Ming Shi Xue v. Board of Immigration Appeals

• Decision Date: 21 February 2006
• Docket Number: Docket No. 04-0374 AG.
• Citation: 439 F.3d 111
• Parties: MING SHI XUE, Petitioner, v. BOARD OF IMMIGRATION APPEALS, U.S. Department of Justice, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

439 F.3d 111

MING SHI XUE, Petitioner, v. BOARD OF IMMIGRATION APPEALS, U.S. Department of Justice, Respondents.

Docket No. 04-0374 AG.

United States Court of Appeals, Second Circuit.

Argued: September 26, 2005.

Decided: February 21, 2006.

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Henry Zhang, Zhang & Associates P.C., New York, NY, for Petitioner.

Neeli Ben-David, Assistant United States Attorney, for David E. Nahmias, United States Attorney for the District of Georgia, Atlanta, GA, for Respondents.

Before: CALABRESI, KATZMANN, and B.D. PARKER, Circuit Judges.

CALABRESI, Circuit Judge.

Asylum petitions of aliens seeking refuge from alleged persecution are among the hardest cases faced by our courts. They are not games. And, despite their volume, these suits are not to be disposed of improvidently, or without the care and judicial attention — by immigration judges, in the first instance, and by federal judges, on appeal —to which all litigants are entitled.¹ We should not forget, after all, what is at stake. For each time we wrongly deny a meritorious asylum application, concluding that an immigrant's story is fabricated when, in fact, it is real, we risk condemning an individual to persecution. Whether the danger is of religious discrimination, extrajudicial punishment, forced abortion or involuntary sterilization, physical torture or banishment, we must always remember the toll that is paid if and when we err.²

Yet, at the same time, the nature of asylum makes it possible (and in some contexts, rather easy) for applicants to submit false or exaggerated claims. And there is no simple way to sift through and separate dishonest asylum petitions from bona fide ones. Under the circumstances, it is not surprising that the position of overburdened immigration judges and overworked courts has become a matter of wide concern.³ It is bound to be such when trivial mistakes can unwittingly lead to flawed decisions with grave consequences.

It is with firm recognition of these realities that our court decided in Majidi v. Gonzales, 430 F.3d 77 (2d Cir.2005), that, where an asylum seeker has given "dramatically different" accounts of his alleged persecution, an immigration judge ("IJ") may properly find him incredible "without soliciting from the applicant an explanation for the inconsistency." Majidi, 430 F.3d at 81. To hold, as we did in Majidi, that inconsistencies that are "dramatic" — that is, sufficiently conspicuous and central to the applicant's claim as to be self-evident — need not be affirmatively announced is, we reaffirm, both right and wise. It is equally true, however, that when an inconsistency is not self-evident, an IJ may not rely on it to support a credibility determination without first bringing the perceived discrepancy to the alien's attention, thereby giving the alien an opportunity to address and perhaps reconcile the seeming inconsistency, to the IJ's satisfaction, at the least.⁴

Because, in the case before us, the IJ's credibility ruling depended on putative discrepancies that were not obvious and were not discussed at any point during the hearing, we grant the petition for review, and we vacate and remand the case for further proceedings consistent with this decision.

BACKGROUND

A native of the Fujian province of China, petitioner Ming Shi Xue (hereinafter "petitioner" or "Xue") left his homeland in June 2000 and entered the United States in May 2001.⁵ Within a year of his arrival in America, petitioner filed for asylum on the basis of the coercive family planning policies to which, principally, his wife had been subjected while Xue was still in China.

I. Xue's Asylum Application

In April 2002, petitioner submitted an I-589 application, which, along with routine background and biographical information, included a page-long addendum that described the nature of Xue's asylum claim. In the addendum, petitioner stated that he married his wife, Yu Lan Chen ("Chen"), in a traditional ceremony in January 1983. Nearly a year later, they registered their marriage formally, just in time for the birth of their first child (a boy) in late January 1984. Xue's statement suggested that news of their first son prompted family planning officials from his village to force his wife both to wear an intrauterine device ("IUD") and to attend IUD checkups regularly.

Petitioner and his wife were apparently undeterred by these restrictions. They wanted additional children, ostensibly because, as Xue's I-589 application indicated, their family was involved in farming, and they needed "labor force to do the farming work." As a result, they obtained the assistance of a doctor who secretly removed Chen's IUD. After the procedure, Xue's wife became pregnant and went into hiding at her mother's home. During that time, she gave birth to a second son. But, according to petitioner's statement, since they were not permitted to register the child, the couple gave the child away to a fellow villager.

Petitioner's application also explained that Xue and his wife then "wanted very much to have a girl" because their first two children had been boys. Chen became pregnant for a third time in June 1986. To avoid discovery, Chen told the school authority (for whom she worked as a teacher) that she required time off to tend to her health. Again, she went into hiding and had her third child — this time, a daughter — in March 1987. Xue's statement asserted that his wife returned home one month after the birth of their third child, and resumed work after obtaining a babysitter to care for their daughter.

In his I-589 statement, petitioner claimed that one month after his wife's return, someone relayed to government officials the fact that he and his wife had three children. As a result, four local officials forced Xue's wife to go to Longtian Township Hospital where she was reportedly sterilized. The application contended that Chen was also fired from her position as a teacher for violating the country's family planning policies. In addition, petitioner was required to pay an enrollment fee to allow their daughter to attend school because she qualified as an unauthorized "extra birth." The closing paragraph of the addendum posited that Xue feared imprisonment and fines in China for his family's violation of the country's population control policies.

II. Xue's Asylum Hearing

In due course, petitioner was placed in removal proceedings and given an asylum hearing. On September 3, 2002, petitioner testified before immigration judge Joseph A. Russelburg ("IJ"). At the outset, Xue confirmed that he had prepared his I-589 application with the aid of counsel, and that he understood and stood by its contents. During direct examination, petitioner essentially repeated the narrative he had told in his asylum application.⁶ Xue explained that his wife had been forced to have an IUD insertion after the birth of their first child. They had paid a private doctor to remove the IUD, however, and, shortly thereafter, Chen became pregnant for a second time. She obtained a leave of absence from the school at which she taught, and went into hiding at her mother's home. According to petitioner, Chen reemerged from hiding only after their second child was born. Although she subsequently returned to her job, Xue stated that, in order for his wife to retain her employment, they could not officially register their second child. As a result, that son was left to someone else's care. Petitioner also reminded the court that he and his wife had their third child in March 1987, using the same approach they had taken to obscure the birth of their second child (private removal of the IUD, a leave of absence from Chen's employer, hiding at her mother's home until the child's birth, and afterwards, a return to her teaching post). Xue reaffirmed that his wife had been forcibly sterilized and fired from her job once family planning officials learned of their three children. Finally, petitioner again claimed that they had been compelled to pay a fee each semester so that their daughter could attend school.

During cross-examination, the lawyer for the Immigration and Naturalization Service ("INS") notably failed to raise any concerns that ultimately figured in the IJ's decision denying Xue's claim. Twice, in fact, the IJ intervened to chide the government for lines of questioning that apparently were not "useful to the Court." On one of these occasions, the government's lawyer had begun to quiz petitioner about certain documents, seemingly testing whether Xue could recall their contents from memory. The IJ disapproved: "Counsel, I think you're wasting my time and wasting everybody else's time. Why don't you move on to something a little bit more relevant and fertile..." In response, the lawyer indicated that he had no other questions and promptly ended his otherwise uneventful examination.

III. The Immigration Judge's Decision

At the end of the hearing, the IJ issued an oral opinion denying asylum, withholding of deportation, and relief under the Convention Against Torture. The IJ's decision rested on an adverse credibility finding which, in turn, was based on three putative inconsistencies. First, the IJ said that petitioner's claim that he and his wife had wanted a second child because they needed help with their farming work — an assertion corroborated by a statement submitted by Xue's wife — was belied by the couple's decision to give the child to another family.⁷ Second, the IJ did not find credible Xue's testimony that his wife was able to hide her pregnancies either from the government — given petitioner's testimony that his wife was subjected to regular checkups — or from her employer from whom she supposedly obtained two leaves of absence: "[I]t appears to the Court that [the] claim that [petitioner's wife] secretly had the IUD removed, was able to remain in hiding through the entire term of her pregnancy and delivery, and returned to her job with no apparent...