Zi Lin Chen v. Ashcroft

• Decision Date: 30 March 2004
• Docket Number: No. 02-73673.,02-73673.
• Citation: 362 F.3d 611
• Parties: ZI LIN CHEN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

362 F.3d 611

ZI LIN CHEN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73673.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2004.

Filed March 30, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James B. Macy, Sacramento, CA, for the petitioner.

Margaret K. Taylor, United States Department of Justice, Civil Division, Washington, DC, for the respondent.

On Petition for Review of a Decision of the Board of Immigration Appeals. Agency No A79-354-114.

Before: ALARCÓN, BEEZER, and FLETCHER, Circuit Judges.

ALARCÓN, Circuit Judge:

Zi Lin Chen petitions for review of the Board of Immigration Appeals's ("BIA") decision to deny her application for asylum and withholding of removal under 8 U.S.C. § 1231(b)(3)(A), and Article 3 of the United Nations' Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"), opened for signature Feb. 4, 1985, S. Treaty Doc. No. 100-20, at 20 (1988), 23 I.L.M. 1027, 1028 (1984). We have jurisdiction over this timely filed petition under 8 U.S.C. § 1252(a) and 8 C.F.R § 208.18(e). We grant the petition for review and hold that the Immigration Judge's ("IJ") adverse credibility findings were not supported by substantial evidence. We remand for further proceedings to determine whether Mrs. Chen has established eligibility for asylum, withholding of removal, and relief under the Convention Against Torture in light of her credible testimony.

I

Mrs. Chen entered this country from China on June 8, 2001, when she was intercepted and detained at San Francisco International Airport. She is a thirty-three-year-old citizen of the People's Republic of China. Mrs. Chen was born in Ho Yi Village, Nian Chon County in Fujian Province on September 25, 1971. She married Chun Yu Zheng on September 26, 1991 when she was twenty years old.

On her application for asylum, Mrs. Chen alleged that she has a nine-year-old son living in China, and that she was pregnant with her second child. She indicated that she and her husband had been fined for an unauthorized pregnancy by Chinese family planning authorities after the birth of their first son. She also alleged that she was unable to obtain permission to have a second child in China because of her "city residency." Her asylum application further states that she would be "forced to have an abortion and sterilization" and would face additional fines for having a second child if she returned to China. In addition, she noted that her second child would be unable to obtain social, health, and educational benefits pursuant to China's "coercive family planning" policies.

Her application also stated that her husband was a member of the Falun Gong religious organization. She asserted that she and her husband had been subject to "harassment" by Chinese government authorities as a result of his involvement in the Falun Gong movement.

At a hearing conducted on August 16, 2001, before an Immigration Judge ("IJ"), Mrs. Chen testified as follows: Her son, Zheng Shi Feng, was born on October 13, 1992. The pregnancy was unplanned. Despite being legally married, the Chens failed to obtain permission for the first pregnancy from state family planning authorities. When questioned as to why she failed to alert Chinese family planning authorities that she was pregnant, Mrs. Chen stated that: "At the time my mother was ill and I didn't really realize that I was pregnant at the time and I went down to serve my mom quite often because she, her illness really required a lot of attention from me and I never thought I was pregnant and did not go to apply for this birth certificate at the time."

After their son was born, the Chens took their son to be registered with Chinese government authorities. They were assessed a fine of 5000 Renminbi ("RMB") for having failed to obtain permission to conceive. In addition, Mrs. Chen was involuntarily fitted with an IUD and required to undergo quarterly pregnancy check-ups. The Chens were unable to pay the 5000 RMB fine in 1992. Mr. Chen was unemployed at the time of their first son's birth, and did "little odd jobs" in order to make some money. It took Mrs. Chen and her husband three years to pay the fine.¹ Mrs. Chen provided the court with a copy of a 1995 receipt for the payment of the fine. It was received into evidence without an objection.

Mrs. Chen was six months pregnant at the time of her testimony. She and her husband had not obtained permission from Chinese family planning authorities to have a second child. She testified that if she were to be removed to return to China, the government would "take me away to have the child aborted, penalize me and also sterilize me." She further stated: "I know absolutely very well that when I arrived [sic] in Chinese territory that the fetus of the child will be aborted and also I will be penalized.... This is the Chinese one child policy. They do not allow you to have a second child."

Mrs. Chen's husband, Zheng Chun Yu, was a member of the Falun Gong movement in China. He fled from China to Canada as a result of pressure from the Chinese government. Mrs. Chen, however, was not able to respond to more detailed questions about her husband's religious activities because he did not share them with her.

Mrs. Chen has a younger brother who lives in the United States, but she does not know where. "I only know he is quite far away from here, but I don't understand English, so I don't even know what, where that location is." She stated that her brother was unable to come to the hearing because he lived far away and was needed at his store.

The IJ found that Mrs. Chen's testimony was not credible. The IJ reasoned as follows: "[T]he Court cannot even accept that the first alleged child was ever born, and therefore, the Court cannot, based upon the fact that [Mrs. Chen] is currently pregnant, come to the conclusion that [she] would automatically be considered in violation of the family planning one child policy." Thus, the IJ made no finding regarding whether Mrs. Chen had a well-founded fear that she faced forcible abortion, involuntary sterilization, or other persecution for becoming pregnant again. Based solely on his credibility findings, the IJ ruled that she was not eligible for asylum or entitled to withholding of removal. The IJ further concluded that it was not clear that Mrs. Chen would be incarcerated or subject to torture if she were returned to China. The BIA adopted the IJ's decision without opinion and ordered Mrs. Chen removed and deported to China. Mrs. Chen timely filed a petition for review of the BIA's decision.

II

Mrs. Chen contends that she was persecuted in China when she was fined for an unauthorized pregnancy, fitted with an unwanted IUD birth control device, and subjected to regular pregnancy examinations. Additionally, she fears that she will be subject to a forced abortion and/or sterilization if she is returned to China. "We review the BIA's decision that an alien has not established eligibility for asylum to determine whether it is supported by substantial evidence." Wang v. Ashcroft, 341 F.3d 1015, 1019-20 (9th Cir.2003). Where the BIA has adopted the IJ's reasoning without opinion, we review the IJ's decision under the same standard. Id. at 1020. The substantial evidence standard requires this court to grant a petition only if the evidence in the record is so strong that it compels a contrary conclusion. Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir.2003); see also Immigration and Nationality Act ("INA") § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B) ("the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.").

III

To establish eligibility for asylum, an applicant is required to demonstrate that he or she is a "refugee" within the meaning of the Immigration and Naturalization Act. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The Attorney General has the discretion to grant asylum to aliens who qualify as refugees. See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1) ("The Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Attorney General under this section if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A).") (emphasis added). The regulation defines a refugee as "any person who is ... unable or 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." INA § 101(a)(42)(A), 8 U.S.C § 1101(a)(42)(A). In 1989, in response to a BIA decision holding that a person, who was subject to China's one-child policy, did not qualify for asylum or withholding of removal on that basis alone, In re Chang, 20 I. & N. Dec 38, 1989 WL 247513 (B.I.A.1989), Congress added the following language to the definition of the term "refugee":

[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, 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.

8 U.S.C. § 1101(a)(42) (emphasis added).

To establish eligibility for withholding of removal, an applicant must meet a stricter standard of proof than is required for asylum. Ernesto Navas v. INS, 217 F.3d 646, 655 (9th Cir.2000). The applicant must establish a "clear probability" that he or she would be...