you have not reached
the age yet and you haven’t had your marriage certificate done yet,” and thus Lu was
forced to undergo an abortion. Zhong was asked whether Lu had agreed to the
abortion, and he replied that she “agreed . . . because the government demanded . . .
[and] she couldn’t help it.” Lu testified that, because in June 1992 she did not have
a marriage certificate as she was only 19, she was forcibly transported to a hospital
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where she was forced to abort her pregnancy. The couple’s testimony about the
timing and reasons for the abortion is largely consistent and we do not see how
agreeing to an abortion because it is “demanded” could be viewed as anything but
involuntary. State Department reports provide support for Lu’s allegations. The
reports state that China’s minimum marriage age is 20 for females, that it is illegal for
an unmarried woman to bear a child, and that forced abortions have occurred. See
Dong v. Gonzales, 421 F.3d 573, 577-78 (7th Cir. 2005) (State Department report
provided support for Chinese petitioner’s allegation that she was forced to abort
pregnancy because she was 19 and unmarried).
The second discrepancy the IJ noted was that Lu testified that Zhong got into
a confrontation with family-planning authorities in March 1994 after the authorities
attempted to force Lu to have an IUD inserted, afterwards she went to live with
relatives, and in October Zhong left China--whereas Zhong testified that he left China
in October 1994 because he had received a notice that he was subject to sterilization.
We note that Zhong also testified, however, that in June or July 1994 Lu went to stay
with relatives because a sterilization notice was received and Lu still desired to have
another child; Zhong was unclear whether he, Lu, or his father was the subject of the
sterilization notice and both Zhong’s counsel and the IJ who presided at Zhong’s
hearing indicated that there appeared to be translation difficulties with Zhong’s
testimony. Again, although the details are different, the sequence of events is
generally consistent. The third discrepancy noted was that Lu did not mention any
trouble surrounding the birth of the couple’s first child in November 1993, yet Zhong
seemed to be suggesting that Lu had to escape a forced abortion to have the child. We
have reviewed Zhong’s testimony and the record does not support the IJ’s finding:
Zhong testified that he and Lu experienced no problems before the birth of their first
child, and it was not until afterwards, in June or July 1994, that the couple was
notified to undergo sterilization. A fourth discrepancy noted by the IJ--that it was odd
that a sterilization request would be followed by an IUD request--is based on
speculation. See Hong Zhang Cao v. Gonzales, 442 F.3d 657, 660 (8th Cir. 2006)
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(speculation and conjecture cannot form basis of adverse credibility finding); Bandari
v. INS, 227 F.3d 1160, 1167-68 (9th Cir. 2000) (IJ’s belief about policies of foreign
government amounted to nothing more than speculation and was impermissible basis
for adverse credibility finding).
The IJ also doubted Lu’s credibility because the September 1995 notice was
determined to be fabricated and Lu did not present rebuttal documentation. Although
the submission of a fraudulent document significantly undermines an alien’s
credibility, see Bropleh v. Gonzales, 428 F.3d 772, 777 (8th Cir. 2005), we cannot
affirm the IJ’s credibility finding on this basis. First, one of the two reasons given by
the Birth Control Office of Hou Yu Township (BCO) for concluding that the notice
was fabricated is that the word sterilization is misspelled; however, the translated
English verison of the notice does not contain the word “sterilization” and the subject
of the notice is IUD implantation, which is distinct from sterilization. Second, Lu
offered an explanation as to why the BCO stated that the document was fabricated--
because the Chinese government is not likely to provide her documentation of its
persecution of her--which the IJ did not address. See Pang v. Bureau of Citizenship
and Immigration Servs., No. 03-40333, 2006 WL 1174082, at *3 (2d Cir. May 3,
2006) (although IJ is not required to credit petitioner’s explanation, IJ is required to
state reasons for rejecting explanation); cf. Bolanos-Hernandez v. INS, 767 F.2d 1277,
1285 (9th Cir. 1984) (“Persecutors are hardly likely to provide their victims with
[documentation] attesting to their acts of persecution.”). Third, the IJ failed to state
what documentation Lu needed to submit to overcome the investigation result. Cf.
Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir. 2003) (in denying asylum claim for lack
of corroboration to otherwise credible applicant, IJ must identify particular pieces of
missing, relevant documentation, and documentation at issue must be reasonably
available to petitioner).
For the reasons stated, we grant the petition for review, vacate the IJ’s and
BIA’s decisions, and remand the case to the BIA for further proceedings consistent
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with this opinion. On remand the preservation of confidentiality during the
investigation of Lu’s documents, and the birth of Lu’s second child, should be
addressed.
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