Lin v. Ashcroft

• Decision Date: 22 September 2004
• Docket Number: No. 03-1102.,03-1102.
• Citation: 385 F.3d 748
• Parties: Xia J. LIN, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 748

385 F.3d 748

Xia J. LIN, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.

No. 03-1102.

United States Court of Appeals, Seventh Circuit.

Argued December 8, 2003.

Decided September 22, 2004.

Petition for review from the Board of Immigration Appeals.

Steven A. Greenberg (argued), Chicago, IL, Jeffrey C. Bloom, Bloom & Associates, Flushing, NY, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Carolyn M. Piccotti (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Xia J. Lin claims that the Chinese government forced her to abort two pregnancies under its coercive family planning policies and will subject her to involuntary sterilization if she is forced to return to China. Lin filed for asylum, withholding of removal, and protection under the United Nations Convention against Torture. The Immigration Judge (IJ) denied all relief because he concluded that Lin was not credible, a ruling the Board of Immigration Appeals (BIA) summarily affirmed. We vacate the removal order and remand Lin's case for rehearing because the IJ's adverse credibility determination was not supported by substantial evidence.

I

Lin is a 35-year-old native of Wenzhou City in the Zhejiang Province of China. At the age of 19, she married her husband, who was 22 at the time. Because Lin and her husband married before they had reached the legally permissible age — 23 for women and 25 for men — they were unable to register their union for several years after the ceremony. To corroborate this fact, Lin submitted to the IJ an original copy of a marriage certificate issued in 1992, five years after the wedding. Lin and her husband both worked for state-owned enterprises, she as a store clerk and he as a factory laborer. Several months after they were married, Lin gave birth to a daughter. When she arrived at the hospital for the delivery, Lin was unable to produce the required "birth permit" because her marriage had not yet been registered with the government. Lin testified that she and her husband paid a fine of 50 Renminbi (RMB) to the hospital for failure to produce the birth permit and were assessed a fine of 14,400 RMB ($1,735) for having a child before Lin had turned 23 years of age. She corroborated this claim by submitting a copy of a fine for 50 RMB that gave as its stated reason "no birth permission," see A.R. 278, and a copy of another fine in the amount of 14,400 RMB which was assessed for "marrying too early; having child too early." Id.

Six months after her daughter was born, family planning officials inserted an intrauterine device ("IUD") in Lin to prevent future pregnancies. Because Lin and her husband wanted more children, she paid a private doctor to remove the IUD in February 1989, and became pregnant for the second time in March. Fearing that she would be forced to abort her pregnancy, Lin fled to her brother's house and did not show up for her quarterly IUD checkup in May 1989. Although she tried to avoid detection by remaining indoors, Lin believes that somebody reported her pregnancy to family planning officials. Lin claims that eight people arrived at her brother's house one night to take her to the hospital for an abortion. Lin's relatives fought with the officials and Lin pleaded with them to allow her to bring her four-month pregnancy to term. These protestations fell on deaf ears as the officials took her "by force" to the Second People's Hospital of Wenzhou City, where doctors aborted her pregnancy.

One month after the first abortion, Lin was fined 1,000 RMB and had another IUD inserted. She attended her IUD checkups without incident until May 1995, when she again paid a private doctor to remove the contraceptive device. One month later, Lin became pregnant for the third time. Afraid to stay home while she was pregnant, Lin left her job and went to stay with her sister. She was tracked down by family planning officials shortly after she missed her IUD checkup in December 1995. Lin testified that the officials were "very aware" of her situation after the first abortion and that she believed someone had once again reported her unauthorized pregnancy to the government. This time about ten people arrived at her sister's home, again at night. When Lin refused to voluntarily submit, the officials took her to the Dongfeng Hospital for a second abortion. She was six months pregnant at the time. Lin explained to the IJ that she did not have evidence to show that the abortion was forced because such documentation is provided only for voluntary procedures. She testified: "If I could get evidence ... that would prove to you that that abortion was voluntary. Because it was involuntary, I couldn't produce that evidence."

Lin returned home after the second abortion, for which she was fined 1,500 RMB, and had an IUD inserted again by family planning officials in January 1996. She did not return to work. Her husband's employer threatened to dismiss him if Lin had any further problems with the family planning officials or became pregnant again. Despite this threat, Lin paid a private doctor to remove her IUD for the third time in September 1998. When she became pregnant shortly thereafter, she decided that it was time to leave China. With the assistance of smugglers, a pregnant Lin traveled through Thailand, Singapore, and Japan before arriving in the United States on May 3, 1999. After landing at the Los Angeles airport, Lin was detained and questioned by immigration officials. Because Lin did not have valid travel documents, the government instituted removal proceedings. Lin conceded removability and requested asylum, withholding of removal, and protection under the Torture Convention. With the assistance of counsel, Lin's case was transferred from California to New York, where Lin had moved to live with friends. Lin appeared briefly before an IJ in New York but requested a second venue change to Chicago after her move to Illinois. The government did not oppose either venue change and Lin's asylum hearing occurred in Chicago.

At her asylum hearing, Lin testified that she was nervous during her interview with immigration officials at the Los Angeles airport. She was worried about being sent back to China while she was pregnant. In her sworn statement from that interview, Lin said that she left China because it is against the law to have two children under the "one-child policy." She said that she was afraid to return to China because she would be arrested for leaving without permission. When asked about the "purpose of her trip," Lin responded: "Economy is bad in China and I am pregnant 7 months. [I] need to provide for my child in China. I am here to look for a job."

Lin told the IJ that her second child, a daughter born in the United States, had returned to China to live with Lin's parents while she worked in America to pay off her $20,000 smuggling debt. Lin also explained that after she left China in April 1999, government officials informed her husband that their oldest daughter could not register for school until the hefty 14,400 RMB fine imposed at the child's birth was paid in full. To support this claim, Lin submitted a copy of the fine which was dated July 19, 1999.

The IJ denied Lin's request for asylum, withholding of removal, and relief under the Torture Convention based on an adverse credibility determination. (On appeal, Lin has abandoned her request for relief under the Torture Convention by failing to raise it in her opening brief. See, e.g., Hentosh v. Herman M. Finch Univ. of Health Scis./The Chi. Med. Sch., 167 F.3d 1170, 1173 (7th Cir.1999) ("Arguments not raised in an opening brief are waived.") (citing Wilson v. O'Leary, 895 F.2d 378, 384 (7th Cir.1990)).) The IJ determined that Lin's testimony was not believable and that she could not meet her burden of proof "without necessary corroboration of the incidents in the past." Specifically, the IJ gave two reasons for disbelieving Lin's story. First, he concluded that Lin's "sole motivation for coming to the United States was economic," rather than fear of China's coercive population control policies. In the IJ's estimation, the fact that Lin sent her second child back to China "undercut" her testimony that she was concerned about the consequences of having an unauthorized child. Second, the IJ decided that Lin's descriptions of her two forced abortions were implausible and were inconsistent with "general background reports." The IJ found it hard to believe that eight or ten people arrived to escort Lin to the hospital for her abortions. After making this credibility determination, the IJ further found that Lin had not sufficiently corroborated her alleged persecution through third-party affidavits. The IJ thought that Lin should have been able to produce this corroboration because she has remained in contact with her family in China.

II

A

When the BIA affirms an IJ's ruling without opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision directly. Vladimirova v. Ashcroft, 377 F.3d 690, 2003 WL 23676865, *5 (7th Cir. July 26, 2004). To qualify for asylum, Lin bears the burden of proving that she meets the statutory definition of "refugee" as provided in the Immigration and Nationality Act (INA). This definition generally provides that a refugee is "any person who is outside any country of such person's nationality ... who is unable or unwilling to return to ... that 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." See 8 U.S.C. § 1101(a)(42)(A). This generally applicable definition has been amended to specifically account for applicants like Lin who allege persecution...