Kim v. Gonzales
| Decision Date | 19 July 2006 |
| Docket Number | Docket No. 03-4788-AG. |
| Citation | 458 F.3d 40 |
| Parties | Heui Soo KIM, a/k/a Zhen Qian Guo, Petitioner, v. Alberto GONZALES, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
David Z. Su, El Monte, CA, for Petitioner.
Neal Kirkpatrick, Assistant United States Attorney, Northern District of Oklahoma (David E. O'Meilia, United States Attorney for the Northern District of Oklahoma, Loretta F. Radford, Assistant United States Attorney, of counsel), Tulsa, OK, for Respondent.
Before KEARSE and SACK, Circuit Judges, and STANCEU, Judge.**
Zhen Qian Guo, also known as Heui Soo Kim, a native and citizen of the People's Republic of China, petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the denial by an immigration judge ("IJ") of Guo's application for asylum and withholding of removal. Guo contends that the IJ's adverse credibility determination is not supported by substantial evidence. We agree, and therefore grant the petition.
Zhen1 Qian Guo, using a Korean passport with the name Heui Soo Kim, arrived in the United States in early 1992 and was promptly placed in exclusion proceedings2 by the Immigration and Naturalization Service.3 Subsequently, Guo filed an application for asylum and withholding of deportation in California. This application is missing from the record.
At a March 25, 1992 hearing before an IJ, Guo testified through an interpreter, inter alia, that he had three children who remained in China with his wife, and that after the birth of his third child, Chinese authorities threatened to arrest him for violating the country's population control policies. Guo also stated that the government fined him 10,000 yuan. The IJ denied Guo's application for asylum and withholding of deportation, stating that Guo "submitted insufficient specific facts and/or evidence from which I might infer that he has been persecuted or that he has a well-founded fear of persecution on account of any of the specified grounds found in the [INA]." Oral Decision of the IJ, Mar. 25, 1992, at 4. Guo timely appealed to the BIA.
On October 23, 1992, the INS moved for termination of Guo's exclusion proceedings, stating that "[a]fter reviewing the record, the Service believes that the petitioner has raised a serious claim based upon the enforcement of the coercive family planning policy." Mem. of Patricia A. Cole, Appellate Counsel, INS, dated Oct. 23, 1992, at 1. Subsequently, in a one-line per curiam order, the BIA terminated the proceedings. In re Guo, A71-569-429, slip op. at 1 (BIA Nov. 3, 1992).
In January 1993, Guo filed a second application for asylum and withholding of deportation.4 In this application, Guo alleged that: (1) he was forced by the Chinese government to pay a fine in connection with his wife's third pregnancy; (2) he was threatened with sterilization and arrest because he had violated the government's family planning policy; and (3) his wife "was coerced to be sterilized on December 1, 1989." Request for Asylum, dated Dec. 27, 1992, at 3.
In September 1994, Guo filed a third application for asylum and withholding of deportation. In this application, Guo alleged, inter alia, that his "wife was forced to medically undergo sterilization." Request for Asylum, dated Sept. 19, 1994, at 2.
In March 1997, for reasons that remain unclear, the INS once again placed Guo in exclusion proceedings. A new hearing was held before an IJ in 1999, during which Guo testified through an interpreter, inter alia, that the government "used compulsory force" to sterilize his wife, with individuals coming to his home and "[t]earing [his] wife away." Tr. of Asylum Hr'g, Mar. 9, 1999, at 28.5
On direct examination, Guo's counsel asked him whether he had testified similarly in his 1992 hearing. Guo responded that:
I recall, at that time, I had been asked by the government official whether I had the third child—the fourth, fourth child or not, then I told them because being sterilized [sic] therefore we did not have fourth, fourth child.
Id. at 41. Later in the hearing, Guo's counsel asked Guo again whether he had testified about his wife's sterilization in 1992. Guo responded:
And I did not indicate about the sterilization. Only I recall when I were [sic] questioned they asked me do I have a fourth child, the birth of the fourth child, then I indicated no after the surgery, medical surgery, I was not—cannot have a fourth child.
Guo's counsel pressed him further, asking, "You did tell the Court through the interpreter at that hearing in March 1992, that your wife was sterilized . . . after the third child, and that she could not have a fourth one?" Id. at 45. Guo answered, "That's, that's correct." Id. Continuing, Guo's counsel asked, "[A]s you sit here now, did you or did you not testify your wife sterilization [sic] in that March 1992 hearing?" Id. at 46. Guo stated:
I, I did not mention that there were sterilization, but I only mentioned my wife had been—had received a certain kind of surgical procedure, and she was not able, able to give birth at the— another child.
In an oral decision, the IJ denied Guo's application for asylum and withholding of removal, finding "great difficulty with respect to [Guo]'s veracity." Oral Decision of the IJ, Mar. 9, 1999, at 5. Specifically, the IJ stated, inter alia, that: (1) Guo "did not testify in his hearing in 1992 that his wife had been sterilized"; (2) Guo "incorrectly identified the birth date" of his second child; and (3) Guo's explanation that he had not registered his third child with the government because he was waiting to pay the fine the government had imposed on him "defies logic" because Guo "was no longer hiding this child." Id. at 5-6. The IJ also stated that Guo's testimony generally was "evasive, unresponsive, and inconsistent." Id. at 8.
Guo appealed the IJ's decision to the BIA. In his brief on appeal to the BIA, Guo argued that the IJ's adverse credibility finding was unsupported by the record. Appeal Br. of Applicant, dated Aug. 30, 1999, at 5-7. In the alternative, Guo moved for a remand to the IJ to allow him to bring a claim for relief under the Convention Against Torture ("CAT").6 Id. at 6-7.
On March 24, 2003, in a one-paragraph per curiam order, the BIA affirmed, without discussion, the March 1999 oral decision of the IJ, and denied Guo's request for a remand in order to add an application for CAT relief. In re Kim, A71-569-429, slip op. at 1 (BIA Mar. 24, 2003).
Guo petitions for review of the BIA's order. The sole issue he raises is whether the IJ's adverse credibility determination is supported by substantial evidence.
"When the BIA issues an opinion, `the opinion becomes the basis for judicial review of the decision of which the alien is complaining.'" Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655 (7th Cir. 2004)). "Where the BIA adopts the decision of the IJ and merely supplements the IJ's decision, however, we review the decision of the IJ as supplemented by the BIA." Id.; see also Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003).
We review the factual findings of the IJ, including adverse credibility determinations, for substantial evidence. See id. at 306-07. "Under this standard, the IJ's factual determinations may be overturned only if `any reasonable adjudicator would be compelled to conclude to the contrary.'" Diallo v. Gonzales, 445 F.3d 624, 628 (2d Cir.2006) (quoting 8 U.S.C. § 1252(b)(4)(B)).7
As we recently explained:
In general, we "afford particular deference in applying the substantial evidence standard" to credibility findings, Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004) (internal quotation marks omitted), because "the IJ's ability to observe the witness's demeanor places her in the best position to evaluate whether apparent problems in the witness's testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question," Jin Chen v. U.S. Dep't of Justice, 426 F.3d 104, 113 (2d Cir.2005). But "the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review." Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). For an adverse credibility determination to be upheld, the factfinder must provide "specific, cogent reasons" that "bear a legitimate nexus to the finding," Surinder Singh v. BIA, 438 F.3d 145, 147 (2d Cir.2006) (per curiam) (internal quotation marks and citation omitted), and that are not based on "flawed reasoning, bald speculation, or conjecture," Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 158 (2d Cir.2006).
Id. at 628-29 (brackets in original).
As noted, the IJ rested his adverse credibility finding on three specific grounds. First, he found that Guo "did not testify in his hearing in 1992 that his wife had been sterilized." Oral Decision of the IJ, Mar. 9, 1999, at 5. Second, the IJ found that Guo "incorrectly identified the birth date" of his second child. Id. at 5-6. Third, the IJ stated that Guo's explanation that he had not registered his third child with the government because he was waiting to pay the fine the government had imposed on him "defies logic" because Guo "was no longer hiding this child." Id. at 6. We will discuss grounds two and three first, and will then discuss the IJ's finding that Guo failed to testify about his wife's alleged sterilization in his 1992 hearing.
Guo contends that the IJ erred in relying upon a "minor inconsistency" with respect to...
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