Yang v. Gonzales, Docket No. 03-4973-ag.

• Citation: 478 F.3d 133
• Decision Date: 22 February 2007
• Docket Number: Docket No. 03-4973-ag.
• Parties: Yi Long YANG, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

478 F.3d 133

Yi Long YANG, Petitioner, v. Alberto R. GONZALES,¹ United States Attorney General, Respondent.

Docket No. 03-4973-ag.

United States Court of Appeals, Second Circuit.

Submitted: November 1, 2006.

Decided: February 22, 2007.

Richard Kulics, Immigration Law Center, Birmingham, MI, for Petitioner.

Robert Clark Corrente, United States Attorney for the District of Rhode Island, Robin E. Feder, Assistant United States Attorney, Providence, RI, for Respondent.

Before MINER, POOLER, and KATZMANN, Circuit Judges.

MINER, Circuit Judge.

In this proceeding Yi Long Yang petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the decision of Immigration Judge ("IJ") Ira Sandron denying Yang's application for asylum, withholding of removal and relief under the Convention Against Torture. In re Yi Long Yang, No. A. 76 506 523 (B.I.A. Apr. 29, 2003), aff'g No. A 76 506 523 (Immig. Ct. N.Y. City Aug. 27, 2001). Yang is a native of China whose application is based on opposition to China's coercive population control policy. The IJ determined that Yang, who was the only witness to testify, did not give credible testimony at his hearing and that he therefore failed to carry the necessary burden of proof. In affirming the IJ and dismissing the appeal, the BIA addressed, and found wanting, Yang's arguments that he had ineffective assistance of counsel; that he was prejudiced by the fact that the last page of the transcript of the IJ's oral decision was missing; and that his testimony was not credible and therefore that his burden of proof was not sustained.

For the reasons that follow, we remand the case to the BIA for further consideration.

BACKGROUND

I. Application for Asylum

In his formal application for asylum and withholding of removal, Yang, apparently assisted by his attorney, Joseph F. Muto, Esq., subscribed to the following statement:

My name is Yi Long Yang, and I am a twenty-five years old male native of the People's Republic of China. I received eight years of education in China, and was employed in a bag factory. I fled China, and came to the United States in July 2000, as I opposed China's coercive population control policy.

Although I was not married in China, I had a girlfriend who I was intimate with. In 1997, she became pregnant and we applied for a marriage license. However, our application was rejected as my girlfriend was underage. The officials suspected that she may be pregnant, and ordered her to submit to a gynecological examination. She was taken forcibly for the examination, and upon verification of her pregnancy she was forced to submit to an involuntary abortion. Subsequent to the abortion, we were forced to pay a 3,000RMB fine. I was angry with the officials, and I became involved in a verbal altercation with them. They wanted to arrest me, but I was able to escape. I then fled China. However, I was apprehended and returned. I was incarcerated for one year, and forced to pay a 15,000RMB fine for attempting to flee China. Subsequent to my release, I was publicly criticized by the government. Finally, in May 2000, I was able to successfully escape from China.

If I am forced to return to China, I will be imprisoned and fined as I violated and opposed China's coercive population control policy. As a second time offender for illegally exiting China, I will face an enhanced period of incarceration. This punishment will be so disproportionate to the offense so as to rise to the level of persecution.

The application included a statement that Yang was employed as a worker at the Liangji Bag Factory from October 1995 to April 2000.

II. Testimony at the Hearing

Yang, represented by Attorney Muto, was the sole witness to testify at the immigration hearing conducted by the IJ. He testified that he and his girlfriend, Yun Qing Weng, went to the office of his village government on August 3, 1997 to obtain a marriage certificate. Weng was pregnant at that time, and Yang stated that it was necessary for them to marry, "[o]therwise our future child wouldn't get a household registration." At the village office, following a "checkup," government officials discovered that Weng was pregnant and immediately took her to the village hospital, where an involuntary abortion was performed. No marriage certificate was issued, and Yang testified that a fine of 3,000RMB was imposed and that he did not pay the fine. He stated that, on the same day, he had a "fight" with the government officials because "they give us fine and they didn't allowed us to register for our marriage and they want to force my girlfriend to undergo abortion." Yang told the officials that both he and his girlfriend were of legal age to register for marriage but "they said according to birth control policy nobody should get pregnant before . . . they get official marriage certificate."

Yang testified that the officials forced his girlfriend into a van to take her to the hospital and that he wanted to go with her, but "they [were] pushing me away, they wouldn't let me get on the van. And then we had some fight. And they want to arrest me and then I escaped." The government officials had informed Yang that he would be arrested, causing him to run away to a relative's house to hide. Yang testified that he never returned to his job at the bag factory and left China in November of 1997. According to Yang, his subsequent travels took him to Cambodia, then to Guatemala, and ultimately to Mexico, where he was arrested and deported to China in July of 1998.

Once back in China, Yang was arrested, accused of "illegal exits," penalized by imprisonment for one year, and fined. He testified that he did not pay the fine of 15,000RMB that was imposed "because if I didn't pay the fine they give me sentence for one year." Yang testified that he did not receive any documentation evidencing the imposition of these penalties. After his release from prison in July of 1999, Yang again sought, and was refused, permission to marry. He left China for the second time on May 18, 2000 and found his way to the United States on or about July 8, 2000. Submitted in evidence as an exhibit at the hearing was a letter dated November 7, 2000 from Weng, confirming her forced abortion and substantially corroborating Yang's testimony. In his testimony, Yang stated that an abortion certificate was issued to his girlfriend by the hospital, that a relative of his brought it to the United States, and that it was with his lawyer.

During the course of the hearing, the IJ inquired about apparent discrepancies between Yang's asylum application and his testimony. At one point, the IJ noted that the application indicated that Yang was employed in a bag factory from October of 1995 until April of 2000 and asked whether that was correct in light of Yang's testimony. Yang repeated his prior testimony that he stopped working at the factory in July of 1997. The IJ then remarked: "The Court notes [that the asylum application] was prepared with the assistance of current counsel." On another occasion, the IJ made a comment in the form of a question to Yang, noting that the asylum application stated that Yang "lived in Guantu (phonetic sp.), Lianjiang from October of 1995 until April of 2000, that's also another mistake in the application that you filed with the Court with the assistance of your attorney?" The IJ also relied upon the discrepancy between Yang's application and his testimony when he cut off counsel's inquiry about prison conditions during Yang's confinement: "There's nothing in his application that talks about any mistreatment or any problems with prison conditions, so if he talks about them now, . . . it's an inconsistency with his application."

The IJ made further reference to counsel during the course of his inquiry as to the absence of documents showing deportation from Mexico. When asked why he did not provide the documents to his attorney, Yang replied: "I didn't know." The IJ then commented, apparently in an aside to Mr. Muto:

Well counsel, we'll assume that you and your law office requested [Yang] to provide any document that you considered relevant to his claim. You have filed several. So we'll assume that your office acted competently in asking him to provide any documentation of the underlying facts of this claim.

III. Decision of the Immigration Judge

In an oral decision issued on August 27, 2001, the IJ concluded that "[s]ince [Yang] was not credible, it follows that any kind of application for relief must fail, including asylum, withholding of removal, and relief under the Convention against Torture." In giving his reasons for concluding that Yang lacked credibility, the IJ noted a "major inconsistency" between Yang's testimony that he stopped working for the bag company in August of 1997 and had no further employment in China, and his asylum application statement that he worked for the bag company from October of 1995 until April of 2000. The IJ also noted a discrepancy between the asylum application statement that Yang's girlfriend was ordered to take a pregnancy test, and Yang's testimony that village officials "saw that she was pregnant" and sent her for an abortion.

Recognizing yet another inconsistency between Yang's application and his testimony, the IJ observed that Yang stated in his application that he paid fines of 3,000RMB and 15,000RMB, but testified that he never paid a fine of any kind. The IJ observed that "at the end of cross-examination, [Yang] testified that the reason he went to jail or a detention facility for the year was because he would not pay or could not pay the 15,000RMB fine, again contrary to his asylum application." (Emphasis supplied).

The IJ identified another credibility problem in the fact that Yang provided no documentation to establish that he was out of China from November of 1997 to July of 1998, provided no documentation of his deportation from Mexico, and "could not give a...