Zhong v. U.S. Dept. of Justice, Docket No. 02-4882.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtCalabresi
Citation480 F.3d 104
PartiesLin ZHONG, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Gonzales,<SMALL><SUP>*</SUP></SMALL> Respondent.
Decision Date08 August 2006
Docket NumberDocket No. 02-4882.
480 F.3d 104
Lin ZHONG, Petitioner,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Gonzales,* Respondent.
Docket No. 02-4882.
United States Court of Appeals, Second Circuit.
Argued: May 24, 2005.
Decided: August 8, 2006.
Amended: January 17, 2007.

[480 F.3d 107]

Bruno Joseph Bembi, Hempstead, N.Y., for Plaintiff-Appellant (on submission).

Sara R. Robinson-Glasser, Assistant United States Attorney for the Central District of California, for Debra W. Yang, United States Attorney for the Central District of California (Leon W. Weidman, Assistant United States Attorney, on the brief), Los Angeles, Ca., for Respondent (on submission).

Before KEARSE, CALABRESI, and POOLER, Circuit Judges.

CALABRESI, Circuit Judge.


The principal issue in this case concerns whether the mandatory requirement of issue exhaustion in asylum cases is also jurisdictional. The Supreme Court, in Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 405, 163 L.Ed.2d 14 (2005) (per curiam), recently cautioned lower federal courts against conflating mandatory with jurisdictional prerequisites to review. We take the Court's caveat to heart. Such a caveat does not, of course, affect the clearly jurisdictional requirement of 8 U.S.C. § 1252(d)(1) that cases of this sort be brought to the Executive Office for Immigration Review (i.e., an IJ and the BIA) before they can be considered by courts of appeal. Nor is it enough to permit a panel of our court to reconsider past holdings that exhaustion of some asylum questions, e.g., claims for relief, is jurisdictional. It is a reason, however, for us to treat as not jurisdictional, though mandatory (and hence waiveable) the requirement of issue exhaustion, something as to which our court has spoken, though we believe not definitively held. As will be apparent, the question is determinative of the asylum case before us.1

480 F.3d 108

Petitioner Lin Zhong ("Lin"), a citizen of the People's Republic of China, seeks review of a November 8, 2002 decision of the Board of Immigration Appeals ("BIA"), which summarily affirmed an Immigration Judge's ("IJ") January 31, 2001 denial of Lin's application for asylum and withholding of removal under the Immigration and Nationality Act of 1952(INA), and for relief under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.2

Lin's removal from the United States was first ordered in 1994, following an IJ's determination that, under the then-applicable version of the INA, Lin had failed to establish that he had been persecuted or was likely to be persecuted by the Chinese government on account of his political opinion. But in 1999, Lin, who had not yet been deported,3 sought and obtained reopening of his application in order to be considered for relief under intervening changes in law—the implementation of CAT and the passage of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), which expanded the INA's definition of political persecution to include some coercive population control programs.4 See 8 C.F.R.

480 F.3d 109

§ 208.16(c)(4) (implementing CAT); IIRIRA § 601(a)(1), Pub.L. No. 104-208, div. C, 110 Stat. 3009, 3009-689 (amending the definition of persecution in 8 U.S.C. § 1101(a)(42)). In January 2001, the same IJ who had presided over Lin's 1994 hearing denied Lin's reopened application. The BIA summarily affirmed this new denial, and Lin now petitions for review of that final decision.

For the reasons that follow, we conclude that some of the IJ's 2001 findings were supported by substantial evidence, while others were marked by significant legal errors. Although several of those errors were not specifically raised in Lin's appeal to the BIA, Respondent's opposition to our review of Lin's petition did not assert Lin's failure to exhaust. Given Respondent's lack of objection, we hold that we may consider the merits of those arguments. Furthermore, because we cannot say with confidence that the IJ's errors did not affect his disposition of Lin's application, we grant Lin's petition for review, vacate the final order of removal, and remand Lin's application to the BIA.

I. Background

Because the IJ's 2001 decision rests, in part, on the record from Lin's 1994 hearing, we begin our review of the relevant background with an account of Lin's entry into the United States and his initial removal proceedings.

THE 1994 PROCEEDINGS

Lin entered the United States on or about April 17, 1993, through New Orleans, Louisiana.5 He was deemed inadmissible and was taken into custody by the Immigration and Naturalization Service ("INS").6 He remained in custody until June 4, 1993, when he was released on bond. On July 2, 1993, Lin, through counsel, successfully moved to transfer venue of his case to New York City, and on September 17, 1993, Lin applied for political asylum.

Lin's form I-589 Request for Asylum asserted that he had been persecuted by Chinese authorities because of his family's violation of China's one-child population control policy. The narrative portion of the form stated that Lin had two children, born in 1985 and 1986, and that the birth of his second child was unauthorized under Chinese family planning laws. As a result, the younger child could not be registered in the family's household registration book until Lin paid a fine of 6,000 yuan in 1990.

His application further attested that at the end of 1991, Lin's wife became pregnant for a third time, and that she was forced to undergo an abortion after family planning officials were informed of the

480 F.3d 110

pregnancy. Following this abortion, Lin himself was ordered to undergo sterilization, and he fled to a friend's house. Family planning cadres sought Lin at his home, and, not finding him there, destroyed some of Lin's property as punishment. Lin's wife became pregnant for a fourth time at the end of 1992, and she was subjected to another forcible abortion. Once again family planning officials pursued and threatened to arrest Lin for sterilization. But Lin, following a friend's warning, had already left his home in January 1993, ultimately to come to the United States. Lin stated that, if returned to China, he would be subject to forcible sterilization and imprisonment because of his violation of China's family planning laws.

A hearing on Lin's application took place before an IJ on December 15, 1994. Lin, represented by counsel, testified on his own behalf and recounted many of the same facts that he had included in his written application.7 In doing so, he added some further details. He described the fine of 6,000 yuan for the birth of his second son, as well as his wife's third pregnancy at the end of 1991 and the forcible abortion of this pregnancy. He dated this first abortion as occurring after the April 1992 discovery of his wife's pregnancy by the family planning cadres. At the time of this abortion, Lin received his first notification that he must submit to sterilization. In order to avoid the procedure, he went into hiding approximately six kilometers from his home. He returned home after three months, upon payment, by his parents and his wife, of a fine of 3,000 yuan. In July 1992, around the time that Lin returned from hiding, his wife was implanted with an IUD. Approximately ten days later, Lin and his wife had the device removed by a private doctor, and soon thereafter, Lin's wife became pregnant for a fourth time. A government IUD check led to the discovery of that pregnancy, and Lin's wife was forced to undergo a second abortion in December 1992. Following this second abortion, family planning officials again sought Lin for sterilization, but based on a friend's warning, Lin had already fled. Shortly after, Lin left China for the United States.8

Lin's verbal account of the events surrounding his wife's December 1992 abortion also described an episode not mentioned in his I-589 form. Lin testified that family planning cadres took his wife to the hospital for the procedure. Lin went with them, and while waiting for his wife to emerge from the operating room, he became distraught at the situation. He began "verbally [to] abuse the [family planning] Cadres," calling them murderers and shouting slogans against family planning policy. Other individuals in the hospital waiting room were sympathetic and joined in. As a result of this impromptu protest, family planning officials attempted to arrest

480 F.3d 111

Lin, but he managed to escape.9

The IJ denied Lin's application for asylum and withholding of removal in an oral decision of December 15, 1994. This decision was never appealed to the BIA.

CHANGES IN LAW AND 2000-2001 PROCEEDINGS

Subsequent to the IJ's 1994 decision, two changes in the law applicable to asylum and withholding of removal claims occurred. First, in 1996, Congress amended the INA to extend the definition of a political refugee, for purposes of asylum and withholding of removal claims, to individuals subjected to forced abortions or sterilizations, or who were otherwise persecuted for opposition to coercive population control programs. See IIRIRA § 601(a)(1), Pub.L. No. 104-208, div. C, tit. III, 110 Stat. 3009, 3009-699 (amending 8 U.S.C. § 1101(a)(42)).10 The following year, the BIA interpreted the amended 8 U.S.C. § 1101(a)(42) as making the spouses of individuals who were forced to undergo sterilizations or abortions per se eligible for asylum. See In re C-Y-Z, 21 I. & N. Dec. 915, 918 (BIA 1997); see also Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184, 187-88 (2d Cir.2005) (recounting the changing legislative and administrative positions regarding persecution through state-enforced family planning in U.S. immigration law).

Second, in 1998, Congress passed legislation to implement, in the immigration context, the Convention Against Torture. See Foreign Affairs...

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  • Butcher v. Wendt, Docket No. 19-224-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 22, 2020
    ...v. Mukasey , 549 F.3d 631, 639 (4th Cir. 2008), our court has held that it is not a "jurisdictional requirement," Lin Zhong v. DOJ , 480 F.3d 104, 120 (2d Cir. 2007).Similarly, in Fama , the court invoked "hypothetical jurisdiction" to avoid a question involving the one-year statute of limi......
  • United States v. Gutierrez-Campos, 21 Cr. 40 (JPC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 31, 2022
    ...to correct its errors and develop a full evidentiary record.'” Taveras, 504 F.Supp.3d at 288 (quoting Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 125 (2d Cir. 2007)); cf. Palomar-Santiago, 141 S.Ct. at 1621 (rejecting the defendant's argument that “further administrative review of a remov......
  • Zhong v. U.S. Dept. of Justice, Docket No. 02-4882-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 31, 2007
    ...discussion. The first is primarily of interest to this court and circuit. It asks whether the majority in Zhong v. U.S. Dep't of Justice, 480 F.3d 104 (2d Cir.2007), amending and superseding Zhong v. U.S. Dep't of Justice, 461 F.3d 101 (2d Cir.2006), ignored our rules making previous circui......
  • Washington Gas Light v. Public Service, No. 08-AA-148.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 8, 2009
    ...to suits at law, and that tendency is recognized and articulated in the Myers case."). 47. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 118-19 & n. 18 (2d Cir.2007); see also Grullon v. Mukasey, 509 F.3d 107, 111-12 (2d Cir.2007) (clarifying, after Lin Zhong, that failure to take a......
  • Request a trial to view additional results
538 cases
  • Butcher v. Wendt, Docket No. 19-224-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 22, 2020
    ...v. Mukasey , 549 F.3d 631, 639 (4th Cir. 2008), our court has held that it is not a "jurisdictional requirement," Lin Zhong v. DOJ , 480 F.3d 104, 120 (2d Cir. 2007).Similarly, in Fama , the court invoked "hypothetical jurisdiction" to avoid a question involving the one-year statute of limi......
  • United States v. Gutierrez-Campos, 21 Cr. 40 (JPC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 31, 2022
    ...to correct its errors and develop a full evidentiary record.'” Taveras, 504 F.Supp.3d at 288 (quoting Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 125 (2d Cir. 2007)); cf. Palomar-Santiago, 141 S.Ct. at 1621 (rejecting the defendant's argument that “further administrative review of a remov......
  • Zhong v. U.S. Dept. of Justice, Docket No. 02-4882-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 31, 2007
    ...discussion. The first is primarily of interest to this court and circuit. It asks whether the majority in Zhong v. U.S. Dep't of Justice, 480 F.3d 104 (2d Cir.2007), amending and superseding Zhong v. U.S. Dep't of Justice, 461 F.3d 101 (2d Cir.2006), ignored our rules making previous circui......
  • Washington Gas Light v. Public Service, No. 08-AA-148.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 8, 2009
    ...to suits at law, and that tendency is recognized and articulated in the Myers case."). 47. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 118-19 & n. 18 (2d Cir.2007); see also Grullon v. Mukasey, 509 F.3d 107, 111-12 (2d Cir.2007) (clarifying, after Lin Zhong, that failure to take a......
  • Request a trial to view additional results

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