Xiao Kui Lin v. Mukasey

• Decision Date: 22 January 2009
• Docket Number: No. 05-6035-ag.,05-6035-ag.
• Citation: 553 F.3d 217
• Parties: XIAO KUI LIN, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, The United States Department of Justice, Michael Chertoff, Secretary of The Department of Homeland Security, and The Department of Homeland Security, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

553 F.3d 217

XIAO KUI LIN, Petitioner, v. Michael B. MUKASEY,¹ Attorney General of the United States, The United States Department of Justice, Michael Chertoff, Secretary of The Department of Homeland Security, and The Department of Homeland Security, Respondents.

No. 05-6035-ag.

United States Court of Appeals, Second Circuit.

Submitted: January 3, 2008.

Decided: January 22, 2009.

Last Supplemental Brief Filed: March 21, 2008.

Douglas B. Payne, Esq., New York, NY, for Petitioner.

Larry Ludka, Assistant United States Attorney, for Donald J. DeGabrielle, JR., United States Attorney for the Southern District of Texas, Corpus Christi, TX, for Respondents.

Before SOTOMAYOR and LIVINGSTON, Circuit Judges, and CARMAN, Judge.²

LIVINGSTON, Circuit Judge:

Petitioner Xiao Kui Lin, a citizen of China, seeks review of the October 17, 2005 decision of the Board of Immigration Appeals ("BIA") adopting and affirming the May 26, 2004 decision of Immigration Judge ("IJ") Robert Weisel denying Lin's applications for asylum and withholding of removal. In re Xiao Kui Lin, No. A 72 473 382 (B.I.A. Oct. 17, 2005), aff'g No. A 72 473 382 (Immig. Ct. N.Y. City May 26, 2004). Because we find errors in the BIA's order and cannot predict with confidence that the BIA would reach the same result on remand absent these errors, we are compelled to grant the petition, vacate the October 17, 2005 order, and remand the matter to the BIA.

Background

Lin hails from the city of Fouzhou in the Fujian Province of China. He entered the United States unlawfully in 1992 and unsuccessfully applied for asylum based on an alleged fear that he would be persecuted for his political activism if he returned to his home country. Though he was ordered to be deported in 1994, Lin remained in the United States, and in 2002 moved for a stay of removal and to reopen asylum proceedings based on changed personal circumstances, namely his marriage and the birth of a daughter. In an amended asylum application, Lin averred that he and his wife intended to have another child, but that if they returned to China and attempted to have a second child there, the pregnancy either would be aborted forcibly, or Lin or his wife would be forced to undergo a sterilization procedure. The motions to reopen and for a stay of removal were granted, and the IJ held a hearing on Lin's amended asylum application on May 26, 2004.

Lin testified at the hearing that he was married on October 2, 2000, in New Bedford, Massachusetts, and that he now had two U.S.-born daughters, the first born on March 27, 2001, and the second on May 17, 2003, subsequent to the filing of his amended asylum application. His wife was present at the hearing with both children, but did not testify. Lin submitted his daughters' birth certificates and his Massachusetts marriage certificate indicating that he had married on September 24, 2000, and that the marriage certificate had been issued and recorded on October 2, 2000.

Lin testified that he and his wife intended to have another child, and that they hoped to have a boy to carry on the family name. He reiterated his fear, however, that he and his wife would be arrested and sterilized forcibly for having violated family planning policies if they were to return to China. Lin testified that his mother had been sterilized forcibly in China after the birth of his younger brother, that his sister-in-law had been sterilized as well, and that his sister had been fined for violating a Fujian Province family-planning policy. In an attempt to corroborate these claims, Lin offered: (1) a Birth Control Operation Certificate reflecting that his mother had been sterilized in 1979; (2) a certification from the Committee of Min An Village that his mother had violated the birth control policy of Fujian Province by having three children and that the "Village Committee took her to undergo a female sterilization procedure," App. 129; (3) affidavits from his mother and her sister-in-law stating that after Lin's mother gave birth to her third child, she was arrested and forced to undergo involuntary sterilization; (4) a receipt reflecting that his sister had paid a fine in 1998 "for missing a female examination," App. 126; and (5) the Family Planning Stipulations for Fujian Province.

The IJ denied the applications for asylum and withholding of removal on the ground that Lin had failed to establish that if he returned to China, he would be found in violation of a family planning policy and therefore sterilized forcibly. The IJ expressed doubt that Lin "will ever return to China as part of an intact family" because "[n]o testimony was offered today by [Lin] that if he returns to China, he will return with his wife ... [o]r for that matter, that his children will return with him." App. 38. The IJ went on to "question[ ] the closeness of [Lin's] relationship [with his wife], and whether they even live together," pointing to the fact that the marriage certificate and Lin's asylum application indicated that Lin was married on September 24, 2000, whereas Lin testified that he had married on October 2, 2000. App. 39.

The BIA affirmed the IJ's decision on October 17, 2005. It concluded that Lin had not established a well-founded fear of persecution "based upon the birth of his United States citizen children" because "[t]here is no national policy to sterilize Chinese citizens who have broken the population control law by virtue of having children in other countries." App. 2. The BIA stated that, in any event, "[i]t is unclear whether [Lin's] United States citizen children will actually return to China with him," and "[t]here is also insufficient documentary evidence of record to convince the Board that there is any likelihood that [Lin] will be sterilized by the Chinese authorities." Id.

Lin now petitions for review of the BIA's October 17, 2005 order.

Discussion

"Where, as here, the BIA adopts the IJ's reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA." Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.2007). We review factual findings for "substantial evidence," and will not disturb them "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.2008). We will vacate and remand for new findings, however, if the agency's reasoning or its factfinding process was sufficiently flawed. Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 335 (2d Cir.2006).

Asylum is available to an individual who establishes that he is a "refugee," 8 U.S.C. § 1158(b)(1); Xu Sheng Gao v. U.S. Attorney Gen., 500 F.3d 93, 97 (2d Cir.2007), meaning that he is unable or unwilling to return to his native country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Xu Sheng Gao, 500 F.3d at 97 (quoting 8 U.S.C. § 1101(a)(42)). A person "who has been forced to abort a pregnancy or to undergo involuntary sterilization, or ... who has a well founded fear that he or she will be forced to undergo such a procedure" qualifies as a refugee. See 8 U.S.C. § 1101(a)(42). In addition, we have observed that "[f]orced sterilization or abortion threatens [a petitioner's] life or freedom" and is a basis for withholding removal when a petitioner establishes that it is more likely than not that he or she will be subjected to such a procedure and the government cannot establish changed country conditions. Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007) (alteration in original) (quoting Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 399 (2d Cir.2005)).

The BIA gave three reasons for denying Lin's applications for asylum and withholding of removal, none of which withstands scrutiny. The finding that Lin failed to show that he would return to China with his wife and children and thus come within the ambit of a forcible sterilization policy, assuming one existed, was not supported by substantial evidence. Lin appeared at his hearing with his wife and children and testified that both he and his wife were "thinking of possibly having another child" to "continue our family name." App. 82. When asked what he believed would happen if he were forced to return to China, Lin stated that "we will be arrested [and] sterilized." Id. (emphasis added). Lin did not state specifically that he intended to take his children to China if he returned, and his wife did not testify at the hearing. But the record on which the agency based its finding that Lin would return to China alone was plainly inadequate.

In "question[ing] the closeness of [Lin's] relationship" with his wife, App. 38, the IJ relied solely on the fact that Lin testified that he was married on October 2, 2000, while his marriage certificate and asylum application indicated that the actual date of his wedding ceremony was September 24, 2000. The IJ concluded that "[n]o explanation for this anomaly exists." App. 39. But the marriage certificate shows that October 2, 2000 was the date the certificate was recorded by the New Bedford town clerk. The IJ failed to address why it would be unreasonable for Lin to believe that the date on which his marriage certificate was filed with a governmental agency was the date on which he officially became married. Hence, the IJ overlooked a plausible explanation for Lin's confusion that was apparent in the record evidence that the IJ relied upon to conclude that no such explanation existed. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir.2005) (rejecting IJ's adverse credibility finding where IJ failed to evaluate plausible explanations for inconsistencies); Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004) (noting that remand may be appropriate "where the agency's determination is based on an inaccurate perception of the record, omitting potentially significant facts")....