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

• Decision Date: 06 September 2006
• Docket Number: Docket No. 04-0732-ag(CON).,Docket No. 02-4275-ag(L).
• Citation: 463 F.3d 109
• Parties: SHOU YUNG GUO, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

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.

COPYRIGHT MATERIAL OMITTED

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 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 Fujian Province Department of Family-Planning Administration. These decisions dealt with the sanctions applicable to Chinese nationals who had given birth to a child while living abroad. The first stated that "where either parent remains a Chinese national and citizen with no permanent residence overseas, any child of such a couple . . . is deemed a Chinese national and shall not be treated as [a] foreign national or citizen for domestic administrative purposes." The decision cautioned that Chinese nationals engaging in "any reproductive behavior in violation of family-planning enforcement in China" will be sanctioned according to family-planning rules and regulations enforced at the local level, subject to exceptions for those having a permanent residence overseas or a temporary visa for at least a three year stay. The Fujian Province Department of Family-Planning Administration affirmed the Changle City opinion. Subject to the same exceptions noted above, the Fujian Province decision concluded:

[N]o exception or waiver shall be applicable to Chinese nationals and citizens who engage in reproductive behavior overseas in violation of family-planning regulations as enforced in his or her area of residence of household registration in China . . . . Such Chinese nationals and citizens shall be subject to family-planning enforcement upon resettlement in China.

Guo also submitted a document from 1999 entitled "Q & A for Changle City Family-Planning Information Handbook." ("Q & A Handbook"), indicating that the birth of a second child would result in forced sterilization. In response to the question, "What birth-control measures are to be imposed upon birth of a first child / a second child pursuant to the provincial family-planning regulations?," the answer stated, "An IUD insertion is mandatory upon birth of a first child; sterilization upon birth of a second child."

The BIA summarily denied Guo's second motion to reopen on the ground that she had not demonstrated changed circumstances. The BIA characterized the documents as "new," rather than "not [previously] available" as required by the applicable regulations and, without any evident attention to the content of the documents, merely concluded that "the applicant has failed to show any change in Chinese policy." See 8 C.F.R. § 1003.2(c)(3)(ii). This appeal followed.

Discussion

We review the BIA's denial of a motion to reopen for abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). Since the BIA has broad discretion to grant or deny motions to reopen, in reviewing such a motion, "we are precluded from passing on the merits of the underlying exclusion proceedings," including adverse credibility determinations. Paul v. Gonzales, 444 F.3d 148, 153 (2d Cir.2006) (citation and internal quotation marks omitted). Our review is instead confined to whether the denial of the motion to reopen constituted an abuse of discretion, and in that regard, we do not revisit an IJ's adverse credibility finding. Id.

The BIA concluded that since Guo did not appeal the IJ's finding that the prospect of her facing forcible sterilization was not credible, her CAT claim was fatally undermined since it rested upon the same facts found unbelievable. Guo's principal contention is that this...