Zhang v. U.S. I.N.S., No. 02-4252.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Raggi
• Citation: 386 F.3d 66
• Parties: Zhou Yun ZHANG, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Docket Number: No. 02-4252.
• Decision Date: 05 October 2004

386 F.3d 66 Zhou Yun ZHANG, Petitioner,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 02-4252. United States Court of Appeals, Second Circuit. Argued: May 20, 2003. Decided: October 5, 2004.

Hanbin (Henry) Wang, Law Offices of Hanbin (Henry) Wang, New York, NY, for Petitioner.

Kathy S. Marks, Assistant United States Attorney (Sue Chen, Special Assistant United States Attorney; Gideon A. Schor, Assistant United States Attorney, on the

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brief), for James B. Comey, United States Attorney, Southern District of New York, New York, NY, for Respondent.

Before: KEARSE, STRAUB, and RAGGI, Circuit Judges.

Judge STRAUB dissents in a separate opinion.

RAGGI, Circuit Judge.

Zhou Yun Zhang, a citizen of the People's Republic of China, petitions for review of the June 3, 2002 decision of the Board of Immigration Appeals ("BIA" or "Board") rejecting his claims for asylum and withholding of deportation.¹ In dismissing Zhang's appeal, the BIA agreed with the Immigration Judge ("IJ") who presided over the underlying exclusion hearing that Zhang had "not presented consistent, detailed or credible testimony" to support his claim of persecution based on his opposition to China's family planning policies. In re Zhang, unpublished decision at 2 (B.I.A. June 3, 2002) (hereinafter "BIA Decision"). The BIA concluded that Zhang's testimony, of "limited credibility and lacking in detail, combined with the few [corroborating] documents" offered in evidence, were insufficient to establish eligibility for relief. Id. Zhang submits that neither the adverse credibility finding nor the sufficiency conclusion is supported by substantial evidence. We disagree and, accordingly, deny the petition for review.

I. Factual Background

A. Zhang's Illegal Entry

On January 21, 1993, Zhou Yun Zhang attempted to enter the United States at John F. Kennedy International Airport.² Lacking proper documentation, Zhang was denied admission and charged with excludability. See 8 U.S.C. § 1182(a)(6), (7)

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(Supp. V 1993). An exclusion hearing before an IJ was scheduled for May 11, 1993.

B. Zhang's Initial Application for Asylum

On April 15, 1993, approximately one month before his scheduled hearing, Zhang filed a pro se application for asylum and withholding of deportation, asserting that he feared forcible sterilization by the Chinese government for his past violation of China's family planning policies. He stated that he and his wife had two children: a daughter born in 1988, and a son born in 1992. After the birth of the Zhangs' son, family planning officials fined the couple for exceeding China's one-child-per-family limit and gave them a deadline to submit to sterilization. Zhang stated that he fled China to avoid forcible sterilization.

Despite filing this application for relief from exclusion, Zhang failed to appear for the scheduled May 11, 1993 hearing, prompting the Immigration and Naturalization Service ("INS") to close his asylum/withholding application without prejudice. Zhang's whereabouts were apparently unknown to the INS for approximately five years when, on April 8, 1998, Zhang, through counsel, requested to have his application reopened. The INS agreed and scheduled his exclusion hearing for July 1, 1998.

C. Zhang's 1998 Amended Asylum Application

In anticipation of his July 1998 hearing, Zhang filed an amendment to his initial asylum/withholding application. In that June 24, 1998 amendment, Zhang reiterated that he fled China for fear of forcible sterilization and added that, since his departure from China, government officials had forcibly sterilized his wife.³ Providing further personal background to these events, Zhang stated that he and his wife were married in a traditional ceremony in 1988, but because they were both in their early twenties, i.e., below the legal age to marry, they could not obtain a marriage certificate. As a result, when their daughter was born the following year, local officials required the couple to pay a monetary fine for not having a marriage certificate and for conceiving a child without permission. When Zhang's wife again became pregnant in 1992, the couple feared she might be required to submit to an abortion; accordingly, they arranged for her to go into hiding with a relative who lived in another part of the country. After Zhang's son was born on December 13, 1992, family planning officials directed that his wife be sterilized. Because she was too weak from childbirth to undergo the procedure, the officials ordered that Zhang be sterilized instead. Zhang stated that he was frightened by the prospect of involuntary sterilization and, therefore, fled to the United States, arriving on January 21, 1993. He further asserted that when Chinese officials discovered Zhang's departure, they imposed a monetary fine on his wife and then forcibly sterilized her on June 5, 1993.

D. The Hearing Before the Immigration Judge

1. Zhang's Testimony and Evidence

On July 1, 1998, a hearing was held before an IJ on the excludability charges

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against Zhang as well as on his application for political asylum and withholding of deportation. Because Zhang, through counsel, conceded excludability at the outset of the hearing, the focus of the proceeding was on Zhang's eligibility for relief from exclusion.

As the sole hearing witness, Zhang, testifying through an interpreter in the Foo Chow dialect, expanded on the events outlined in his 1993 asylum application and the 1998 amendment to that application. He testified that he fled China shortly after the birth of his second child because the government had notified him to report for sterilization. Zhang stated that sometime after his arrival in the United States, he spoke by telephone with his wife in China, who reported that she had been forcibly sterilized. Although Zhang, on occasion, testified quite clearly that the date of this procedure was June 5, 1993, other parts of his testimony suggested that the alleged sterilization had occurred earlier.

Notably, in first recounting his telephone conversation with his wife, Zhang reported her telling him that "not long after the — giving birth of the baby" (the birth having taken place on December 13, 1992) five or six people, some of whom were government officials, had come to the house and told Zhang's wife she would have to be sterilized. Hearing Tr. at 16. When his wife asked the officials for more time because she was still weak from childbirth, they purportedly refused her request and insisted that the procedure take place that day. The IJ asked a series of questions to clarify the date of this conversation between Zhang and his wife as it pertained to when the alleged sterilization had occurred. Zhang replied that the conversation had occurred approximately one month after his arrival in the United States. When the IJ asked if this meant the conversation had taken place in February 1993, Zhang initially replied affirmatively. Later, however, he placed the conversation sometime in July 1993, consistent with the June 5, 1993 date that was reflected on a sterilization certificate offered in evidence.

In addition to this sterilization certificate, Zhang offered into evidence documents that he testified were his notarial birth certificate, his marriage certificate, a copy of his family's household register, issued on October 27, 1997, and a receipt for the cash fine paid by his wife after Zhang's departure from China, dated May 12, 1993. Zhang testified that he had asked his wife to send these documents from China and that he had received them on June 20, 1998, shortly before the hearing. Zhang also submitted a studio photograph of a woman and two children, whom he identified as his wife and children. He testified that the photograph had been sent to him sometime in 1996.

2. The Immigration Judge's Decision

At the conclusion of the hearing, the IJ rendered a detailed oral decision denying Zhang's asylum and withholding application and ordering his exclusion and deportation. In so ruling, the IJ identified Zhang's credibility as the central factor in evaluating his persecution claim. The IJ observed that in some cases, the only available evidence to support an applicant's subjective fear of persecution may be his own testimony, and he correctly acknowledged that such evidence can suffice to carry an applicant's burden "where the testimony is believable, consistent and sufficiently detailed to provide a plausible and coherent account of the basis for the applicant's fears." In re Zhang, unpublished decision at 4 (Immig.Ct. July 1, 1998) (hereinafter "IJ Decision"); see Diallo v.

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INS, 232 F.3d 279, 285 (2d Cir.2000). In this case, however, the IJ found that Zhang's account was not believable largely because of confusing, inconsistent, and conflicting responses regarding the circumstances of his wife's alleged involuntary sterilization. After carefully reviewing the troubling inconsistencies, the IJ concluded, "[i]t is the opinion of the Court that this seriously undermines the applicant's truthfulness and credibility before the Court with regard to the forced sterilization of his spouse." IJ Decision at 8.

The court further noted that it gave little weight to Zhang's supporting documentary evidence because it either conflicted with aspects of his own testimony, as in the case of the sterilization certificate, or was not contemporaneous. The IJ suggested that copies of the children's birth certificates or photographs showing Zhang with his family in China would have been more probative of his claimed family relationship than a family register prepared or photograph taken after his departure. The IJ also noted that Zhang's documentary corroboration did not include affidavits from persons with direct knowledge of the events and circumstances giving rise to his claim, such as his wife, certainly "the best person to offer information" regarding the alleged...