Chen v. U.S. Dept. of Justice

• Decision Date: 23 September 2005
• Docket Number: Docket No. 03-41100.
• Citation: 426 F.3d 104
• Parties: Jin CHEN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE & Attorney General Gonzales,<SMALL><SUP>*</SUP></SMALL> Respondents.
• Court: U.S. Court of Appeals — Second Circuit

426 F.3d 104

Jin CHEN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE & Attorney General Gonzales,^* Respondents.

Docket No. 03-41100.

United States Court of Appeals, Second Circuit.

Submitted: August 5, 2005.

Decided: September 23, 2005.

COPYRIGHT MATERIAL OMITTED

Bruno Joseph Bembi, Hempstead, NY, for Petitioner.

James A. McDevitt, United States Attorney for the Eastern District of Washington, William H. Beatty, Assistant United States Attorney, Spokane, WA, for Respondents.

POOLER and SOTOMAYOR, Circuit Judges, KORMAN, District Judge.^**

POOLER, Circuit Judge.

Petitioner Jin Chen petitions for review of the Board of Immigration Appeals (BIA)'s November 20, 2003, order summarily affirming the Immigration Judge (IJ)'s decision, rendered orally on August 20, 2002, rejecting his claims for asylum and withholding of removal and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"), December 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, and ordering him removed to the People's Republic of China. We find that the IJ's denial of petitioner's claim of past persecution in the form of his wife's forced abortion and sterilization was not supported by substantial evidence, and we therefore vacate the BIA's order and remand for further proceedings.

BACKGROUND

Chen's Entry and Claim

Petitioner is a 29 year old male native and citizen of China. He entered the United States on August 12, 2001. He was served with a notice to appear in removal proceedings on August 24, 2001. Around February 8, 2002, he applied for asylum. In his application, Chen stated that (1) on November 2, 2000, his wife was ordered to submit to intra uterine device (IUD) insertion, and despite her refusal, was taken by force to a hospital at which an IUD was inserted; (2) the couple had the IUD removed by a private doctor, and in February 2001 Chen's wife became pregnant; (3) on March 8, 2001, about five cadres came to the couple's house to force Chen's wife to undergo an abortion, and despite the opposition of himself and his wife, his wife was arrested and taken by force to a hospital and made to have an abortion; (4) after the abortion, on April 5, 2001, Chen's wife was arrested and taken by force to a hospital to have an IUD inserted; (5) in May 2001, Chen began practicing Falun Gong with a friend; (6) on June 1, 2001, during a Falun Gong practice session at a friend's house, Chen went out to go shopping and when he came back the police had arrested his friends; (7) afraid that his friends would give his identity to the authorities, Chen went into hiding at a relative's house; (8) Chen's wife told him that on June 28, 2001, the police came looking for him and left with her a copy of a warrant for his arrest; and (9) Chen fears that if returned to China he will be arrested and imprisoned.

At his initial hearing appearance on November 16, 2001, Chen conceded removability, renewed his asylum application, and asserted claims to withholding of removal and relief under the Convention Against Torture.

Evidence at the Hearing

The hearing proper commenced on August 20, 2002. At his hearing, Chen offered various corroborative documents into evidence: (1) a notarial birth certificate, dated October 15, 2001, issued by the Changle City Notary Public Office, stating that Chen Jin, a male, was born on December 3, 1975, in Changle City, Fujian Province, to Chen Shangguo and Lin Aifang (2) a Chinese Resident Card issued on October 9, 2001, in the name of Jin Chen, stating that he was born on December 3, 1975, and giving an address in Changle City, Fujian Province; (3) a marriage license issued on November 2, 2000, to Jin Chen, born December 3, 1975, and Xiu Yun Zheng, born September 22, 1978, stating that they were qualified for marriage and would be allowed to register; (4) a notarial marriage certificate issued on October 15, 2001, by the Changle City Notary Public Office, stating that Zheng Xiuyun, a female born on September 22, 1978, and Chen Jin, a male born on December 3, 1975, married at the registry office on April 7, 1999, in Hangchen Town, Changle City, Fujian Province; (5) a notarial birth certificate issued October 15, 2001, by the Changle City Notary Public Office, stating that Zheng Xiuyun, a female, was born on September 22, 1978, at Changle City, Fujian Province, to Zheng Zengjin and Cai Yuzhi; (6) a notarial birth certificate issued on October 15, 2001, by the Changle City Notary Public Office, stating that Chen Rouqi, a female, was born on July 29, 2000, at Changle City, Fujian Province, to Chen Jin and Zheng Xiuyun; (7) a household registry issued on October 19, 2001, listing Jin Chen, a male born on December 3, 1975, in Changle County, Fujian Province, as head of household, Xiu Yun Zheng, a female born September 22, 1978, in Changle City, Fujian Province, as his wife, and Rou Qi Chen, a female born July 29, 2000, in Changle City, Fujian Province, as his eldest daughter; (8) a "Changle County Birth Control Operation Certificate," "NO: 0006945,"¹ dated November 2, 2000, issued by Fujian Province Changle City Hospital "For Birth Control Used Only," signed by Doctor Li Yu Lin, certifying that "comrade Xiu Yun Zheng residing at Liren village (committee) Hangcheng town on November 2nd, have an IUD implanted in this office;"(9) a "Changle County Birth Control Operation Certificate," "NO: 0007585,"² dated March 8, 2001, issued by Fujian Province Changle City Hospital "For Birth Control Used Only," signed by Doctor Ya Hua Chen, certifying that "comrade Xiu Yun Zheng residing at Liren village (committee) Hangcheng town on March 8th, underwent an abortion operation in this office;"(10) a "Changle County Birth Control Operation Certificate" "NO: 0005805," dated April 15, 2001, issued by Fujian Province Changle City Hospital "For Birth Control Used Only," signed by Doctor Mei Hua Zheng, certifying that "comrade Xiu Yun Zheng residing at Liren village (committee) Hangcheng town on April 15th, have an IUD implanted in this office;" and (11) a photograph of a Chinese man and woman holding a baby. Chen also submitted various forms of background evidence including newspaper articles about the treatment of Falun Gong practitioners in China, and the "State Department 2000 Annual Report on International Religious Freedom: China." The Government submitted the State Department's 1998 China profile.

Chen testified that he was married to Zhou Ying Chen on July 4, 1999, and registered his marriage that same day. He and his wife have one daughter, Lo Chi Zhou, who was born on July 29, 2000. Chen lived in Li Yan village, Chen Lo City, Fuzhou, Fujian Province from birth until he left China in August 2001. He stated that he left because of persecution "by the [Chinese] birth policy." In particular, in February 2001, his wife discovered that she was pregnant, and five or six village cadres came on the morning of March 8, 2001, to take her for a forced abortion. Chen argued with them but they still took his wife away. Chen did not go with his wife to the hospital because the cadres refused to allow him to come. When his wife came home that evening she reported to Chen that she had been forced to have an abortion, and she was crying and in much pain. On April 15, 2001, some cadres came to force Chen's wife to have an IUD inserted. Chen was not home when they came but when he got home his wife told him about it.

Chen asserted that in May 2001, he "joined the Falun Gong and practiced Falun Gong." He was introduced to Falun Gong by his friend Wi Chung. He described Falun Gong as a "practice for better health," that involves sitting and putting one's hands together. He practiced once a week at his friend's house. On June 1, 2001, the group of practitioners was apparently reported to authorities, and the police came to arrest them. Luckily, Chen had left the house and was not arrested, but he saw what happened from a store across the street. Chen stated that he knew that Falun Gong was illegal in China because the authorities considered it a "cult," but that he practiced it anyway because he "didn't know it was that serious." After the arrests, fearing that he would himself be arrested, Chen fled the area to stay with a relative. For two months, Chen did not return home because of his fear of being arrested. Chen's wife told him that the police came to his house on June 28, 2001, seeking to arrest him. The police gave Chen's wife a copy of a warrant for his arrest, but she tore it up and so he never received a copy. Chen stopped practicing Falun Gong after coming to the United States because he had no time to do so, on account of the amount of time he was required to work in order to pay off the people who smuggled him into the United States. He owes these smugglers $20,000.

Chen testified that he had seen the receipts for abortion and IUD insertion that he submitted into evidence while he was in China. His wife brought them home from the hospital on the dates of her forced medical procedures. Chen did not bring them with him from China, but rather, his wife mailed them to him after his arrival here.

After Chen testified regarding the abortion and subsequent IUD insertion, his attorney asked him if he had any "other further family planning problems." He replied, "no." However, after he testified to authenticate the certificates for the abortion and subsequent IUD insertion, he mentioned for the first time that his wife had been forced to submit to insertion of an IUD prior to the abortion, after the birth of the couple's first child. This occurred on November 2, 2000. That morning, while Chen was at work, several cadres took his wife away for IUD insertion. She told Chen about this after he came home later that day. Chen explained that he had not mentioned this in response to his attorney's earlier questions because he "didn't hear clearly." But he stated...