Wang v. Attorney General of U.S.
| Decision Date | 21 September 2005 |
| Docket Number | No. 04-2866.,04-2866. |
| Citation | 423 F.3d 260 |
| Parties | Qun WANG, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES. |
| Court | U.S. Court of Appeals — Third Circuit |
Dehai Zhang, Flushing, NY, for Petitioner.
Jonathan Porter, Emily Radford, Allen Hausman, Blair T. O'Connor, United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, for Respondent.
Before: FUENTES, VAN ANTWERPEN, and BECKER, Circuit Judges.
We have stressed previously that "[a]s judicial officers, [immigration judges] have a responsibility to function as neutral and impartial arbiters and must assiduously refrain from becoming advocates for either party." Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir.2003). Here, we find the immigration judge (IJ) failed this basic requirement.
Petitioner Qun Wang alleges that his wife was forcibly sterilized after giving birth to a second child. The IJ found him incredible and denied him relief from deportation. The Board of Immigration Appeals (BIA) affirmed. Because of the manner in which the IJ conducted Wang's hearing, and the deficiencies in her opinion, we do not believe that the existing record can sustain an adverse credibility finding. Accordingly, we will grant the petition.
Wang is a 34-year old native and citizen of the People's Republic of China. He alleges that an intrauterine device (IUD) was forcibly inserted into his wife by government officials after she gave birth to their first daughter in November 1998. Wang claims that because the daughter was born with a disability, and because he and his wife wanted a son, they asked the local authorities for permission to have a second child. Their request was denied pursuant to Fujian Province Family Planning Regulations, under which those with an agricultural registration, including Wang's wife, are not permitted to have more than one child. AR 253-55. Wang alleges that his wife had the IUD removed by a private doctor and she became pregnant again in December 1999. Wang's wife hid at her parents' house until she gave birth to a second daughter. Because she did not wish to burden her ill and aging parents, and because she did not desire to remain in hiding forever, Wang's wife returned home one month after the birth of her second daughter, in October 2000. Shortly thereafter, Wang alleges that a local birth control cadre came into their home and dragged his wife to a family planning center where she was involuntarily sterilized. Wang submitted into evidence the 1989 Fujian Province Family Planning Regulations that prescribe such measures. The officials also allegedly fined Wang 12,000 RMB (or "Renminbi"), and upon his refusal to pay, began deducting a penalty from Wang's parents' retirement pension.
Wang claims that, in the period between his wife's forced sterilization and his departure for the United States, he unsuccessfully attempted to procure a visa to the United States using false documents. He also allegedly wrote a letter to the United Nations Human Rights Commission describing the above incidents. He delivered that letter to the United States Consulate in Guangzhou but denied to consular officials that it related to himself out of fear that its contents might be communicated to Chinese authorities. Wang ultimately left China for the United States through a smuggler whom he paid approximately $60,000 in borrowed funds.
Wang arrived in the United States in January 2002 without valid entry documents. The former Immigration and Naturalization Service (INS)1 commenced removal proceedings against Wang in February 2002, charging him with removability under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Wang conceded removability but applied for asylum, withholding of removal, and protection under the Convention against Torture (CAT). In particular, Wang claimed that he had been subject to past persecution on account of political opinion. See 8 U.S.C. § 1101(a)(42) (); Matter of C-Y-Z, 21 I. & N. Dec. 915, 917 (BIA 1997) (en banc) (). A hearing was held before Immigration Judge Annie S. Garcy in December 2002.
At his hearing before Judge Garcy, Wang was represented by Yee Ling Poon. Xiomara Davis-Gumbs appeared on behalf of the INS. The IJ's questioning of Wang during his asylum hearing preshadowed her hostile attitude towards him and his claims.
After counsel and the IJ took Wang through a recital of his basic factual allegations, they reached his claim that his parents' pension was being withheld as a penalty for his violation of birth control policy. The IJ questioned Wang as to why he had not paid the fine he was issued as a result of that violation, in order to restore his parents' pension:
Q. Well, why don't you just pay the fine and solve your parents [sic] problem. I don't understand why you haven't paid it.
A. I do not have the money to pay.
Q. Oh come on. You're here in the United States of America after having paid a smuggler to get here. And a lawyer's working on your case and you're dressed in a suit and tie and you want me to believe that you can't pay $1,500.
A. The money I pay to the snake head [smuggler] I have to borrow money in order to pay the snake head.
Q. So you choose to pay the smuggler instead of paying the fine and protecting your parents [sic] pension. What sympathy do you want from me about that?
A. Not that I do not want to protect my parents. If I will stay in China no one will lend me money to pay the fine.
Q. You're not in China, you're in the United States and you're making money when you work.
A. Yes, I do.
Q. So why do you expect sympathy from me that you choose to pay money to a smuggler instead of protecting your parents [sic] pension? You must be out of your mind if you think I have sympathy for that.
A. First of all, I believe when government impose fine against my family it's outrageous. Secondly, I owe a lot of money to different sources and I have to pay them back. They force me to. Certainly I do regularly send money back to support my parents.
Q. All these sources that you're describing are a bunch of illegal people who conspired with you for you to be smuggled into the United States. Are those the sources that you're describing to me?
A. Yes, my trip was arranged by snake head.
Q. Well understand clearly, I have no sympathy with your problem about that.
When Counsel Poon attempted to question Wang further about the pension, the IJ instructed her to "Get off the pension thing," but she then persisted in pursuing the very theme she told counsel to avoid. A.R. 70. Her exchange with Poon went as follows:
Q. It's ridiculous. Go away from this issue and move on because it's just insane.
A. I am not trying to stick on it. I'm only trying because I was asked for him to explain why he edit [his asylum claim] now.
Q. I don't even know why he put it in. To me it just makes me more convinced that your client is willing to do anything, even to the detriment of his parents, to take care of himself. You and I both know, there is nothing that happened in this case, nothing in the sworn statement that's even going to begin to explain why he chose to come here at the moment that he did, okay.
A. I will ask him.
Q. And you can ask him and I know what he's going to say. He finally had the money together or whatever he needed to pay the smugglers because there's nothing here at all and maybe we'll learn something suddenly today. That there's nothing here about the timing and there's nothing to convince me that he shouldn't have gone ahead and paid that fine first before he came here.
A. Because he had no money when he was in China.
Q. I don't know about that.
A. That's what he said.
Q. Well, that's what, he can say anything he wants.
When Poon later objected that the government fine for having a second child should not be linked to the engagement of a smuggler to leave China, Judge Garcy responded:
Well, it sure does. He's complaining about how his parents [sic] pension is being taken away because the fine isn't paid, and I'm saying, pay the stupid fine and then complain about it later because if his claim is oh, boo who, you know, this horrible fine is being imposed upon me and I'm entitled to asylum, there's absolutely no reason why the claim can't be made even after the fine gets paid.
Ultimately, counsel was able to move on to more pertinent issues, such as why Wang's wife did not accompany him to the United States, or travel here instead of him, why he left China when he did, why he would not want to return to China, his dealings with the American Consulate General Office, his employment in China, his understanding of the prevailing birth control regulations and his various encounters with the birth control authorities, his wife's current situation in China and her reasons for returning home after the birth of the second child. In connection with the last issue, the IJ asked Wang:
Q. Why couldn't she have stayed longer than a year and helped take care of that sick relative and everything like that?
A. Because while my wife was there my handicapped child was there as well.
Q. Well, wherever your wife goes the child with the disability goes, right?
A. Yes, yes.
Q. And let's talk about her. Have you ever had medical records about your darling first child Ming Wang brought to the United States of America? Yes or no. I want a short answer, yes or no. Do you have her medical records here, yes or no?
A. Only photos.
Q. Ok...
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