Lin v. Holder

• Decision Date: 12 July 2010
• Docket Number: No. 09-1269.,09-1269.
• Citation: 611 F.3d 228
• Parties: JIAN TAO LIN, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

611 F.3d 228

JIAN TAO LIN, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-1269.

United States Court of Appeals Fourth Circuit.

Argued: May 11, 2010.

Decided: July 12, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Joshua E. Bardavid, Law Office of Joshua Bardavid, New York, New York, for Petitioner. Todd J. Cochran, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel, United States Department of Justice, Washington, D.C., for Respondent.

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Petition for review granted; vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge DUNCAN joined.

OPINION

KING, Circuit Judge:

Jian Tao Lin petitions for review of the February 2009 final order of the Board of Immigration Appeals (the “BIA”) affirming the denial of his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (the “BIA Decision”). Lin's primary contention is that an adverse credibility determination, made against him by an Immigration Judge (the “IJ”) and ratified by the BIA, was erroneously predicated on facts derived from another applicant's unrelated case. As explained below, we grant the petition for review, vacate the BIA Decision, and remand.

I.

A.

Lin and his wife, Xue Yun Zheng (“Zheng”), are from China's Fujian Province, “a place where the one-child policy has been enforced with special vigor-a reputation that persists still today. Local officials in Fujian Province have employed unspecified measures to deal with out-of-plan pregnancies, and, notwithstanding a purported national policy to the contrary, forced sterilization and abortion are prevalent in rural areas.” Li Fang Lin v. Mukasey, 517 F.3d 685, 688 (4th Cir.2008) (alteration, citation, and internal quotation marks omitted). Based on his having run afoul of China's one-child policy, Lin has sought asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”).

As detailed in Lin's application and testimony before the IJ, the couple's first child (a girl) was born in December 1997, when Lin was twenty years old and Zheng was nineteen. Because the legal age for marriage in China is twenty-two for men and twenty for women, the couple was not married at the time of their daughter's birth, rendering it unauthorized. To prevent the authorities' discovery of this unauthorized birth, Lin and Zheng sent the infant to be raised by Lin's older sister. Thereafter, upon Lin reaching marital age in 1999, the couple obtained a marriage permit and, in August 2000, their second child (a boy) was born. After their son's birth, Zheng was required to wear an intrauterine device (an “IUD”) and report for quarterly examinations so the authorities could ensure that the IUD was in place and she was not pregnant.

During such an examination in March 2001, it was discovered that-notwithstanding the IUD and unbeknownst to the couple-Zheng was again pregnant, prompting the authorities to subject her to a forced abortion. Lin testified that he learned of the abortion when Zheng returned home following the procedure and that he “was very angry” because, like his wife, he wanted more children. See J.A. 127.¹ Subsequently, in March 2002, the village officials learned of the couple's daughter and threatened Lin and Zheng with sterilization. Lin explained that the authorities planned to seize him and his wife from their home to effect this sterilization. Having been warned of the plan, however, the couple was able to flee before the authorities arrived. Following this incident, Lin's family was required to pay an “[e]xcessive births fee” of 10,000 Renminbi (“RMB”) so that the daughter could be listed on the household registry. See id. at 199.

While Lin remained in hiding in China, his wife Zheng fled to the United States in the summer of 2002. A few months later, Zheng applied in New York for asylum, withholding of removal, and CAT protection based on the foregoing events. In October 2003, a New York IJ denied Zheng's application on adverse credibility grounds. In 2005, the BIA affirmed the New York IJ's decision in a per curiam, one-line order, and thereafter denied Zheng's motion to reopen the proceedings.

In the interim, Lin likewise fled to the United States, leaving the couple's two children with relatives in China. On November 5, 2003, Lin called Ren Ji Zheng (“Ren Zheng”), a relative who lived in New York City, and requested that Ren Zheng meet Lin the next day at Confucius Plaza in New York City. During the phone call, Lin explained that he was in Canada but would be in New York by the next afternoon. Following Lin and his wife Zheng's reunification in New York, she became pregnant with the couple's third child. On November 21, 2004, Zheng gave birth to another daughter, an American citizen.

B.

1.

In the meantime, at an IJ hearing in New York on November 5, 2004, Lin conceded removability but sought relief through asylum, withholding of removal, and the CAT.² In support of his application, Lin submitted affidavits from himself and Ren Zheng; documentation of his children, identity, and marriage; evidence supporting his claims of past persecution; and an expert's affidavit detailing China's extremely coercive population control measures (the “Aird Affidavit”). For example, Lin submitted Notarial Birth Certificates for his Chinese-born children. These certificates include pictures of the children, provide the dates and places of their births, and identify Lin and Zheng as their parents. Lin also provided seal-bearing hospital birth certificates for the children. Moreover, he proffered a seal-bearing Household Registry Booklet containing household registration forms issued on September 23, 2000, for his son, and October 14, 2002, for his daughter. Additionally, Lin submitted the “Receipt of Collecting Beyond Plan Birth Fee”-the receipt for the 10,000 RMB “[e]xcessive births fee” associated with his daughter-also issued on October 14, 2002. See J.A. 199. Further documentation included the official marriage registration for Lin and Zheng, as well as their resident identity cards.

Notably, Lin also submitted Zheng's “Child-Bearing-Age Woman Examination Certificate” booklet from the MinHou County Family Planning Committee. See J.A. 193. The booklet explained that a “[c]hildbearing woman who meets the ring and pregnant checkup requirement [is] issued this certificate.” Id. at 197. Among the “[i]mportant things for childbearing women” specified in the booklet is that “[t]hose who have beyond-planned birth must immediately use supplementary measures and state the date of abortions in the handling result column.” Id. According to the booklet, after Zheng gave birth to her son in China in August 2000, she underwent the “[h]andling result” of having an IUD inserted in October 2000. Id. at 194. The booklet also detailed, inter alia, that, after discovering that Zheng was pregnant in March 2001, the “[h]andlers” “[i]nduced abortion” and, in April 2001, inserted a new IUD. Id. at 195. In further corroboration of these events, Lin submitted various seal-bearing operation certificates from FuZhou City hospitals detailing the March 2001 abortion and the October 2000 and April 2001 IUD insertions. Additionally, Lin submitted documentation from Zheng's American doctors substantiating the removal of her IUD and subsequent pregnancy, including her anticipated delivery date of November 29, 2004.³

2.

Following the initial IJ hearing in New York, Lin's removal proceedings were transferred to Maryland as a consequence of Lin and Zheng's move to that state. On November 2, 2006, the IJ conducted Lin's merits hearing, at which Lin and Ren Zheng, the relative who had collected him in New York, testified. In its cross-examination of Lin, the Government sought to impeach him through his wife's testimony at her own IJ hearing regarding post-abortion events. According to the Government, Lin's wife stated that upon leaving the hospital after her forced abortion, she went to her mother's house, where she remained for twenty days. Specifically, the Government declared:

Now this is what your wife testified to in her hearing. She was asked, “After you left the hospital where did you go?” She answered, “I went to my mother['s].” And she was asked, “How long did you stay there?” And she answered, “About 20 days.” Then she was asked, “Where did you go after that?” And she answered, “And then my mother-in-law made a phone call to me and told me that my son had a fever and I went home.” Now you've testified that you saw your wife at your house the day after she had her abortion. After she was released from the clinic, from the hospital and this was the same day. And you also indicated that between the time that she left the hospital and the time that you saw her at your house she didn't go anywhere else. Can you explain why this is different than what your wife has stated?

J.A. 132. In response to this convoluted inquiry, Lin speculated that Zheng was “probably too nervous and she make mistake.” Id. at 133.

In the IJ merits hearing, the Government also advanced the proposition that Lin's claims were barred, either by issue preclusion or res judicata, because his wife's claims (involving identical supporting facts) had been denied. Accordingly, as its evidence, the Government submitted the IJ and BIA decisions resolving Zheng's application, as well as a State Department report on China. ⁴ At the conclusion of Lin's merits hearing, the IJ ordered the Government to brief whether res judicata and issue preclusion were applicable in this situation; the IJ also authorized Lin's counsel to file a response brief to the Government's submission. Finally, the IJ scheduled another hearing for March 22, 2007, when he would render his decision.

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