552 F.3d 277 (2nd Cir. 2009), 07-1073, Zheng v. Mukasey

Docket Nº:Docket 07-1073-ag.
Citation:552 F.3d 277
Party Name:Dong Zhong ZHENG, Petitioner, v. Michael B. MUKASEY, Attorney General,[1] Respondent.
Case Date:January 13, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 277

552 F.3d 277 (2nd Cir. 2009)

Dong Zhong ZHENG, Petitioner,


Michael B. MUKASEY, Attorney General,1 Respondent.

Docket No. 07-1073-ag.

United States Court of Appeals, Second Circuit.

January 13, 2009

Argued: April 24, 2008.

Page 278

[Copyrighted Material Omitted]

Page 279

Troy Nader Moslemi, Miami, FL (Lin Li, Law Office of Fengling Liu, New York, N.Y., on the brief), for Petitioner.

Benjamin J. Zeitlin, Trial Attorney, Office of Immigration Litigation (Greg D. Mack, Senior Litigation Counsel, Peter D. Keisler, Asst. Attorney General, on the brief), U.S. Department of Justice, Washington, D.C., for Respondent.

Before KEARSE and POOLER, Circuit Judges, and COTE, District Judge. 2

POOLER, Circuit Judge:

Dong Zhong Zheng has timely petitioned this Court, pursuant to Section 242 of the Immigration and Nationality Act (" INA" ), as amended 8 U.S.C. § 1252, for review of the February 22, 2007 decision of the Board of Immigration Appeals (" BIA" ), which affirmed Immigration Judge Sandy K. Hom's (" the IJ" ) July 20, 2005 order denying Zheng's applications for asylum, for withholding of removal, and for relief under the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (" CAT" ), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (1988). We conclude that errors committed by the IJ, as affirmed by the BIA, require remand of Zheng's applications for further proceedings consistent with this opinion.


According to his Form I-589, Application for Asylum and for Withholding of Removal, filed March 18, 2005, Dong Zhong Zheng is a citizen of the People's Republic of China, born on September 20, 1968, in the city of Lianjiang, which is located in Fujian Province. He married Fang Zhu Zhang on March 26, 1992. The couple have one child, a son, Hong Xian Zheng, born on March 28, 1993.

Zheng's application asserts that he entered the United States illegally, at Hildago, Texas, on December 15, 2004. On December 22, 2004, the United States Immigration and Customs Enforcement issued a Notice to Appear to Zheng, charging him with being a removable alien pursuant to INA Section 212(a)(6)(A)(i). As will later become important, the Notice to Appear, which is signed by Terry Stewart, a Supervisory Border Patrol Agent, specifically asserts that Zheng " arrived in the United States at or near Hildago, Texas, on or about December 15, 2004." In his initial appearance before the agency, on March 18, 2005, Zheng admitted to the truth of the allegations set forth in the Notice to Appear.

According to a personal statement attached to his asylum application, Zheng asserts that he " came to the United States

Page 280

because I had been persecuted in China under its family planning policy." Specifically, this assertion arises from the desire of Zheng and his wife to have another child after the birth of their son, in 1993. Zheng elaborates in the personal statement as follows:

However, the local government policy of the time prescribed that there must be an interval of no less than six years before a second child could be born, regardless of the first child's gender. After the birth of our first child, my wife was inserted an IUD against her will and was ordered to go for a gynecological examination on a regular basis. Although we would like very much to have another child, we dared not violate the local government policy. We had to wait out the time until we would be permitted to have a second child.

So my wife got pregnant again in 1999. Little did we expect it, however, that the local government was to make changes to its family planning policy during the time of my wife's pregnancy. The new policy laid down that no more childbirth was permitted if the first child was male. The Family Planning Office ordered my wife to have an abortion surgery, but she did not go for it. In October 1999, my wife was taken to the clinic by force for an abortion. At the time, I happened to be away working. As soon as I got wind of it, I came back on the run and attempted to reason with the man in charge of the Family Planning Office.... I then accused him of being inhumane and cursed that he was to have no offspring. He became angry ... and swore that he would have me sent to jail. After I left his house, I went away to work. For the following several years, I dared not return to my home village in broad daylight. I would only tiptoe home when it was time to celebrate a new year or a festival, because my wife had warned me that the head of the Family Planning Office had pledged to arrest me ... the moment he saw me back.3

These claims are further explained in a letter, and accompanying English translation, dated " 2005.6.1," composed by Zheng's wife. She avers that she " was forced to wear an IUD three months after the birth of our child [in 1993]. I was requested to go to the township government every four months to have my IUD and possible pregnancy detected." The letter continues:

With Heaven's blessing, I got pregnant again in May 1999.... On October 27, 1999, several Family Planning officials broke into our home and alleged that I had violated the national family planning policy so that an abortion must be performed on me right away.... They cruelly dragged me into a vehicle and drove me to Lianjaing Family Planning Service Center where a nurse immediately shot me an abortion injection. After a few hours, I felt a sharp pain in the belly. About an hour after that, my unborn child was thus ruthless killed by them. This abortion had inflicted much harm on me both mentally and physically. Not only have I lost my child forever, but also I have been suffering a chronical backache and I had to take medications and receive injections. At the time, my husband was away at a job. When he heard what had happened, he was furious. He immediately came back to reason with the Family Planning Officials.... They threatened to send my

Page 281

husband to the labor penitentiary and even have him sentenced to prison. My husband got into a panic and took off, not even daring to come back home. Every now and then, the local policemen would come to my house for my husband, who forced my husband into a fugitive life, roaming every where but his home, except for the times of the annual festivals; he would secretly come home for a temporary reunion with us.

The record also contains a document, and accompanying translation, bearing the stamp of the " Family Planning office of Jiangnan, Lianjiang County," which reflects that Zheng's wife had an abortion on October 27, 1999.

Zheng took up residence in Jackson Heights, New York and his case was transferred from Texas to the Immigration Court in New York. Petitioner's Brief at 3. A hearing on Zheng's asylum application was held on July 20, 2005 at which Zheng was represented by counsel.4 The only witness at the hearing was Zheng, who testified through a Mandarin Chinese interpreter.

After brief questioning by his counsel, Zheng was examined by Government counsel, who was particularly interested in a " Household Register" Zheng had submitted in support of his application. The following colloquy, as recorded in the hearing transcript, occurred:

Q. Now according to your testimony were in hiding from October of 1999 until you left China, is that right?

A. Yes.

Q. And now the household registration in between that your household was registered in November of 2001 list you as the head of the household (indiscernible) village?

A. Yes, because before we belong to (indiscernible) village. And then later they separate that village and they issued a new household booklet to us.

Q. Now where does your wife reside now?

A. My wife there lives in our own home (indiscernible) wearing the IUD and going to have a check up once every four months.

* * *

Q. And did you ever live at that address?

A. I before I lived in that place in that address.

Q. And where you living at that address in November of 2001?

A. No, I did not live there in November 2001.

Q. So why did the government issue a household registration in November of 2001 indicating that you live at that address?

A. Because I'm not a criminal, I just (indiscernible) the family planning policy which is a local policy and they still give me this one.

Q. I'm sorry?

A. They still give me.

Q. Well, isn't it your testimony that you were in hiding because you feared that the family planning officials would arrest you?

A. Yes, but often they came to my home to look for me.

Q. And why did they list your household registration if they wanted to arrest you?

A. Because they (indiscernible) our own village (indiscernible) village into two (indiscernible) villages and when

Page 282

they separate that one they issue this booklet to us.

In response to questioning by the IJ, Zheng testified that he had left China by taking a plane from Beijing, making a brief stop in France, and then traveling by air to Mexico. Zheng asserted that he possessed no travel documents from this journey because he had lost them in the Mexican desert. He stated, " I don't know the details of when I entered into the United States because I traveled for several days." Zheng also acknowledged that he had retained no documentation of his assertion that he had borrowed a substantial sum of money from relatives for travel and in order to pay the traffickers who aided his entry into the United States from Mexico. Zheng further told the IJ that he...

To continue reading