Li v. I.N.S.

• Decision Date: 29 June 2006
• Docket Number: No. 02-4302.,02-4302.
• Citation: 453 F.3d 129
• Parties: Li Zu GUAN,<SMALL><SUP>1</SUP></SMALL> Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

453 F.3d 129

Li Zu GUAN,¹ Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-4302.

United States Court of Appeals, Second Circuit.

Argued March 2, 2005.

Decided June 29, 2006.

COPYRIGHT MATERIAL OMITTED

Sunit K. Joshi, Wilson, Joshi & Kuzmin, LLP (Vlad Kuzmin, on the brief), New York, N.Y., for Petitioner.

Maria M. Mlynar, Attorney, Office of Immigration Litigation, for Peter D. Keisler, Assistant Attorney General, Civil Division, U.S. Department of Justice (Linda S. Wernery, Senior Litigation Counsel, Office of Immigration Litigation, on the brief), Washington, D.C., for Respondent.

Before: CALABRESI, POOLER, and B.D. PARKER, Circuit Judges.

CALABRESI, Circuit Judge:

Li Zu Guan ("Petitioner" or "Li") petitions this court for review of a June 19, 2002 order of the BIA summarily affirming the September 14, 1998 denial, by an IJ, of Li's requests for asylum and for withholding of removal.² Li sought this relief on the grounds that he and his wife had been persecuted for violating the family planning policies of the People's Republic of China ("China") by having more than one child. The IJ found Li not to be credible, and for that reason denied relief. Before this court, Li asserts that the IJ's findings were not supported by substantial evidence and alleges several specific errors. We agree with Li that the IJ's credibility finding rested, in part, on errors. And because we cannot conclude with confidence that the BIA would reach the same result on remand in the absence of errors, we grant Li's petition for review.

I. Background

A. Li's Claims

Li testified to the following facts at his removal hearing. Except where noted (in footnotes), Li's in-court testimony is consistent with a statement that he submitted in 1997 to accompany his I-589 asylum application ("the I-589 statement").³ Li testified that he had a wife, whom he married in 1982,⁴ and two children in China. In May 1985, about a month after the birth of his daughter and while Li was away from home working on a fishing boat, government officials seized Li's wife and forced her to have an intrauterine device ("IUD") inserted. In August 1986, Li and his wife secured the services of a private doctor, who removed the IUD. They proceeded to have a second child. Li claimed that the government officials did not know that Mrs. Li was expecting a second child because, early in her pregnancy, she went into hiding at her older sister's home on Launchi Island in Fujian Province. A few weeks after giving birth to her son in 1987, Mrs. Li left the new baby with this older sister and returned to their home village of Guantou to live with Li and their daughter. Li's son remained on the island with his maternal aunt for the next four years, and the Lis would visit him there every two or three months.

In 1992, Li brought his son home to see Li's ailing father.⁵ At this time, the child was noticed by the local family planning officials, who insisted that the couple pay a fine of RMB 15,000 and that one of them undergo a sterilization procedure. The officials did not confront the Lis in person, but instead broadcast these sanctions over a loudspeaker to the entire village. Rather than pay the fine and submit to sterilization the Lis and their children fled by boat back to Launchi Island. But, concerned that the government would find his family, Li fled the country in 1993, after more than a year in hiding.⁶ Soon after Li left China in the spring of 1993, Mrs. Li was apprehended by government officials and sterilized against her will.

B. Documentary Evidence

Li also submitted to the IJ a number of documents in support of his claim. Among these were a marriage certificate issued in 1989 ("the 1989 certificate") and a "notarial" marriage certificate⁷ issued in 1998 ("the 1998 certificate").⁸ These certificates were the subject of much attention in Li's removal proceedings. Both certificates contain the same photograph of Li and his wife. The IJ asked how it was that the two certificates, issued nine years apart, featured the same image. Li explained that his wife made a copy of the original picture for use in the notarial certificate, because Li was no longer in China — and hence, unavailable to pose with her for a new photo — when his wife applied for the notarial certificate in 1998.⁹

The IJ ordered a forensic analysis of the two photographs and certificates. Claude Eaton, a Senior Forensic Document Analyst with the INS, submitted his findings in a report. Eaton could not confirm the authenticity of the 1989 certificate, but the 1998 certificate did "conform[] to specimens on file." With respect to the photographs, Eaton concluded that the photo in the 1998 certificate `is the result of photographing a duplicate of the photograph in [the 1989 certificate].' He explained that "PRC marriage certificates are produced in duplicate; one is issued to the female and the other is issued to the female [sic]." Based on a comparison of the images, Eaton further concluded that the 1989 certificate which Li submitted "is the male's copy; the photograph in [the 1998 certificate] is a copy of the female's marriage certificate." He explained that the photo in the 1989 certificate features "an embossed Chinese character from the seal," and the 1998 certificate's photo has a corresponding "photographed Chinese character," but in a different position — meaning that it was copied from a different stamped copy of the same image. Eaton's report also raised the possibility, based on an unexplained shadow, that the original photograph "may be a composite photograph i.e., the photograph may have been composed of two separate photographs."

C. The IJ's Oral Decision

After a brief recitation of the facts, procedural posture, and relevant law, the IJ set forth his grounds for denying both Li's petition for asylum and his petitions for withholding of removal. First, the IJ questioned the corroborating evidence that Li had presented. The IJ focused in particular on the marriage certificates, and the photographs they contained. He noted that the picture in the 1998 certificate was a photograph of the picture in the 1989 certificate. "Therefore," the IJ continued, "it appears that the photograph, whether contained in [either certificate], appears to be a composite photograph." In the IJ's view, this finding reduced Li's credibility dramatically. Li "asserts a statement with regard to his presence in the People's Republic of China with a spouse when the photograph had been taken," but this now "becomes questionable." The faked picture undermines "a material element of his claim, that in fact he's married, and that he has two children." Moreover, because the notarial certificate was not issued until 1998, little weight should be afforded to that document. The IJ also found the notarial birth certificates for Li's children to be unreliable, largely because they were issued so long after the births, and he faulted Li for not producing contemporaneous evidence of the births. The IJ questioned the credibility of the x-ray report, too, because it contained the same photograph that appeared in Li's wife's notarial birth certificate, and because it stated her age as 37, while judging from her birth certificate, she was 36 at the time.

Second, the IJ pointed to Li's failure to provide additional corroborating materials, in particular with respect to his wife's sterilization. Li lacked first-hand knowledge of his wife's sterilization, as he had already fled China when it occurred, but he failed to provide, for instance, an affidavit from his wife "concerning the alleged events, as to the enforcement of the family planning policy."

Third, the IJ addressed Li's testimonial credibility. He noted one specific inconsistency in Li's testimony: his conflicting account of how he how he had located and retained the services of Dr. Lau, who examined the x-rays of Li's wife and wrote the report stating that she underwent tubal ligation. The IJ suggested that the related testimony was "fabricated." More generally, the IJ found Li's demeanor to be hesitant and noted that Li

would continue searching with his eyes when confronted with inconsistencies and conflicting statements concerning his claim for relief. [Li] had taken two or three water breaks during his testimony, which did not appear to be an attempt to quench the thirst, but appeared to [have] been used as an opportunity to formulate a response when confronted with a conflicting inconsistency. Moreover, each time that [Li] was confronted with an inconsistency or conflict, he became defensive with regard to his testimony.

Summarizing, the IJ labeled Li incredible and inconsistent, and held that Li failed to establish past persecution or a reasonable possibility of future persecution. Accordingly, Li's requests for asylum and withholding of removal were denied.

II. DISCUSSION

A. Legal Protections Afforded to Persecuted Aliens

Asylum and withholding of removal under the INA are related, but distinct, forms of relief available to persecuted aliens. To establish eligibility for asylum, an alien must demonstrate that he is a refugee within the meaning of the INA. See 8 U.S.C. § 1158(b)(1); see also Yueqing Zhang v. Gonzales, 426 F.3d 540, 544 (2d Cir.2005). "Refugee" is defined, in relevant part, to include persons unable or unwilling to return to their home countries "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)(A). Even if an alien establishes refugee status, however, the decision to grant or deny asylum is left to the discretion of the Attorney General. See 8 U.S.C. § 1158(b)(1); see also Islami v. Gonzales, 412 F.3d 391, 394 n. 3 (2d Cir.2005) (discussing factors bearing on the exercise of discretion); 8 C.F.R. § 1208.13 (setting standards for granting and denying asylum to...