Cao He Lin v. U.S. Dept. of Justice
| Citation | 428 F.3d 391 |
| Decision Date | 04 November 2005 |
| Docket Number | Docket No. 02-4814. |
| Parties | CAO HE LIN, a/k/a Je Ling Chao, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE and Attorney General Gonzales, Respondents.<SMALL><SUP>*</SUP></SMALL> |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Bruno Joseph Bembi, Hempstead, NY, for Petitioner.
Christopher J. Christie, United States Attorney for the District of New Jersey, and Peter G. O'Malley, Assistant United States Attorney, for Respondents.
Before: POOLER and B.D. PARKER, Circuit Judges, and CASTEL, District Judge.**
Cao He Lin petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming, without opinion, an order from an Immigration Judge ("IJ") denying Cao asylum, withholding of removal, and relief under the U.N. Convention Against Torture ("CAT"). As in many such cases, the pivotal issue is petitioner's credibility, an issue that the IJ determines in the first instance.
As we explain in more detail below, we will not reject the IJ's factual findings if they are supported by substantial evidence, that is, if a reasonable fact-finder would not be compelled to make contrary findings. On the other hand, the IJ must act fairly in judging credibility and in assessing the sufficiency of the evidence. For example, she may not engage in speculation or rely solely on minor inconsistencies to find an applicant incredible. And, if she intends to rely on the absence of certain corroborative evidence to hold that an applicant has not satisfied his burden of proof, she must give the applicant an opportunity to explain its absence. Where the IJ breaches such rules, we generally do not reject the IJ's findings outright, because, despite the errors, it is true in most cases that a reasonable fact-finder would not be compelled to reach an opposite conclusion.1 However, we do not ordinarily deny the petition for review because we cannot determine whether the IJ would have reached the same conclusion had she not erred. In these instances, we vacate and remand for further proceedings conducted in accord with the opinion. However, as we explain in this opinion, implicit in the rationale for remanding when an adjudicatory error leaves us uncertain as to whether the IJ or BIA would have reached the same conclusion absent the identified error or errors, is the corollary proposition that we will deny the petition for review rather than remand where (1) the adjudicator explicitly rested its conclusion on alternative grounds, one of which is sustainable; (2) the adjudicator relied so little on the error-infected aspect of its reasoning, that there is no realistic possibility of a different result on remand; or (3) the evidence so overwhelmingly supports the IJ's finding that, notwithstanding identified errors, there is no realistic possibility of a different result on remand.
Application of these principles requires us to (1) defer to the IJ's fact-finding and affirm when the fact-finding is based on specific and cogent reasons not infected by legal error; (2) remand where identified errors leave us in doubt whether the IJ would have reached the same result absent the errors; (3) affirm, despite IJ errors, when we can confidently predict that the IJ would necessarily reach the same result absent errors; and (4) grant the petition only in those extremely rare instances where substantial evidence does not exist to support the IJ's decision. Because the IJ, in judging Cao's credibility and in finding his proof insufficient, made significant errors and we do not know what her findings would have been absent these errors, we remand for further development of some, but not all of, Cao's claims.
Cao, a citizen of the People's Republic of China ("China"), illegally entered this country in November 1997. He was promptly arrested and ordered to appear for a removal proceeding. Cao conceded that he was removable but filed an application for asylum and withholding of removal, in which he claimed he had been threatened or persecuted on the basis of his political opinion.
In an accompanying statement, sworn to under penalty of perjury, Cao alleged that he married his wife, Hui Yun Lin, in May 1996 when she was 21. Governmental birth planning personnel told Lin that she had to be over 23 to obtain permission to have a child. Further, Lin was instructed to report for a pregnancy test every four months. If she were found to be pregnant, she would be forced to undergo an abortion.
Although Cao and Lin used birth control, she became pregnant in 1997. With the time for a pregnancy test fast approaching, the two went into hiding. Cao explained,
On July 4, 1997, after Cao and Lin had left their home, birth planning personnel came to their house with a notice asking for Lin. Later the birth planning personnel contacted Cao's work unit. Thereafter, Cao's unit leader "notified [Cao's] house and ordered [Cao] to bring [his] wife in to perform an abortion before August 15th." When Cao did not comply, his unit discharged him.
Subsequently, "the Birth Planning Personnel came to [Cao's] house again and forcibly detained [his] mother and threaten[ed] [his] wife to come back to have an abortion." Cao's father negotiated with the officials and paid money to have Cao's mother released.
On October 13, 1999, Cao appeared before IJ Theresa Holmes-Simmons to offer proof in support of his application. In addition to his oral testimony, which we describe below, Cao submitted several documents, including (1) a marriage certificate issued for Cao and Lin on May 16, 1996; (2) his employee's identification card; (3) baptism certificates purportedly for his wife and daughter, both showing baptism on November 19, 1998; (4) a child-bearing-age-woman's examination certificate for his wife showing that her last pregnancy exam occurred on March 4, 1997, and stating that she was not pregnant at that time; (5) an August 15, 1997, notice from Cao's work unit stating, "[s]ince comrade Cao, HeLing's wife refused to have an abortion, the factory has decided to remove his name from the rolls after discussion"; (6) a receipt dated August 25, 1999, for a birth control fine of five thousand yuan; (7) notarial certificates for Cao's daughter's birth, his birth, and his wife's birth; and (8) Congressional testimony from and the transcript of a television interview with a former birth control official in Cao's home province. Cao's sworn asylum application was also accepted for the record.
Because Cao's daughter's notarial birth certificate played an important role in the IJ's findings, we begin our summary of Cao's hearing testimony by setting out his explanation of how that document was obtained. Cao testified that he received his daughter's notarial birth certificate, which was dated September 27, 1999, from his father and that his wife had obtained the certificate after listing Cao's daughter on the household registration on August 25, 1999. Lin delayed placing her daughter on the household registration to avoid paying the family planning fine due because she had the child before she turned twenty-three. According to Cao, Lin ultimately paid the fine enabling her to place the child on the household registration and the child to attend school. The addition of the child to the household registration also required Lin to furnish a hospital certificate, which she did not have because the baby was not born in a hospital. Lin overcame this problem when her midwife verified the birth to a hospital, which then issued a certificate. With the hospital certificate in hand and the fine paid, Lin was able to add the baby to the household register. The hospital certificate and attestations of the birth from Cao's aunt and the midwife allowed issuance of the notarial certificate.
On the merits of his claim, Cao testified that he married Lin on May 16, 1996, and that they had one daughter born February 26, 1998. Cao also testified that he and his wife left their home after July 4, 1997, when—while Lin was pregnant—she received a notice to report for a pregnancy examination, but that his last day of work was July 1, 1997. The couple hid with Cao's aunt until September 1997. During that period, Cao's father told Cao that, on August 5, 1997, the leader of Cao's work unit had called to say Lin must report for an abortion. Because Lin did not comply, Cao's work unit terminated him on August 15, 1997. Cao left China in September 1997 when Lin was four months pregnant.
Cao claimed that, because he worked for a national manufacturer, he would have only been allowed one child had he remained in China. He testified that he and his wife wanted other children and that they were Catholic. Because his wife had violated the age-of-birth policy and they already had one child, Cao explained that either he or his wife would be forcibly sterilized if he returned to China. However, as long as he was not in China, his wife would not be subjected to sterilization. Asked why he had left before his wife gave birth, Cao explained: He explained that he left China because He also explained that his wife did not come because her pregnancy made it unsafe for her to make the journey. Cao admitted that he had never been beaten, tortured, or detained and that neither he nor...
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