Zheng v. Ashcroft

• Decision Date: 02 September 2004
• Docket Number: No. 03-70087.,03-70087.
• Parties: Xiao Lan ZHENG, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

397 F.3d 1139

Xiao Lan ZHENG, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-70087.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2004.

Filed September 2, 2004.

Amended February 15, 2005.

COPYRIGHT MATERIAL OMITTED

David Z. Su, El Monte, CA, for the petitioner.

Robbin K. Blaya, United States Department of Justice, Office of Immigration Litigation-Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-169-033.

Before: T.G. NELSON, TASHIMA and FISHER, Circuit Judges.

FISHER, Circuit Judge.

Xiao Lan Zheng, a citizen of the People's Republic of China, petitions for review of the denial of his applications for asylum and withholding of removal. He claims that local Chinese officials forced his wife, Xiu Qin Wen, to abort their first child because they had not reached the legal age for marriage and were not authorized to have a child. Furthermore, he claims that the officials fined the couple for violating family planning polices and instructed one of them to report for sterilization after Wen's second pregnancy. The Immigration Judge ("IJ") found that Zheng was not credible, and the Board of Immigration Appeals ("BIA") summarily affirmed. We grant the petition for review because substantial evidence does not support the IJ's adverse credibility finding. We conclude, therefore, that Zheng is automatically eligible for asylum, and remand to the BIA to exercise its discretion whether to grant Zheng asylum and to determine in the first instance whether Zheng is eligible for withholding of removal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Zheng testified before the IJ to the following events. He was born in the town of Lunchen in Fuqing city, which is located in the southeastern province of Fujian. On May 1, 1992 when Zheng was 21 years old, he married Wen who was 19 at the time. They were each respectively one year shy of the legal age for marriage. They had a small, traditional Chinese wedding ceremony but did not apply for a marriage certificate because they were underage. When Wen was five months pregnant, birth control officials forcibly took her from Zheng's family home in Lunchen on October 7, 1992 to have an abortion. Zheng was not home at the time and was working in a different town within Fuqing City. He heard about the incident from his wife's brother the next morning and went home immediately. By the time he arrived home in the afternoon, Wen had already returned from the hospital. She told him that the officials had come to their house late in the evening, taken her to a government building and held her there along with other pregnant women until they took her to the hospital for the abortion the next morning.

Three days later, a town official came to their house and told Zheng that they had to pay a fine of 20,000 RMB¹ for an early marriage and unauthorized pregnancy. They did not pay the fine because of their limited income and because they did not believe they should have to pay the fine after Wen already had been forced to undergo the abortion. Zheng and Wen collectively earned 6,000 RMB annually, with Zheng working as a painter and a bulldozer operator and Wen sewing in a factory. In April 1994, after they had reached the legal age for marriage, they went to the town government office to apply for a marriage certificate but were denied because they had not yet paid the 20,000 RMB fine.

Around October of that year, they discovered that Wen was pregnant again. Because they were afraid that the officials would find out that she was pregnant, they went into hiding in Wen's uncle's house in the town of Funlu. In March 1995, they moved out of her uncle's house but did not return to Zheng's home in Lunchen, instead renting a room in Funlu. Their daughter, Yun Zheng, was born on August 15, 1995. In October, after birth control officials learned of the birth of their daughter, an official paid a visit to Zheng's family home in Lunchen and told Zheng's parents to ask Zheng or Wen to go to the government office to be sterilized. They were assessed a second fine of 20,000 RMB because they did not have a marriage certificate or authorization for the birth of their daughter.

In April 1999, Zheng left China for the United States by boat, and a month later, the American Coast Guard intercepted and detained him in Guam. The Immigration and Naturalization Service initiated removal proceedings against him, and he applied for asylum, withholding of removal under INA § 241(b)(3) and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"), opened for signature Feb. 4, 1985, art. 3, S. Treaty Doc. No. 100-20 at 20 (1998).

In addition to testifying at his hearing to the events above, Zheng offered into evidence his daughter's birth report, his own notarized birth certificate and a letter from Wen describing what happened the evening she was taken away. Zheng testified that Wen, who was still in China, took the birth reports to the town government office some time in 2000 to get them authenticated, but the office refused to certify them. Nonetheless, the IJ admitted the documents into evidence. The government also offered into evidence the State Department's 1999 Country Reports on Human Rights Practices (the "Country Report") and its 1998 Profile of Asylum Claims and Country Conditions for China (the "Country Profile").

The IJ found that Zheng was not credible because (1) Zheng's testimony that the couple was forced to abort their first child was inconsistent with the Country Report and Profile, which stated that families are permitted to have one child and maybe two if the first is a female; (2) Zheng's testimony about the amount of the fine for their early marriage and Wen's unauthorized pregnancy was inconsistent with the amount described in the Country Profile; (3) Zheng's testimony was not detailed; (4) his testimony was inconsistent with Wen's letter about the time when the birth control officials took Wen away for the abortion; (5) it was unlikely that Wen would go to the local authorities to get Zheng's birth certificate and Yun's birth report certified and yet be afraid to go to other Chinese officials in order to seek further certification; and (6) it seemed unlikely that both Zheng and Wen would be subjected to sterilization. Accordingly, the IJ denied Zheng's application for asylum.

The IJ stated that because Zheng had "failed to satisfy his burden regarding asylum," he would "not reach the issue of whether or not [Zheng] merits a grant of withholding under [INA] Section 241(b)(3)." The IJ, however, denied Zheng's request for withholding of removal in his final order.² The IJ also found that Zheng had failed to satisfy his burden of proof for protection under the Convention Against Torture. The BIA affirmed the IJ's decision without opinion.

II. STANDARD OF REVIEW

Given the BIA's summary affirmance, we review the IJ's decision as if it were the BIA's decision. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1063 n. 1 (9th Cir.2003). We review the IJ's adverse credibility finding under the substantial evidence standard. Chen v. Ashcroft, 362 F.3d 611, 617 (9th Cir.2004). To determine whether substantial evidence supports the IJ's finding, we "evaluate each ground cited by the [IJ] for [his] finding." Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir.2003).

III. CREDIBILITY

A. Inconsistencies with the Country Report and Profile

The IJ may consider the State Department's reports in evaluating a petitioner's credibility. See Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir.1999). The IJ may use a country report as "supplemental" evidence to discredit "a generalized statement" made by the petitioner but "not to discredit specific testimony regarding his individual experience." Chebchoub v. INS, 257 F.3d 1038, 1043-44 (9th Cir.2001) (upholding the BIA's reliance on the country report's statement that there were no known instances of enforced exile in Morocco and that the Moroccan government offered self-imposed exiles amnesty, to refute the petitioner's statement that the government commonly forced political dissidents to leave Morocco and to sign a document promising never to return). The IJ, however, may not discredit a petitioner's testimony based on a statement in a State Department report that is itself based on speculation or conjecture. See Shah v. INS, 220 F.3d 1062, 1069 (9th Cir.2000) (stating that the State Department's assertion that "[an Indian political party's] many electoral successes belie the assertion that it is not possible for a [member of that political party] to live peaceably in India" amounted to "nothing more than that office's speculation about the effect [that political party's] electoral gains will have on existing political persecution"). Moreover, as a predicate, the petitioner's testimony must be inconsistent with facts contained in the country report or profile before the IJ may discredit the petitioner's testimony. We conclude that there are no inconsistencies here.

1. Forced abortion of first child

The IJ found that the Country Report and Profile were inconsistent with Zheng's testimony that Wen was forced to abort their first child. Specifically, the IJ stated,

The Country Reports and the Profile are devoid of any reports regarding a couple required to undergo an abortion when they had no children at all. In fact, the Country Reports seem inconsistent with [Zheng's] rendition of the facts ... in that the first child is allowed, and it is only after one child has been born and a second child is anticipated that an abortion might become probable. In fact, since [Zheng's] first child was a daughter it seems further unlikely that he and his wife would have been required to undergo an abortion since the policy seems to be that they would...