Guan Shan Liao v. U.S. Dept. of Justice

• Decision Date: 20 June 2002
• Docket Number: Docket No. 00-4046.
• Citation: 293 F.3d 61
• Parties: GUAN SHAN LIAO, a/k/a Guang Shan Liao; a/k/a Guang Zee Liu, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Reno, United States Department of Justice, Executive Office of Immigration Review, Board of Immigration Appeals, United States Department of Justice, Executive Office of Immigration Review, Office of the Immigration Judges, United States Department of Justice, Immigration and Naturalization Service, Commissioner Meisner & United States Department of Justice, District Director McElroy, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

293 F.3d 61

GUAN SHAN LIAO, a/k/a Guang Shan Liao; a/k/a Guang Zee Liu, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Reno, United States Department of Justice, Executive Office of Immigration Review, Board of Immigration Appeals, United States Department of Justice, Executive Office of Immigration Review, Office of the Immigration

Judges, United States Department of Justice, Immigration and Naturalization Service, Commissioner Meisner & United States Department of Justice, District Director McElroy, Respondents.

Docket No. 00-4046.

United States Court of Appeals, Second Circuit.

Argued: October 19, 2001.

Decided: June 20, 2002.

COPYRIGHT MATERIAL OMITTED

Bruno J. Bembi, Hempstead, New York, for Petitioner.

Edward Chang, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney, Meredith E. Kotler, Kathy S. Marks, Sara L. Shudofsky, Assistant United States Attorneys, Southern District of New York, New York, New York, of counsel), for Respondents.

Before OAKES, CARDAMONE, and JACOBS, Circuit Judges.

Judge JACOBS concurs in a separate opinion.

CARDAMONE, Circuit Judge:

Guan Shan Liao (Liao, petitioner, or applicant), a native of the People's Republic of China (China), seeks asylum in this country on the basis of his resisting China's family control policy. Liao argues that he is entitled to such relief because he suffered past persecution and has a well-founded fear of future persecution as a result of his resistance to China's "one child" population control program. At the hearing, Liao testified and submitted documentary evidence in support of his application for asylum and withholding of exclusion. After the immigration judge denied relief, petitioner appealed to the Board of Immigration Appeals (Board, Appeals Board, or Board of Appeals).

In denying the appeal, the Board gave only cursory and somewhat ambiguous explanations for the conclusions it reached. Such practice makes our review most difficult because, as this appeal illustrates, it leaves us in doubt as to whether, in denying the petition, the Board's methodology conformed to the applicable statutory and regulatory law. Because we believe the Appeals Board ultimately did apply the correct legal framework, however inartfully stated, we affirm. But the ambiguities in its opinion call for a full exposition of the issues in this case. Accordingly, we write to clarify the analysis the Appeals Board applied so that the ambiguities in its opinion are not carried into future cases, and so that the right to obtain asylum is not thereby unnecessarily clouded.

BACKGROUND

On October 5, 1991 Liao flew into the United States and attempted to gain illegal entry by sneaking out of the immigration inspection area of the Los Angeles International Airport. After being apprehended, Liao filed an application for asylum and withholding of exclusion alleging that if he were returned to China, he would be arrested for "[h]aving more than 2 children." In November 1991 Liao posted a $2500 bond and was released from the custody of the Immigration and Naturalization Service (INS). Subsequently, petitioner failed to appear at his exclusion hearing in February 1992 and was ordered to be excluded in absentia. Petitioner filed a second asylum application in May 1992. In June 1992 he moved to have his exclusion proceedings reopened and for a change of venue to New York. One month later these motions were granted, and a new exclusion proceeding commenced in New York on August 16, 1993.

In his second application, which contradicted his first to some extent, Liao claimed: (1) his father had been persecuted in the 1950s for anti-communist beliefs; (2) he had been fined when his son married at too early an age; (3) his house had been taken from him by the Chinese authorities; and (4) he and his family were forced to live on the run after the authorities discovered he had harbored a cousin who was wanted for sterilization.

In his testimony before the immigration judge, petitioner supplemented his application with additional facts. Most importantly, he testified that he was fined a second time for harboring his cousin, and submitted a copy of a notice ordering him to attend a birth control study class. He further alleged that had he attended this study class, he would have been detained until his cousin submitted to sterilization. Since the cousin has not yet been sterilized, Liao alleges that his family still living in China, including his wife, are actively evading the authorities.

In addition to the testimony elicited at the hearing, the immigration judge received evidence concerning China's family planning policies, particularly those in the Wenzhou area of the Zhejiang province where petitioner lived. To support his claims of persecution, Liao entered two New York Times articles into the record. These report that homes in many different provinces are routinely knocked down for birth control violations, and that an increasingly high proportion of couples are sterilized or use contraception. A State Department report providing a detailed account of birth control policies in the Zhejiang province also became part of the record.

PROCEDURAL HISTORY

In an oral decision rendered at the conclusion of the hearing, the immigration judge rejected Liao's application. The decision began by noting that to obtain asylum or withholding of deportation, an applicant must show a persecutive motive on the part of the foreign government based on any one of five statutorily-enumerated grounds, including race, religion, nationality, membership in a particular social group, or political opinion. Under In re Chang, 20 I. & N. Dec. 38 (BIA May 12, 1989), the controlling precedent at the time of the immigration judge's decision, applicants who had been subjected to or punished for resisting China's population control policy were not assumed to have been persecuted on a protected ground. Given this rule, the immigration judge found that petitioner's evidence — all of which was related to the population control program — fell squarely within the ruling of In re Chang. Additionally, in holding that petitioner's proof did not evince a persecutive motive on one of the five protected grounds, the immigration judge characterized Liao's allegations concerning the study class as "hyperbole."

On January 31, 2000, more than six years later, and after a de novo review of the record, the Appeals Board ruled on petitioner's appeal from the immigration judge's opinion. When this review occurred, Congress had overruled In re Chang by amending the definition of the term "refugee." Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub.L. No. 104-208, § 601(a), Div. C., 110 Stat. 3009-546, 3009-689 (codified at 8 U.S.C. § 1101(a)(42) (2000)) (IIRIRA). The Board nevertheless found that Liao still did not qualify for refugee status, since none of his conduct constituted "such resistance" to the government's family planning policies as would subject him to persecution upon his return to China. With respect to the applicant's evidence regarding the study course, the Board found that absent corroborating evidence to bolster his claims, Liao could not show he had a well-founded fear of persecution. The Board concluded by stating, "We find that the evidence of record, considered cumulatively, does not show that the applicant has met his burden of demonstrating that he has suffered past persecution or has a well-founded fear of persecution on account of one of the five grounds for which asylum may be granted." It is from this decision and order that petitioner appeals.

DISCUSSION

I Standard of Review

Liao petitions us to review the decision pursuant to § 309(c)(4) of the IIRIRA. In conducting this review, we apply the substantial evidence test to the Board's factual findings and reverse only if no reasonable factfinder could have arrived at the same conclusion. Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000). Similarly, we defer to the Board's interpretation of the statutory law it administers, Osorio v. INS, 18 F.3d 1017, 1022 (2d Cir.1994), reversing only when its interpretations are unreasonable. Id.

When the INS has promulgated a regulation "to protect a fundamental right derived from the Constitution or a federal statute" for an alien's benefit, we require the administrative tribunal to adhere to it. Waldron v. INS, 17 F.3d 511, 518 (2d Cir.1994). If review centers on the Board's application of legal principles to undisputed facts, we review the determination reached — in this case denying asylum and withholding of deportation — de novo. Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir.2001).

Liao contends the Board erred by holding he was not eligible for either political asylum or withholding of exclusion, the two alternative forms of relief for deportable aliens who claim they were or will be the subject of persecution in their home country. See Melgar de Torres v. Reno, 191 F.3d 307, 311-12 (2d Cir.1999). Since the standard for evaluating applications for withholding of deportation is similar to — but more stringent than — the standard for asylum claims, an applicant must show eligibility for asylum before withholding of deportation need be considered. See Zhang v. Slattery, 55 F.3d 732, 738 (2d Cir.1995) ("An applicant who has failed to satisfy the requirements for asylum has necessarily failed to satisfy the requirements for withholding of return."). For this reason, we focus our analysis on petitioner's asylum claim.

II Standards for Seeking Asylum

To obtain asylum, an applicant must initially establish that he is a refugee, or a person who is unable to return to his native country because of "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). When Congress amended the definition in 1996, it added...