Guo v. Ashcroft, 03-2972.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Citation: 386 F.3d 556
• Docket Number: No. 03-2972.,03-2972.
• Parties: Jian Lian GUO, Petitioner v. John ASHCROFT, Attorney General of the United States Respondent.
• Decision Date: 25 October 2004

386 F.3d 556 Jian Lian GUO, Petitioner
v.
John ASHCROFT, Attorney General of the United States Respondent. No. 03-2972. United States Court of Appeals, Third Circuit. Argued June 29, 2004. Filed October 25, 2004.

Petition for review of order of the Board of Immigration Appeals.

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Theodore N. Cox, Joshua Bardavid, (Argued), New York, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Mark C. Walters, Assistant Director, Theordore C. Hirt, (Argued), Douglas E. Ginsburg, John D. Williams, John M. McAdams, Jr., Department of Justice Civil Division, Office of Immigration Litigation, Washington, for Respondent.

Before AMBRO, ALDISERT and STAPLETON, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Jian Lian Guo seeks review of the order of the Board of Immigration Appeals ("Board") denying her motion to reopen her immigration proceedings. Because we conclude that the Board failed to substantiate its decision and impermissibly relied on a prior adverse credibility determination unrelated to Guo's petition for asylum, we grant the petition for review and remand for further proceedings.

I. Factual and Procedural History

Guo is a native and citizen of China. She entered the United States without valid entry documentation on January 3, 2000. On January 21, 2000, the Immigration and Naturalization Service ("INS")¹ charged

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her with removability based on § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(7)(A)(i)(I). At a master calendar hearing on March 23, 2000, Guo conceded removability. The same day she filed an application for asylum based on religious persecution and requested withholding of removal under INA § 241(b), 8 U.S.C. § 1231(b), and Article III of the United Nations Convention Against Torture.²

Guo initially justified her application for asylum on the basis of religious persecution. She stated that she had joined an "underground church" in China in 1996 and was baptized in July 1997. In December 1999, government officials purportedly sought to arrest her at a church meeting where she was teaching Sunday school; she allegedly evaded arrest and fled the country. Guo further claimed to have left behind in China her first husband, whom she had married in 1999 and whose where-abouts she did not know.

On August 2, 2000, an Immigration Judge ("IJ") denied Guo's application for asylum. The IJ found that Guo was not credible. He concluded that her story was fabricated and, even if true, would not merit asylum. He also doubted Guo's professed ignorance of her first husband's location and speculated that he was in the United States. He therefore denied her application for asylum. Guo appealed, and on October 29, 2002, the Board affirmed without issuing a separate opinion.

On January 21, 2003, Guo filed a motion to reopen the immigration proceedings based on intervening developments. In March 2001, she married Li Kang Chan in New York. On January 15, 2002, their first child was born in Manhattan. Later that year, Guo discovered that she was again pregnant.³ She thus claimed that she was entitled to asylum based on China's one-child family planning policy; she feared that if she returned to China she would be subject to China's forcible sterilization policy and other penalties. In support of her motion to reopen, Guo submitted a previous Board decision granting reopening for a Chinese applicant with two United States-born children, a new application for asylum, her marriage certificate, the birth certificate of her first child, a letter from her obstetrician describing her pregnancy, and an affidavit by retired demographer John Shields Aird, Ph.D.

The Board denied the motion to reopen on June 16, 2003, explaining that Guo had "failed to meaningfully address the negative credibility determinations noted in the Immigration Judge's decision." The Board's opinion stated that even if it "were to find her claim credible, she has not established a `well-founded fear' that a reasonable person in her circumstances would fear persecution" on a protected basis. It concluded that the evidence she had presented was insufficient to establish that "officials punish returning Chinese nationals who are pregnant, have given birth to children in foreign countries, or prohibit them from having more children upon their return."

The Board had jurisdiction over Guo's motion to reopen under 8 C.F.R. § 1003.2(c). We have jurisdiction over her

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timely petition for review pursuant to 8 U.S.C. § 1252.

Discussion

I. Overview of the statutory framework

Section 208(b) of the INA, 8 U.S.C. § 1158(b), confers on the Attorney General discretion to grant asylum to an alien who is a "refugee." An individual qualifies as a refugee if he or she is "unable or unwilling" to return to his or her 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." INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Forced abortion and forced sterilization constitute persecution "on account of political opinion." INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). An individual with a well-founded fear that she will be forced to undergo a coercive population control procedure of this sort or be subject to persecution for failure to do so has a well founded fear of persecution. Id.

An applicant bears the burden of proving eligibility for asylum based on specific facts and credible testimony. 8 C.F.R. § 208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.2001). In order to demonstrate a well-founded fear of persecution, an applicant must satisfy three requirements: (1) he or she has a fear of persecution in his or her native country; (2) there is a reasonable possibility that he or she will be persecuted upon return to that country; and (3) the applicant is unwilling to return to that country as a result of his or her fear. 8 C.F.R. § 208.13(b)(2)(i).⁴

Board determinations are upheld if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We will reverse only if "the evidence not only supports [a contrary] conclusion, but compels it." Id. at 481 n. 1, 112 S.Ct. 812 (emphasis omitted). Adverse credibility determinations are factual matters and also are reviewed for substantial evidence. Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998). They likewise will be upheld unless "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

In this case, we are asked to review the Board's denial of Guo's motion to reopen. As a general rule, motions to reopen are granted only under compelling circumstances. The Supreme Court has explained:

The granting of a motion to reopen is... discretionary.... [T]he Attorney General has "broad discretion" to grant or deny such motions. Motions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. This is especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who

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wishes merely to remain in the United States.

INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (citations omitted). In light of these considerations, our review is highly deferential: we review the denial of a motion to reopen for abuse of discretion. Id. at 323, 112 S.Ct. 719. "Discretionary decisions of the [Board] will not be disturbed unless they are found to be arbitrary, irrational, or contrary to law." Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (quotation omitted).

II. Application to Guo

Guo makes two principal arguments. First, she argues that the Board erred in considering the IJ's adverse credibility determination, which was based on facts unrelated to China's family planning policies. Second, Guo suggests that the documents she submitted are adequate to establish prima facie eligibility for asylum—a reasonable likelihood that she would prevail on the merits if a motion to reopen were granted—and she contends that the Board erroneously held her to a higher standard. We agree with her on both counts.

A. Adverse credibility determination

In reviewing Guo's initial petition for asylum, the IJ deemed her testimony not credible. The Board relied on that adverse credibility determination in evaluating her motion to reopen. Because the basis for the IJ's credibility assessment was utterly unrelated to Guo's later claim, the Board erred by taking it into consideration.

Guo does not dispute that the IJ's credibility determinations were supported by the record. Indeed, she would be hard pressed to argue otherwise. The IJ's ruling contained seven distinct references to her lack of credibility. The adverse credibility findings were directly related to the central events upon which Guo's asylum claim initially was based: her alleged religious persecution.

The legitimacy of an initial credibility determination does not, however, justify denial of all subsequent applications for asylum. No one has explained how the IJ's adverse credibility findings implicated Guo's motion to reopen on a ground not previously dealt with by the IJ. Guo's credibility (or lack thereof) for religious persecution simply is not relevant to her motion to reopen in this case, which relied principally on the fact of her second pregnancy in contravention of China's one-child policy and on China's practice of persecuting those who violate the policy.

The Government's argument reduces to a bad-faith theory of asylum law: once credibility is tarnished, all...