Qiu v. Ashcroft

Decision Date16 April 2003
Docket NumberDocket No. 00-4264.
Citation329 F.3d 140
PartiesJin Shui QIU, Petitioner, v. John ASHCROFT, United States Department of Justice, Attorney General, Respondent.
CourtU.S. Court of Appeals — Second Circuit

Before: CALABRESI, B.D. PARKER and RAGGI, Circuit Judges.

CALABRESI, Circuit Judge.

Petitioner Jin Shui Qiu seeks review of a November 30, 2000 decision of the Board of Immigration Appeals ("Board" or "BIA"), rejecting Qiu's appeal of an Immigration Judge's ("IJ") ruling, dated September 2, 1994. That ruling denied Qiu's application for asylum in the United States and for withholding of deportation to the People's Republic of China ("China"). Qiu had sought asylum and withholding of deportation principally on the ground that he and his family had suffered various indignities and injuries, among them the forced sterilization of his wife, under China's coercive program of population control. At the time of the IJ's decision, the Board did not recognize forced sterilization as a basis for asylum. See Matter of Chang, Int. Dec. No. 3107, 1989 WL 247513 (BIA May 12, 1989). Between the time of the IJ's decision and the BIA's consideration of Qiu's appeal, however, Congress amended the Immigration and Nationality Act to recognize such sterilization as a basis for asylum and for withholding of deportation. See Pub.L. No. 104-208, § 601(a)(1), 110 Stat. 3009-698 (1996) (now codified at 8 U.S.C. § 1101(a)(42)). Nonetheless the BIA declined to vacate or reverse the IJ's decision, holding that Qiu's testimony was too vague and insufficiently corroborated to meet his burden of proof.

We vacate the ruling of the BIA because its holding turns on (1) a mistaken assessment of what it means for testimony to be too "vague" to establish refugee status; (2) demands for corroborative evidence that are not properly explained; (3) factual determinations that are not supported by substantial evidence; and (4) a failure to consider important elements of Qiu's testimony. The case is remanded to the BIA, and the BIA is instructed to remand the matter to an IJ for a new hearing.

I. BACKGROUND
A. Qiu's Illegal Entry

Qiu, a citizen of China and former resident of Fujian Province, attempted to enter the United States illegally on December 29, 1992. He was intercepted by INS agents and, since he did not possess a valid, unexpired visa or travel document, he was charged with excludability under the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), (B)(i)(I), and (B)(i)(II). The following April, Qiu, assisted by counsel, applied for asylum and for withholding of deportation. His hearing took place almost a year and a half later, on September 2, 1994.

B. Proceedings Before the Immigration Judge

The hearing began with Qiu submitting into evidence a copy of his household registry, a certificate of sterilization, a fine payment receipt, English translations of these items, and, by way of background material, a New York Times article and a State Department report on China's birth control program, as carried out in Fujian Province. Speaking through an interpreter (who rendered Qiu's testimony into ungrammatical, hard-to-follow English), Qiu testified that he was born and raised in Fujian Province, and that he had received two-and-a-half years of formal education. He married his present wife in 1976, but, as the newlyweds were "too young," the authorities refused to register the marriage. Qiu's wife bore four children, the first two at the family's home in Fujian, the third in Tungto Town, and the fourth in Fuzhou. When Qiu's wife became pregnant with their third child, she and Qiu, fearing forced abortion and sterilization, fled to Tungto and hid there with his wife's family until the third child was born. Qiu found work in a garment factory, but was fired after his wife refused to abort the third child. Confronted by Qiu as to the reason for the dismissal, the head of the garment factory confirmed that Qiu's spouse's failure to report for an abortion was, in fact, the cause. He further stated that she would have to be sterilized for Qiu to reclaim his position.

Qiu then moved to Fuzhou, sixty kilometers from his home village, where he was able to secure manual employment. There, in 1985, his wife gave birth to their fourth child. After the birth, Qiu and his wife returned home, where his wife was arrested, "taken away by force," sterilized against her will, and then fined for violating birth control policies. Her captors consisted of "birth control officers," "committee members," and "brigade cadres." Qiu explained that the "birth control team" came through his village periodically, usually in October, demanding sterilizations. Up until 1985, Qiu and his wife had managed to evade the birth control team by going into hiding during the roundups. But they paid a price for their evasions. Qiu testified that the team would knock at his door and, finding no one home, would force their way in and "smash[] everything they can find into pieces." (It is not clear from Qiu's testimony whether this happened once or repeatedly.)

Qiu purported to corroborate his version of events with a sterilization certificate in his wife's name, dated October 15, 1985, and a receipt, dated October 30, 1985, for a 1000-yuan fine paid for violating China's "one-child limit." Additional support came from the State Department report, which indicated that China enforced its family size rules in Qiu's province with annual or biannual passes through the villages, much as Qiu had testified.

Two years after his wife's sterilization, Qiu made up his mind to leave China. A final incident prompted his departure: after a fire had swept through his neighborhood, destroying his and many other homes, Chinese officials gave most of the residents supplies sufficient to rebuild four-story structures, but Qiu received enough only for a two-story home, and he was relegated to a singularly poor building site. This mistreatment he attributed to his "family background." It is not clear what Qiu meant by "family background." At one point, he suggested that he was deprived of building materials because his father had cracked a joke about Mao back in 1966, for which his father had lost his position and had been forced to attend "study class." But Qiu also testified that in denying him building materials, local officials explained that they had to "take care of the lowest poor and lower peasants first." (Qiu characterized his family background as "rich peasant.")

Qiu finished presenting his case by explaining that were he sent back to China, he could be jailed or fined for leaving the country without the government's permission.

The INS attorney began his examination of Qiu by posing a number of questions about why Qiu chose to leave China and how he obtained passage to the United States. The attorney then had Qiu state for the record the amount of the fine paid for birth control violations. Qiu replied, "One thousand yuan, y-u-a-n." (The translation of the fine receipt submitted into evidence was denominated in dollars rather than yuan.) Except for clarifying the amount of the fine, the INS attorney did not try to elicit details about Qiu's experiences under China's birth control policies. The attorney did ask for proof of Qiu's marriage; there followed a partially off-the-record exchange about the household registry that Qiu had submitted into evidence, which seems to have allayed the attorney's doubts. That was the extent of INS questioning.

The IJ then posed a question of his own. He observed that the 1993 household registry showed only three children and asked Qiu to explain the discrepancy. Qiu said that "last year" (i.e., in 1993) he had listed his eldest child in his brother's household registry, apparently hoping that this would lead public authorities to believe him to have only three children. Even so, Qiu's family suffered for its size. Thus, prompted by his attorney, Qiu indicated that Chinese officials had refused to place a seal on the youngest child's entry in the 1993 household registry, because Qiu had "too many" children. This prevented Qiu's youngest child from attending school and deprived that child of food rations. The IJ then asked a few questions about Qiu's sister, who was listed in the registry but without a seal; about Qiu's father's treatment as a political prisoner; and about local officials' explanation for Qiu's allotment of building materials following the 1987 fire. Like the INS attorney, the Immigration Judge did not try to elicit details about the application of China's population laws to Qiu and his family.

C. The Immigration Judge's Decision

After concluding his questioning and confirming that the attorneys for Qiu and the INS had nothing further to add, the IJ recited his ruling from the bench. He explained that Qiu had failed to show either past persecution or a "reasonable fear" of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, and therefore was not eligible for asylum. (A fortiori, Qiu could not show the higher "clear probability" of impending persecution requisite to a withholding of deportation.) The IJ considered and rejected three possible bases for asylum: the events of 1966 (relating to Qiu's father's troubles), Qiu's fear of punishment for having left China illegally, and the misfortunes suffered by Qiu and his wife due to China's population-control policies.

First, the judge held that Qiu could not show a "proper nexus" between his father's quip about Mao and any subsequent adversities....

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