Shou Yung Guo v. Gonzales, Docket No. 02-4275-ag(L).

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtB. Parker, Jr.
Citation463 F.3d 109
PartiesSHOU YUNG GUO, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.
Docket NumberDocket No. 04-0732-ag(CON).,Docket No. 02-4275-ag(L).
Decision Date06 September 2006

Page 109

463 F.3d 109
SHOU YUNG GUO, Petitioner,
v.
Alberto R. GONZALES,* Attorney General of the United States, Respondent.
Docket No. 02-4275-ag(L).
Docket No. 04-0732-ag(CON).
United States Court of Appeals, Second Circuit.
Submitted: August 23, 2005.
Decided: September 6, 2006.

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Gang Zhou, New York, NY, for Petitioner.

Jonathan H. Koenig, Assistant United States Attorney for the Eastern District of Wisconsin, for Steven M. Biskupic, United States Attorney, Milwaukee, WI, for Respondent.

Before MESKILL, SACK, and B.D. PARKER, Circuit Judges.

B.D. PARKER, JR., Circuit Judge.


Petitioner Shou Yung Guo, a Chinese national from Changle City in the Fujian Province, appeals two decisions of the Board of Immigration Appeals, each dismissing motions to reopen her asylum application. The application was based on China's coercive one-child birth control policies, and the appeals have been consolidated. Her first motion, filed in June 1999, sought permission to apply for relief under the Convention Against Torture ("CAT"). The BIA denied it, concluding that the Immigration Judge's adverse credibility finding on her underlying application, where she had raised the same argument, meant that she could not show, as required under the CAT, that, more likely than not, she would face torture if she were returned to China. In the second motion, filed in September 2003, Guo sought asylum based on changed country conditions in her home province surrounding enforcement of the one-child policy. The BIA denied it on the ground that the documentary evidence she tendered failed to establish changed circumstances. For the reasons set forth below, we conclude that the BIA did not abuse its discretion in denying the first motion. Because we conclude that the BIA did not give appropriate consideration to Guo's evidence, we remand the second for further proceedings.

Background

Guo entered the United States in October 1992, and in February 1993 applied for asylum and withholding of removal on the basis that she had violated China's one-child policy and would be subject to forcible sterilization if she were required to return. In January 1996, the Immigration Judge, William F. Jankun, denied Guo's application, mainly on the ground that he did not believe her testimony.

This finding was based on a number of significant inconsistencies between her airport interview, her asylum application, and her hearing testimony. For example, in her airport interview, Guo stated that she had two children. At her hearing, she testified that she had two children prior to leaving China, one born to her in China in 1988 and a second one that she adopted in 1991 after finding it on her doorstep, and a third born in the United States in 1995. She failed to mention the adopted child in her asylum application. In her airport interview, Guo stated that she and her husband were ordered to undergo sterilization. But Guo failed to mention this fact in either her hearing testimony or in her asylum application. Instead, in both instances,

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Guo stated that she was given the choice of undergoing sterilization or having an IUD inserted and that she had one inserted in 1988. At her hearing, she produced medical evidence that an IUD was inserted, in 1990 rather than in 1988. To explain this apparent discrepancy, Guo testified that the 1988 IUD was removed approximately three months after implantation and that a second IUD was inserted in March 1990. She also testified that she was forced to have an abortion at the time the second IUD was removed. However, her asylum application and airport interview did not mention the forced abortion, the removal of the first IUD, or the insertion of the second.

Based on these and other inconsistencies, the IJ denied her application. The IJ found Guo's explanation for why she did not list the second child on her asylum application implausible, concluding that her account of the adopted child was fabricated to make her airport interview consistent with her testimony at the asylum hearing. The IJ found that Guo only had two children: one born to her in China, and one born in the United States. He concluded that Guo had failed to establish either past persecution or a well-founded fear of future persecution through sterilization if she were removed to China. He believed that the birth of a second child in the United States did not appear to offend Chinese family planning policies. Guo herself testified that she believed that she could have two children without violating the policy. The IJ also noted that, having failed to meet the standard for asylum, she also failed to meet the higher standard of establishing a clear probability of persecution required for withholding of deportation.1 Guo appealed to the BIA, which affirmed the IJ's decision, finding that the numerous inconsistencies identified by the IJ supported the adverse credibility finding. Guo did not petition our Court for review of this initial BIA ruling.

First Motion to Reopen

In June 1999, Guo filed her first motion to reopen so that she could apply for CAT relief. To obtain CAT relief, she had to show that if removed, she more likely than not would suffer torture in the future. Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 133 (2d Cir.2003). Guo argued that she had three children and that her past experiences with the family planning authorities convinced her that she would be forcibly sterilized if she were required to return to China.

The BIA rejected Guo's argument that she was entitled to relief under the CAT because she would suffer forced sterilization. The BIA noted that her motion to reopen failed to explain her inconsistencies and also failed to challenge the BIA's decision affirming the IJ's adverse credibility finding. The BIA explained that because her same argument about forced sterilization had previously been considered and rejected as incredible by the IJ and the BIA, she had failed to establish that she had suffered past persecution or had a well-founded fear of future persecution, and therefore, she could not demonstrate that she was entitled to CAT relief.

Second Motion to Reopen

In September 2003, Guo filed a second motion to reopen, this time seeking relief on the basis of changed country conditions. Guo presented evidence that her counsel received from another client dated several years after her 1996 asylum hearing. The documents in question were 2003 decisions from the Changle City Family-Planning Administration and the

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55 practice notes
  • Xiao Xing Ni v. Gonzales, Docket No. 04-0042-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 12, 2007
    ...The Tian Ming Lin panel: [i] took judicial notice of certain documents that were in the record of another case, Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006); [ii] relied on Guo for the proposition that the documents, "if authentic," "`apparently reflect[ ] governmental policy in th......
  • Shao v. Mukasey, Docket No. 07-2689-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 10, 2008
    ...which resulted in remands, in two cases by court order, see Jian Hui Shao v. BIA, 465 F.3d 497 (2d Cir.2006); Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), and in the case of Ji Wen Shi by stipulation of the parties. Preliminary to discussing the challenged precedential decisions p......
  • Wei v. Mukasey, No. 07-9537.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 7, 2008
    ...would be sterilized by the government. As legal support for her motion, Mrs. Wei submitted a copy of the opinion in Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006). That opinion set aside the BIA's denial of an alien's motion to reopen, and remanded to the BIA to consider whether documents pre......
  • Li Fang Lin v. Mukasey, No. 06-1456.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 20, 2008
    ...operation after having two children; manual abortion if pregnant out-of-planning." (J.A. at 181.); see also Shou Yung Guo v. Gonzales, 463 F.3d 109, 113 (2d Cir. 2006) (noting that a 1999 document entitled "Q & A for Changle City Family-Planning Information Handbook" states that "[a]n IUD i......
  • Request a trial to view additional results
55 cases
  • Xiao Xing Ni v. Gonzales, Docket No. 04-0042-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 12, 2007
    ...The Tian Ming Lin panel: [i] took judicial notice of certain documents that were in the record of another case, Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006); [ii] relied on Guo for the proposition that the documents, "if authentic," "`apparently reflect[ ] governmental policy in th......
  • Shao v. Mukasey, Docket No. 07-2689-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 10, 2008
    ...which resulted in remands, in two cases by court order, see Jian Hui Shao v. BIA, 465 F.3d 497 (2d Cir.2006); Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), and in the case of Ji Wen Shi by stipulation of the parties. Preliminary to discussing the challenged precedential decisions p......
  • Wei v. Mukasey, No. 07-9537.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 7, 2008
    ...would be sterilized by the government. As legal support for her motion, Mrs. Wei submitted a copy of the opinion in Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006). That opinion set aside the BIA's denial of an alien's motion to reopen, and remanded to the BIA to consider whether documents pre......
  • Li Fang Lin v. Mukasey, No. 06-1456.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 20, 2008
    ...operation after having two children; manual abortion if pregnant out-of-planning." (J.A. at 181.); see also Shou Yung Guo v. Gonzales, 463 F.3d 109, 113 (2d Cir. 2006) (noting that a 1999 document entitled "Q & A for Changle City Family-Planning Information Handbook" states that "[a]n IUD i......
  • Request a trial to view additional results

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