Lin-Jian v. Gonzales

• Decision Date: 30 May 2007
• Docket Number: No. 05-1693.,05-1693.
• Citation: 489 F.3d 182
• Parties: Chen LIN-JIAN, a/k/a Jian Cheng Lin, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

489 F.3d 182

Chen LIN-JIAN, a/k/a Jian Cheng Lin, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-1693.

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2006.

Decided: May 30, 2007.

ARGUED:

Yee Ling Poon, New York, New York, for Petitioner. Lauren A. Wetzler, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Respondent.

ON BRIEF:

Robert Duk-Hwan Kim, New York, New York, for Petitioner. Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Respondent.

Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.

Petition granted in part and denied in part by published opinion. Judge TRAXLER wrote the majority opinion. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part. Judge SHEDD wrote an opinion concurring in part and dissenting in part.

OPINION

TRAXLER, Circuit Judge.

Chen Lin-Jian, a native of the People's Republic of China, claims that he fled to the United States in order to escape China's "one couple, one child" policy. Lin concedes that he is removable for being present without having been admitted or paroled into the United States, see 8 U.S.C. § 1182(a)(6)(A)(i), but seeks relief from removal via political asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The Immigration Judge denied Lin's application for all three forms of relief and the Board of Immigration Appeals ("BIA") summarily affirmed this denial.

Lin petitions this court for review of the BIA's decision. We grant the petition for review as to Lin's claims for asylum and withholding of removal and remand these claims for further evaluation. However, we deny Lin's petition for review of the BIA's denial of relief under the CAT.

I.

A.

Lin and his wife, who remains in China, are from a rural area near Changle City in China's Fujian Province. According to Lin, the couple married in 1993 and they have two children who also remain in China. Their first child, a daughter, was born in April 1994, and the second child, a son, was born in August 1995. For proof of his two children, Lin submitted Notarial Birth Certificates that include pictures of the children, provide their birthdates and birthplaces, and identify Lin and his wife as the parents. The certificates were issued in May 2003 by the Changle City Notary Public Office. Lin also submitted the children's Permanent Resident Registration Cards which include their birthdates and note their relationship to Lin; a Changle City family-planning check-up card indicating that Lin and his wife have a male child born in August 1995 and a female child born in April 1994; and a family photo.

Lin claims that, after the birth of his daughter, family-planning officials indicated the couple would be required to wait five years before they could have a second child and directed them to use contraceptive measures. At his asylum hearing, Lin testified that in his area of the Fujian province, couples are allowed two children, five years apart. Lin's assertions were consistent with the State Department's 1998 profile of conditions in China submitted by Lin. According to the report, officials in both urban and rural areas of the Fujian province did not follow a strict one-child policy, often permitting a second child if the first is female and the parents wait for a given number of years between children. See Report of U.S. Dept. of State, China: Profile of Asylum Claims and Country Conditions, at 20 (April 14, 1998) ("1998 Report").

Despite the order that they wait five years, Lin claims that his wife gave birth to their son sixteen months later. Lin testified that family-planning officials did not immediately discover the unauthorized birth; rather, they became aware of Lin's second child the following year in December 1996 when Lin's parents went to file a household registration for Lin's son. Lin testified that the government imposed a fine of 10,000 RMB, which Lin testified was the equivalent of $1,000 at the time. Lin paid the fine and submitted a receipt evidencing payment of the fine on December 15, 1996, for "violation of [the] birth interval." J.A. 227.

According to Lin's affidavit, family-planning officials also ordered that Lin's wife be sterilized. Lin claims "one of our relatives with connection[s] to the cadres" persuaded them "not to sterilize us" but to use an "IUD instead." J.A. 179. In support, Lin submitted a document entitled "Changle City Certificate of Family Planning Operation," which indicates that Lin's wife underwent an IUD insertion procedure on December 16, 1996. Lin also notes that his wife was directed to submit to regular gynecological exams as reflected by the pregnancy checkup cards he offered into evidence. This document lists these official pregnancy check-up visits from January 1997 to September 2001, each of which is initialed by the "Cadre-in-charge" and a doctor. Notations for the final visit indicate that the IUD was still in place and Lin's wife was not pregnant at the time.

According to Lin's affidavit, he and his wife hired a private doctor in December 2001 to remove the IUD, and, in April 2002, Lin's wife again became pregnant. Lin's affidavit asserted that his wife hid from family-planning officials at her parents' house in LuBei village, which is part of Changle City. Lin claims this move was unsuccessful, however, as officials appeared at his mother-in-law's house on August 21, 2002, and "forcibly took [Lin's] wife to Changle City Hospital where she was involuntarily aborted on that day." J.A. 179. Lin testified that at the time the political cadre took Lin's wife for an abortion, he was away in Fuzhou City where he worked in construction. Lin learned about the abortion when his mother-in-law called him that morning; Lin says he did not see his wife until 10:00 p.m.

After the abortion was performed, family-planning officials indicated that Lin's wife would be required to undergo sterilization. Lin claims that this threat caused them to flee Changle City the day after the abortion to hide in the home of Lin's uncle in Fuzhou City — which is also in the Fujian Province — leaving their children in the care of Lin's parents in Changle City. At the hearing, Lin testified that his parents brought the children to visit his wife, but Lin did not indicate whether they came to visit more than once. To corroborate his testimony, Lin produced, in addition to the evidence already mentioned, a declaration from his wife which was signed but not notarized. The declaration was consistent with Lin's testimony in all major respects.

In December 2002, approximately four months after Lin and his wife relocated to Fuzhou City, Lin fled China, leaving his wife at his uncle's house in the hope that, "if the cadres found [her], they might not sterilize her since I[am] no longer in China." J.A. 180. Lin testified that he fears returning to China because he believes that he will be forcibly sterilized.

During cross-examination, Lin acknowledged that he left China with the help of a so-called "snakehead" who procured for Lin a Chinese passport bearing Lin's picture but a false name.¹ Lin indicated that he used his own identification card to board a plane from Changle City to Hong Kong. In Hong Kong, however, Lin was forced to use the false passport to board an international flight to Mexico and then to the United States, for which the snakehead had procured visas. (J.A. 109) Lin testified that he agreed to pay the snakehead $10,000, which he borrowed from relatives and friends. He admitted working illegally in the United States in order to repay this debt.

B.

In an oral decision, the immigration judge (IJ) concluded that "[b]ased on the totality of the evidence," Lin-Jian failed to establish past persecution or a well-founded fear of future persecution and, therefore, was ineligible for asylum. J.A. 47. In explaining her conclusion, the IJ felt certain aspects of Lin's testimony were implausible, undercutting Lin's assertion that he feared persecution. For example, the IJ questioned whether someone who feared being discovered by the authorities to the point that he went into hiding with his wife, as Lin claimed, would continue to report for work at a construction site. The IJ also dismissed Lin's testimony that he was forced to work in order to support his family, reasoning that if Lin "was able to borrow $10,000 U.S. dollars from relatives to pay a snakehead" then "he could have borrowed money from relatives while he remained in hiding." J.A. 48. Additionally, the IJ found it unlikely that a couple in hiding from family planning cadre would permit their children to be brought to the hiding place on a regular basis to visit.

The IJ concluded that Lin's testimony regarding the circumstances of his departure from China likewise undermined Lin's claim of a well-founded fear of persecution. The IJ noted that, had Lin truly been fearful of sterilization, he would not have presented his own identification card when boarding the plane in Changle City but "would have made arrangements with the snakehead for an alternate way of leaving the country." J.A. 49.

The IJ suggested that the documents submitted by Lin to prove the existence of his two children were lacking. Citing Matter of Ma, 20 I & N Dec. 394 (BIA 1991), the IJ noted that when notarial birth certificates are "issued a period of time after the subject's birth . . . any and all supporting evidence should accompany such certificates as evidence of the claimed relationship." J.A. 48. The IJ considered the Permanent Resident Registration Cards which set forth the children's dates of birth and relationship with Lin but found them "not of great assistance" because Lin's registration listed his occupation in 2001 as that of farmer, not construction worker as Lin had testified. J.A. 61.

Finally, the IJ observed that none of the government documents submitted by Lin had...