Lin v. U.S. Dept. of Justice

• Decision Date: 03 August 2006
• Docket Number: Docket No. 04-0917-AG.
• Citation: 459 F.3d 255
• Parties: Zhen Nan LIN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

459 F.3d 255

Zhen Nan LIN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Respondent.

Docket No. 04-0917-AG.

United States Court of Appeals, Second Circuit.

Argued: March 22, 2006.

Decided: August 3, 2006.

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Theodore Cox, (David X. Feng, on the brief), New York, NY, for Petitioner.

Amy S. Howe, Assistant United States Attorney (Thomas, E. Moss, United States Attorney for the District of Idaho, on the brief), Boise, ID, for Respondent.

Before STRAUB and SACK, Circuit Judges, and TRAGER, District Judge.^*

STRAUB, Circuit Judge.

Petitioner Zhen Nan Lin ("Lin") (Case No. A75 559 667), a citizen and native of the People's Republic of China, petitions this court for review of the January 28, 2004, decision of the Board of Immigration Appeals (BIA) reversing Immigration Judge (IJ) Annette S. Elstein's grant of asylum and withholding of removal. In re Zhen Nan Lin, No. A75 559 667 (B.I.A. Jan 28. 2004), rev'g No. A75 559 667 (Immig. Ct. N.Y. City May 1, 2002). Lin entered the United States without inspection along the Canadian border in August 1997, and on November 28, 1997, applied for asylum based on his political persecution by the Chinese government. The IJ found that Lin's story of imprisonment and political persecution was credible and that he qualified for asylum and withholding of removal. The IJ dismissed as unreliable a report from the United States Consulate in Guangzhou (the "Consular Report"), stating that the certificate of release from prison (the "Certificate of Release") that Lin submitted in support of his asylum application was a forgery. Further, the IJ held that the State Department and the Immigration and Naturalization Service (INS)¹ had violated Lin's right to confidentiality by sending a copy of the Certificate of Release to the Prison Administration Bureau of Guangdong² Province (the "Prison Bureau").

The INS appealed, and the BIA reversed the IJ's decision. Relying on the Consular Report, the BIA concluded that the Certificate of Release was a forgery, and, therefore, that Lin's testimony was not credible. The BIA also held that the government had not violated Lin's confidentiality. Lin argues on appeal that the BIA's adverse credibility finding is not supported by substantial evidence and that the government's disclosure has made it more likely that he will be persecuted upon his return to China. We agree that the government violated the confidentiality guarantee of 8 C.F.R. § 208.6. We further conclude that the BIA's adverse credibility finding was not supported by substantial evidence as it was based on the unreliable Consular Report. Accordingly, the petition for review is granted.

BACKGROUND

I. Factual Background

Lin testified as follows. He was born and raised in Guangzhou, China. He graduated from Chai Nan University, a school with approximately eight-thousand students. In 1989, while attending Chai Nan, Lin became involved in the pro-democracy movement and became the leader of the movement's student group. During that year, he led four student protests in support of the pro-democracy movement in Beijing.

After the Chinese government's massacre of students and other protestors in Tiananmen Square on June 4, 1989, Lin and his student group began to print leaflets with slogan's like "the blood of the students" lost in Beijing is not in vain. We have to seek justice for them or "Li Peng [the Chinese Premier at the time of the Tiananmen Square massacre] is the culprit." Lin would hide the leaflets in his sleeves and secretly hand them out to people on the street. On June 24, 1989, Lin handed out anti-government leaflets to two undercover public security officers, who immediately arrested him. The officers took him to a police station where they interrogated and beat him to extract a confession and information about his fellow activists. Lin was detained at the police station for approximately five weeks. During that time, he suffered four beatings by the public security officers, which caused him severe pain.

On August 30, 1989, Lin was brought before a judge on charges of supporting the Tiananmen Square protests, attempting to overthrow the government, and handing out counter-revolutionary leaflets. He was convicted and sentenced to five-years' imprisonment with forced labor and reeducation. He served his sentence in prison number seven located in Nanmun, a suburb of Guangzhou city. Six months after arriving at the prison, Lin began attending mandatory reeducation class approximately twice a week. He was released from prison on September 3, 1994. The prison issued Lin a Certificate of Release as proof that he had completed his sentence.

After his release, Lin lived with his parents and worked as an accountant in a construction company. Because of his criminal record, he was shunned by his co-workers and questioned and harassed by his superiors. For a year and a half, Lin focused on working hard and did not become involved in politics.

In October 1996, Lin learned that Wang Dan, a prominent pro-democracy leader, had been arrested.³ Lin prepared a petition demanding Wang Dan's release. After circulating the petition, he sent one copy to the Beijing Municipal Government, and he and two of his former classmates brought another copy to the Guangzhou Municipal Government building. While waiting to be admitted to see the Guangzhou officials, Lin and his classmates made speeches outside the government building to a crowd of approximately 100 people. After a few hours, Lin was admitted to see a local official, who stated that he would forward Lin's petition to Beijing.

Later that night, Lin awoke to the sound of people yelling and banging on the door of his house. He saw from a window a group of people dressed in plain clothes standing outside his door. Lin believed that these people were public security officers coming to arrest him for circulating the petition and making anti-government speeches. Lin hid and did not answer the door. After the people left, he fled to his uncle's house, and the following day, he traveled to his cousin's house where he remained for one month. Soon after Lin arrived at his cousin's house, public security officials searched his uncle's house looking for him. He then moved to his girlfriend's uncle's house where he stayed for a period of three months until his family and friends raised enough money for him to leave China. Lin arrived in the United States on August 29, 1997, and filed an application for asylum and withholding of removal on November 28, 1997.

II. Procedural History

On January 20, 1998, the INS served Lin with a notice to appear, charging him with removability under section 212(a)(6)(A)(I) of the Immigration and Naturalization Act (INA). At a hearing before the IJ on February 17, 1998, Lin admitted the allegations in the notice to appear and conceded removability. On July 15, 1998, Lin appeared for his individual hearing, testified to the facts detailed above, and submitted documents in support of his application. The IJ granted Lin a continuance to authenticate the documents, including the Certificate of Release, and for the government to send the documents for a forensic evaluation. The authentication of the documents, however, took longer than expected, and Lin's hearing was continued five more times. During this period, Lin switched attorneys. Both of Lin's attorneys told the IJ that they were attempting to authenticate the Certificate of Release.

On October 12, 2000, the government submitted the Consular Report to the IJ and maintained that it proved the Certificate of Release was a forgery. The Consular Report consists primarily of two documents.⁴ The first document, dated June 1, 2000, is a fax from the Prison Bureau, to Martin Steiner, a member of the Anti-Fraud Unit of the U.S. Consulate General in Guangzhou (the "Steiner Letter"). The following is a translation of the entire text of the Steiner Letter: "We have received your inquiry for verification of the authenticity of LIN, Zhen Nan's Certificate of Release. Through investigation, LIN, Zhen Nan's Certificate of Release (Guang Qi Jian Releasing No. 94-339) is counterfeit and invalid." The second document is a Report of Investigation from Susanna Liu, an investigator with the INS office in Guangzhou (the "Liu Report"). The entire text of the Liu Report is the following:

Predication of investigation:

The investigation was predicated on receipt of a letter from [Assistant District Counsel] Meagen R. Sleeper requesting verification of documents submitted to support a claim for benefits. The documents included a Certificate of Release issued by Guangzhou No. 7 Prison on September 3, 1994.

Results:

A call from Prison Affairs Section of Prison Administration Bureau of Guangdong Province certifies that the Certificate of Release was fabricated. There is no No. 7 Prison in Guangzhou at all.

The government concedes that it provided the Prison Administration Bureau with an unredacted copy of the Certificate of Release.

Based on these two documents (to which we will refer collectively as the "Consular Report"), the government argued that under In re O-D-, 21 I. & N. Dec. 1079, 1083 (BIA 1998), Lin's application should be denied because he submitted a forged document. In her written decision of May 1, 2002, the IJ rejected this argument and held that Lin was entitled to asylum and withholding of removal. The IJ found that Lin testified credibly about his arrests, imprisonment, and beatings and that they occurred because of his political activity. The IJ held that "the method used by the [INS's] investigator at the U.S. Consulate in Guangzhou to authenticate the Certificate gives this Court cause to question the validity of the report's conclusion." The IJ concluded that the INS's submission of the Consular Report to the Prison Bureau put the Chinese authorities "on notice that a Chinese national previously convicted of...