Jin Yi Liao v. Holder

• Decision Date: 04 March 2009
• Docket Number: Docket No. 07-3146-ag.
• Citation: 558 F.3d 152
• Parties: JIN YI LIAO, Xiao Zhi Wu, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

558 F.3d 152

JIN YI LIAO, Xiao Zhi Wu, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States,¹ Respondent.

Docket No. 07-3146-ag.

United States Court of Appeals, Second Circuit.

Argued: August 29, 2008.

Decided: March 4, 2009.

Joshua Bardavid, Office of Stephanie Yutkin, New York, N.Y., for Petitioner.

Alex Goring, Assistant Attorney General (Jeffrey S. Bucholtz, Michelle Gorden Latour, and P. Michael Truman, on the brief), Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for Respondent.

Before CALABRESI, SOTOMAYOR, B.D. PARKER, Circuit Judges.

CALABRESI, Circuit Judge:

Petitioners Jin Yi Liao and Xiao Zhi Wu, mother and son, petition from the June 25, 2007 order of the Board of Immigration Appeals ("BIA") dismissing their appeal and affirming the decision of Immigration Judge ("IJ") William Jankun, who denied their applications for asylum and withholding of removal. Petitioner Liao applied for asylum based on political persecution, alleging that she left China when family planning authorities threatened forcibly to abort her pregnancy. She first fled to the Dominican Republic, and there gave birth to her son, Xiao Zhi Wu, who is applying for derivative status.² Five months later she settled in the United States, where she has had two more children. The BIA affirmed the IJ's decision, which, based on Petitioner's two month "Residencia" visa, had found that Petitioner was "firmly resettled" in the Dominican Republic, and was therefore ineligible for asylum. See 8 U.S.C. § 1158(b)(2)(A)(vi). We hold that a temporary visa of such a short term, without more, cannot establish that an applicant has, under the "totality of the circumstances" test employed by our Circuit, been "firmly resettled" in a third country. See 8 C.F.R. § 208.15. Moreover, we find that the BIA's decision that Petitioner did not qualify for the exception to firm resettlement for applicants whose entry into another country was a "necessary consequence of ... flight from persecution," 8 C.F.R. § 208.15(a), was based on a misperception of the record. We therefore grant the petition for review and remand the case to the BIA.

BACKGROUND

I. Liao's Claim of Persecution

Because the agency has not questioned Petitioner's credibility, we take the facts she has asserted to be true. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir.2005) (holding that, where there is no adverse credibility determination in the decision being reviewed, we will assume that the petitioner is credible). Liao is a citizen and native of China who fled from her home country to avoid forcible abortion. In January 1992, Liao discovered that she was pregnant. Since she was not legally married to the baby's father, her current husband DeZhong Wu, the Chinese authorities considered her pregnancy illegal. Consequently, when Liao was "somewhat noticeably pregnant," several government officers came to her home one evening and, suspecting she was pregnant, educated her about the importance of complying with the birth control policy. These officials told her that she "was not allowed to give birth to a child because [she] did not have a Birth Permit from the government," and that "if [she] was actually pregnant, [she] must undergo [an] abortion." She then received letters from the Chinese government telling her to have an abortion or "face consequences." Fearing a forcible abortion, Liao and DeZhong Wu made arrangements for Liao to flee from China. They contracted with a "snakehead" to get a visa and to transport Liao to the Dominican Republic, where she arrived in May 1992.

Liao was in the Dominican Republic for a total of ten months. During that time, she neither obtained a job nor learned Spanish. When she first arrived, she spoke with her brother in China on the phone, and "he told [her] that the officials from the Street Committee were looking for [her]" and that "he was detained for about one week and beaten because he refused to cooperate with the officials." Liao's brother told her "not to go home." Approximately five months after leaving China, on October 15, 1992, Liao gave birth to her son Xiao Zhi Wu, who, having been born there, is a native and citizen of the Dominican Republic. After giving birth, Liao stayed in the Dominican Republic another five months, then left with her son and entered the United States without inspection or valid entry documents on or about March 18, 1993. Since her arrival in the United States, while her immigration proceedings have been pending, Liao and De Zhong Wu, to whom she is now formally married, have had two U.S. citizen children, currently teenagers.

II. Immigration Proceedings

In June 1993, Liao timely filed an application for asylum and withholding of removal, alleging that she had escaped forced abortion by Chinese family planning authorities and feared persecution upon return. An abbreviated version of her proceedings before immigration authorities is as follows.

A. Liao's First Proceeding

Liao appeared for a merits hearing before IJ Jankun in support of her application for asylum and withholding in September 1999. During this hearing, the IJ declined to hear testimony with respect to Liao's claim for asylum based on her alleged resistance to China's coercive birth control practices because Liao had already presented testimony on that issue in her husband's asylum case. IJ Sandy Hom had found Liao's testimony in support of her husband's application for asylum inconsistent with her husband's testimony, and therefore determined that his claims were not credible. IJ Jankun held that IJ Hom's decision was binding on Liao as a matter of what IJ Jankun called res judicata.

One issue that had not been resolved in her husband's case, however, was that of firm resettlement in the Dominican Republic. Liao testified that she was in the Dominican Republic as a result of her flight from China. In his order, IJ Jankun noted that Liao obtained a resident visa from the Dominican Republic, which was evidenced by a stamp in her passport that said "Residencia." Because Liao "was given permission to enter the Dominican Republic as a resident," the IJ found that Liao was "firmly resettled" there, and hence unable to establish eligibility for asylum in the United States. Upon appeal, the BIA remanded the case to IJ Jankum after finding (1) that the IJ had erroneously applied the principle of res judicata, and (2) that the IJ had improperly relied on Liao's untranslated passport stamp in finding that Liao was firmly resettled.

B. Liao's Second Proceeding

Upon remand to the IJ, Liao testified again in support of her application for asylum and withholding. Although the translation of the passport stamp from the Dominican Republic stated that Liao was granted "residency" in that country, Liao's attorney maintained that the stamp was not conclusive evidence of firm resettlement because, inter alia, the visa expired on July 7, 1992, which was within approximately a month of her arrival in the Dominican Republic. Moreover Liao's counsel argued that she only fled to the Dominican Republic as a desperate attempt to get a visa anywhere so she could quickly leave China to avoid an involuntary abortion, and that, as a result, she should not have been considered "firmly resettled" there. Reaffirming his prior holding, the IJ found that "[a]fter being admitted on a resident visa," Liao was firmly resettled in the Dominican Republic and, hence, statutorily ineligible for asylum.

As to her withholding claim, the IJ concluded Liao had "not presented any testimony or background material to indicate that she would have problems with the family planning authorities if she was to return to People's Republic of China, as [Liao] readily admitted her children[,] one who is a citizen of the Dominican Republic and two who are citizens of the United States, do not have to return with her to [the] People's Republic of China." The BIA affirmed the IJ's decision, and Liao now appeals.

DISCUSSION

On appeal, Liao first asserts that the BIA erroneously found that she was "firmly resettled" in the Dominican Republic and therefore statutorily ineligible for asylum. She first contends that the BIA, in basing its conclusion solely on the "Residencia" visa, employed the wrong legal standard. This challenge presents us with a question of first impression for this Court — whether a temporary residence visa, without more, can constitute an "offer of permanent residence status," as required for "firm resettlement" under 8 C.F.R. § 208.15. Second, Liao argues that even if she received an offer of permanent residence, she qualifies for an exception to the statutory bar that precludes applications for asylum for those who were resettled in other countries before coming to the United States. Liao further argues that the BIA, having erroneously found her to be permanently resettled, wrongly evaluated her case only under the more stringent withholding standard. She contends that the agency should have found her eligible for asylum.³

I. Standard of Review

Where, as here, the BIA summarily affirms an IJ's decision with little explanation, we directly review the factual and legal findings contained in the opinion of the IJ as supplemented by the BIA. See Yan Chen, 417 F.3d at 271. This Court reviews the agency's factual findings under the substantial evidence standard, which requires that the IJ's findings be supported by "reasonable, substantial and probative evidence in the record." Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 116 (2d Cir.2007) (internal quotations omitted); Sall v. Gonzales, 437 F.3d 229, 232 (2d Cir.2006) (per curiam) (joining the finding of our "sister circuits that the `substantial evidence' standard applies when reviewing findings of firm resettlement"). While this is a highly deferential standard, the Court will vacate and remand for new findings if the agency's reasoning or its fact-finding process...