Li Fang Lin v. Mukasey

• Decision Date: 20 February 2008
• Docket Number: No. 06-1456.,06-1456.
• Citation: 517 F.3d 685
• Parties: LI FANG LIN, a/k/a Lifang Lin, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

517 F.3d 685

LI FANG LIN, a/k/a Lifang Lin, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-1456.

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2007.

Decided: February 20, 2008.

ARGUED:

Yee Ling Poon, New York, NY, for Petitioner. Mona Maria Yousif, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and Louise W. FLANAGAN, Chief United States District Judge for the Eastern District of North Carolina, sitting by designation.

Petition for review granted; vacated and remanded by published opinion. Chief Judge WILLIAMS wrote the majority opinion, in which Judge FLANAGAN concurred. Judge TRAXLER wrote a separate dissenting opinion.

OPINION

WILLIAMS, Chief Judge:

Li Fang Lin, a citizen of the People's Republic of China, petitions for review of a final order of the Board of Immigration Appeals ("BIA") denying her applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). Lin's applications for asylum and withholding of removal stem from the forced implantation of an intrauterine contraceptive device ("IUD") by Chinese officials after the birth of her first child. Her application for protection under the CAT arises from her fear of detention and torture as a result of leaving China illegally with the assistance of a snakehead.¹ The BIA dismissed Lin's asylum claim, concluding that the forced IUD insertion was not persecution under the Immigration and Nationality Act ("INA"), 8 U.S.C.A. § 1101 et seq. (West 2005 & Supp.2007), and that any fear Lin had of forced sterilization in the future was unreasonable. Based on its finding that Lin failed to satisfy the lower burden of proof required for asylum, the BIA also dismissed her withholding of removal and CAT claims. For the following reasons, we grant Lin's petition for review on all claims and remand for further proceedings consistent with this opinion.

I.

A.

When, as here, the BIA does not expressly adopt any portion of the Immigration Judge's ("IJ") decision, we review only the findings and order of the BIA, not those of the IJ. Huaman-Cornelio v. B.I.A., 979 F.2d 995, 999 (4th Cir.1992).

The BIA expressly declined to address the IJ's determination that Lin's testimony was incredible.² We have not yet had occasion to answer the question of how we should evaluate the petitioner's testimony in such circumstances. In similar situations, our sister circuits have presumed the petitioner to be credible and have reviewed only whether the petitioner satisfied the burden of proof. See Ying Zheng v. Gonzales, 497 F.3d 201, 203 (2d Cir.2007) ("[B]ecause the BIA specifically declined to address the IJ's adverse credibility determination, we must evaluate [Petitioner]'s claims on the presumption that she was credible and review only the burden of proof finding."); see also Zhen Hua Li v. Att'y Gen., 400 F.3d 157, 163 (3d Cir.2005) ("[W]here the BIA makes no findings on the credibility issue, we must proceed as if [petitioner's] testimony were credible and determine whether the BIA's decision is supported by substantial evidence in the face of the assumed (but not determined) credibility.") (internal quotation marks and citations omitted); Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir. 2005) (same). We agree with the approach of our sister circuits and adopt it in this case. We therefore presume that the testimony of Lin, the only witness at her removal hearing, was credible.

B.

Lin was a lifelong resident of the Fujian Province on the southeast coast of China. Fujian Province "has been known for being a place where the [one-child] policy has been enforced with special vigor" — a reputation that persists still today.³ (J.A. at 254.) Local officials in Fujian Province have employed unspecified measures to deal with out-of-plan pregnancies, and, notwithstanding a purported national policy to the contrary, forced sterilization and abortion are prevalent in rural areas. U.S. Dep't of State Country Reports on Human Rights Practices for 2006 (China), available at http://www.state.gov/g/drl/rls/ hrrpt/2006/78771.htm (released March 6, 2007).⁴ In fact, in 2006, officials in Fujian Province "reportedly forcibly sterilized women." Id.

Lin married her husband Li Wei on September 28, 1998, when she was 21 years old. The couple lived with Li Wei's parents in Nan Seng village, also within Fujian Province. Lin gave birth to the couple's first child, a girl, on October 20, 1999.

In January 2000, about three months after the birth of Lin's and Li Wei's daughter, the local family-planning cadre, acting pursuant to China's "one-child" policy but against Lin's will, fitted her with an IUD to prevent further pregnancies. The record does not provide details about the circumstances of the IUD insertion because the IJ declined to hear Lin's testimony about the IUD insertion procedure. At the hearing, Lin's counsel asked her to "describe . . . the procedure of the IUD insertion." (J.A. at 114.) Before Lin could respond, the IJ instructed, "That's okay, counsel. You can move on to the next question." (J.A. at 114.)

Despite her awareness of the Chinese Government's family-planning policy, Lin desperately wanted to give birth to a boy. The reasons were many. She and her husband wanted a boy to carry on the family name, to help care for them when they became old and could no longer care for themselves, and for ancestral worship purposes after they died. The cadre, however, told Lin that she could not have another child for five years, and Lin feared that the cadre's policy "would change for the worse," (J.A. at 338), requiring her to use the IUD for an even longer period. Thus, after an IUD inspection in January 2001, Lin had the IUD secretly removed by a private doctor without the permission of the family-planning cadre. Shortly thereafter, in April 2001, Lin became pregnant with a second child. Upon learning of her pregnancy, Lin moved to her aunt's home in Bian Lan village, roughly a two-hour trip by car from Lin's former home in Nan Seng, in an effort to conceal the pregnancy from the local family-planning officials. On January 8, 2002, Lin, still in hiding at her aunt's house, gave birth to a second daughter.

Because Lin did not attend her regularly scheduled checkups, the cadre began to look for her in Nan Seng. On several occasions, the cadre visited her in-laws' home in the village. Lin's husband told the cadre that Lin had gone to visit her relatives, but the cadre did not believe him and told him that he would be in trouble if Lin was found.

Local Chinese authorities in Lin's home village learned about the existence of the couple's second child when Lin's husband brought the baby to Nan Seng to visit his parents in March 2003. Lin testified that her husband took the baby to Nan Seng rather than having her in-laws visit the baby in Bian Lan because it was too difficult for her aging in-laws to make the trip over rural roads and because her in-laws felt that it was inappropriate under Chinese customs for them to visit the baby at the house of a relative on Lin's side of the family.⁵

Immediately after Lin's husband and daughter left Nan Seng, the family-planning cadre visited Lin's in-laws' home. They claimed that they knew that Lin had a second child and informed her in-laws that "if [Lin] [came] back, if the government found her, she [would] be sterilized." (J.A. at 114.) The cadre threatened to destroy Lin's in-law's house and to impose fines if Lin did not report for sterilization. Lin departed China in May 2003, shortly after her husband had taken the baby to visit his parents in Nan Seng. Lin's husband has been in hiding since her departure, living with their two children at her aunt's home in Bian Lan and working in her aunt's garment factory.

In addition to her fear of forced sterilization, Lin also expressed fear that she would be fined, beaten, jailed, and/or tortured upon return to China because she came to the United States with the help of a snakehead.⁶ Lin and her husband paid a snakehead approximately $8,000 to smuggle Lin into the United States. After the birth of her second child and with the snakehead's help, she obtained a passport from the Chinese Government in her own name. Lin stated that she had no trouble getting the passport because she got it "far away from [her] hometown." (J.A. at 120.) Lin left China through Fujian Province's Jiang Dong airport — an airport that is located a considerable distance from her hometown — without difficulty because only the local village officials were aware of her second child and wanted to find her. Lin eventually disposed of the Chinese passport in Malaysia, where she received a Hong Kong passport from her uncle.

C.

On or about June 4, 2003, Lin attempted to enter the United States at or near the Miami International Airport without valid entry documents. The Immigration and Naturalization Service ("INS"), which has now been reorganized within the Department of Homeland Security ("DHS"), took Lin into custody at the airport. On June 10, 2003, DHS issued Lin a Notice to Appear, charging her with being subject to removal under 8 U.S.C.A. § 1182(a)(7)(A)(i)(I) (West 2005 & Supp. 2007).⁷ Lin conceded removability and applied for asylum, withholding of removal, and protection under CAT.

On June 10, 2004, an IJ conducted a removal hearing in which Lin was the only witness. At the conclusion of Lin's testimony, the IJ, in an oral decision, found that Lin "ha[d] failed to meet her burden that she has suffered past persecution or that she has a well-founded fear of future persecution should s...