Liu v. I.N.S.
| Decision Date | 30 January 2007 |
| Docket Number | Docket No. 03-4803-ag. |
| Parties | Gui Yin LIU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
C. Mario Russell, Mark R. Von Sternberg, Catholic Charities Community Services, New York, NY, Amicus Curiae in Support of Petitioner.
Before CALABRESI and STRAUB, Circuit Judges.1
FACTS AND PROCEDURAL HISTORY
Petitioner Gui Yin Liu, a native and citizen of the People's Republic of China, seeks review of an April 2, 2003 order of the Board of Immigration Appeals ("BIA") affirming the May 2, 2001 decision of Immigration Judge ("IJ") Philip L. Morace denying Liu's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Gui Yin Liu, No. A 78 208 279 (B.I.A. Apr. 2, 2003), aff'g No. A 78 208 279 (Immig. Ct. N.Y. City May 2, 2001). Liu claims that he fled China in 1999 after government officials forced his wife to undergo a forcible sterilization procedure, and that he has a well founded fear of future persecution. The IJ concluded that Liu's asylum application was barred as untimely because Liu had failed to demonstrate by clear and convincing evidence that the application was filed within one year of his arrival in the United States, as required by Title 8, Section 1158(a)(2)(B) of the United States Code.2 As part of his application, Liu had submitted a police record which stated, in relevant part: "This is to certify that Liu Gui Yin (male, born on January 4, 1959, currently residing in the USA) had no record of committing offenses against the criminal law up to the date when he left China on June 28, 1999, during his residence in China." Liu's application for asylum was received on June 27, 2000. After recognizing that it was Liu's burden to show by "clear and convincing" evidence that he applied for asylum within one year of his arrival in the United States, the IJ found that the police record was insufficient to meet the clear and convincing standard. The IJ explained: "[T]he document is not a contemporaneously produced document, nor is it a document which indicates for certain that the respondent was indeed there during the aforementioned period." The IJ further reasoned:
For instance, if it was a record to show that he was in the police department on a particular day, or had a receipt in China for a particular reason, or a medical record in China on that date, then it would be more probative to establish that he was indeed still in China as late as 1999. But that document doesn't purport to be any of those things.... [I]t does not demonstrate what the respondent hopes that it would have demonstrated and that is to establish that he was indeed in China in 1999.
The IJ then went on to address the other piece of evidence submitted in support of the proposition that Liu applied for asylum within one year of arriving in the US:
The respondent has submitted an affidavit from his sister-in-law's husband. That affidavit just indicates that the brother-in-law, if you will, received a phone call from the respondent on July 7, 1999 to pick him up at the Yi Dong (phonetic sp.) Restaurant here in New York City. It does not really demonstrate as to when the respondent came to the United States. The affidavit itself contains a few details and the affiant, although in the United States, chose not to appear for examination today.
Finally, the IJ addressed Liu's own testimony with respect to this issue:
With regard to the respondent's own testimony on this issue of the one year bar, unfortunately I find that it was not at all credible. He was very vague throughout this testimony on this issue, very journalized, non-responsive.... The plausibility of some of his responses also was a concern. He indicates for instance, that he had snake heads help him get from the People's Republic of China to Hong Kong and then put[] him on a plane, but then he was put on a plane apparently, according to the respondent's testimony, with no other documentation and no other instructions as to what to do once he arrived at the airport in Los Angeles, California on or about July 5 of 1999, according to the respondent. Again, this seems to defy plausibility. Respondent was very, very vague as to what happened once he got off the airplane. He says he got on the line, then he says he got off the line, then he says he made it to the front of the counter. He indicated that nobody was at the counter. So it's not entirely clear, but suddenly he's outside the airport, apparently without inspection. Again, providing us with very few details or specifics as to how that could have happened. He went to a hotel. First, he could not recall how he got there. Later on, ... he recalled that a Mandarin speaking cab driver helped him get to the hotel and check in. But the next day he's back at the airport purchasing a ticket and once again, it's not clear how he was able to purchase the ticket. He doesn't remember when he boarded the plane ... from Los Angeles to New York. He's not certain of the date that he arrived in New York, but he does remember getting there sometime in the morning....
The IJ accordingly found that Liu had not met his burden of demonstrating by clear and convincing evidence that he had applied for asylum within one year of his arrival in the United States and was therefore ineligible for asylum.
The IJ also denied Liu's claims for withholding of removal and CAT relief, finding Liu's testimony regarding the alleged persecution similarly vague and nonresponsive.
The BIA affirmed the IJ's decision without opinion. On January 30, 2007, we issued a per curiam opinion granting the petition for review and remanding the case to the BIA. Gui Yin Liu v. INS, 475 F.3d 135 (2d Cir.2007) (per curiam). We determined that the agency erred in finding that the asylum application was untimely. Although we recognized that, pursuant to 8 U.S.C. § 1158(a)(3) and 8 U.S.C. § 1252(a)(2)(D), our jurisdiction over such discretionary determinations was limited to "questions of law," we cited Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 327 (2d Cir.2006), for the proposition that jurisdiction may arise in the case of "fact-finding which is flawed by an error of law, such as might arise where the IJ states that his decision was based on petitioner's failure to testify to some pertinent fact when the record of the hearing reveals unambiguously that the petitioner did testify to that fact." Id. at 331 (citing Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir.2004)).
We then vacated the IJ's determination regarding the timeliness of the asylum application, concluding that we had jurisdiction over the issue because the IJ "unambiguously mischaracterized a central element of the record: Liu's record with the Chinese police." Gui Yin Liu, 475 F.3d at 138. We reasoned that the police record "expressly stated that Liu `had no record of committing offenses against the criminal law up to the date when he left China on June 28, 1999, during his residence in China,'" and "[t]he IJ's unambiguous mischaracterization of the record raises a question of law." Id. (emphasis in original). We further concluded that the IJ's adverse credibility determination with respect to the asylum, withholding of removal, and CAT claims was not supported by substantial evidence. Id. at 138-39. Accordingly, we remanded the case to the BIA for reconsideration of Liu's asylum, withholding of removal, and CAT claims.
The government petitions for rehearing, challenging only our determination that we had jurisdiction over the timeliness finding. The government argues that the REAL ID Act permits review of otherwise-barred determinations when "constitutional claims or questions of law" are presented, but that this case involves "essentially a quarrel about fact-finding." The government also argues that the passage in Xiao Ji Chen relied upon by this Court for the proposition that "[t]he IJ's unambiguous mischaracterization of the record raises a question of law," Gui Yin Liu, 475 F.3d at 138, is dicta, but that, in any event, the IJ in this case did not unambiguously mischaracterize the record.
We appointed Lee Gelernt of the American Civil Liberties Union's Immigrants' Rights Project ("IRP") as amicus curiae on behalf of petitioner. Subsequently, Mario Russell of Catholic Charities Community Services ("Catholic Charities"), who had previously served in this case as amicus, moved to appear as amicus as well, and we granted that motion. Amicus IRP argues that Xiao Ji Chen was correctly decided, and that this Court was correct in stating that an unambiguous mischaracterization of the record amounts to a "question of law," because "[u]nder longstanding doctrine, a factual error amounts to a due process violation where there is not even `some evidence' to support the finding." IRP takes no position on whether the IJ's findings with respect to the police report amounted to an unambiguous mischaracterization of the record. Amicus Catholic Charities makes similar arguments, but also argues in a conclusory fashion that the IJ made an unambiguous mischaracterization of the record because "[t]hat the police record ... unambiguously stated Petitioner had left China on a particular date cannot be disputed."
...
To continue reading
Request your trial
-
Bah v. Mukasey
...case[s] to an IJ for further findings of fact." Delgado v. Mukasey, 508 F.3d 702, 708 (2d Cir.2007). See also Gui Yin Liu v. INS, 508 F.3d 716, 723 (2d Cir.2007) (per curiam) (remanding to the BIA with instructions to remand to the IJ "if necessary" to further develop factual For the forego......
-
Jezierski v. Mukasey
...an administrative decision; all the court can decide is whether the Board committed an error of law. [See also Liu v. INS, 508 F.3d 716, 720-21 (2d Cir.2007) (per curiam).] That will usually be a misinterpretation of a statute, regulation, or constitutional provision. But it could also be a......
-
Lumataw v. Holder
... ... Mukasey, 517 F.3d 8, 9 (1st Cir.2008) (internal quotation marks omitted). Under the substantial evidence ... 582 F.3d 84 ... standard, this court may not reverse the decision below unless the record compels a contrary conclusion. See INS v. Elías-Zacarías, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (applying this standard); Acevedo-Aguilar, 517 F.3d at 9 (same). Whether a petitioner has demonstrated past persecution is usually a factual determination subject only to the highly deferential substantial evidence ... ...
-
Khan v. Filip
...some of our sister circuits to permit review of the agency's application of law to facts if the facts are undisputed. See Liu v. INS, 508 F.3d 716, 722 (2d Cir.2007) (recognizing the possibility of exercising jurisdiction over discretionary decisions based on "unambiguous mischaracterizatio......