Xu Hang Zhang v. Attorney General of the United States

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-4584

XU HANG ZHANG; PING MEI LIN,

Petitioners

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Frederic G. Leeds
(Nos. A099-686-987/8)

Submitted Under Third Circuit LAR 34.1(a)
June 3, 2010

Before: AMBRO, CHAGARES, and VAN ANTWERPEN, Circuit Judges

(Opinion filed: July 22, 2010)

OPINION

AMBRO, Circuit Judge

Xu Hang Zhang and Ping Mei Lin seek review of the final order of the Board of
Immigration Appeals (“BIA”) denying their request for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”).1 For the reasons that

follow, we grant their petition for review in part, deny it in part, and remand the case for

further proceedings consistent with this opinion.

Zhang and Lin are a husband and wife from the People’s Republic of China. Both

entered the United States without a visa—Lin in December 2005 2 and Zhang (with the

couple’s son) in January 2006. Zhang then filed an asylum application with United States

Citizenship and Immigration Services (“CIS”). CIS denied Zhang’s application, finding

that his “testimony was not credible in material respects, . . . [and that he] failed to meet

the burden of establishing . . . refugee [status under] 8 C.F.R. § 208.13.” (A.R. 170.)

Zhang conceded removability and re-filed an application for asylum, withholding of

removal, and CAT protection.

Zhang’s amended application alleged that he and his wife were persecuted while in

China. In particular, he highlighted three incidents, two involving the underground

Catholic Church and one involving a forced abortion. The first church-related incident

allegedly took place in May 2003, when a secret church gathering was discovered by

1
Lin is a derivative beneficiary of Zhang’s applications for asylum, withholding of
removal, and CAT protection.
2
There are inconsistencies regarding the date Lin entered the United States. In some
instances the record notes she arrived in December 2004 and in others the date is
December 2005.

2
local cadres. Everyone escaped except Zhang, who was detained for 24 hours and abused

by the cadres. In order to be released, Zhang promised to quit the underground church;

however, he broke this promise shortly thereafter. The second church-related incident

allegedly occurred in November 2004, when Zhang decided to house a priest and

organize a Mass in his home. The cadres learned of this and set out to arrest him again;

however, Zhang and his wife were tipped off and fled to a family member’s home for

safety. They then left the country.

Between these two incidents, Lin was allegedly forced to have an abortion.

Following the birth of her first child, Chinese authorities inserted an IUD. The IUD fell

out, however, and Lin became pregnant. After hiding from the authorities and skipping

her periodic gynecological examinations for seven months, Lin was found by local

cadres, dragged to a hospital, and forced to have an abortion.

In addition to these allegations of past persecution, the couple also fears future

persecution based on the recent birth of their second child, who was born in the United

States. They allege that this birth is a violation of China’s Family Planning Policy, and

that they will be persecuted upon their return to China.

Following a hearing in April 2007, the Immigration Judge denied the petitioners

all relief. First, he concluded that “at this time . . . the [petitioners] as a matter of law

[could not] pursue [the] theory [that the birth of a second child in the United States would

constitute a violation of China’s Family Planning Policy].” (A.R. 69 (emphasis added).)

He also found that Zhang was not credible. This adverse credibility finding was based on

3
various inconsistencies in Zhang’s testimony, including: (1) the number of people

arrested in the May 2003 incident; (2) the number of cadres involved in Zhang’s arrest;

(3) the extent of the petitioners’ involvement with the underground church in China; (4) a

priest’s failure to corroborate either of the petitioners’ church-related incidents of

persecution in a letter to the IJ; and (5) contradictory dates given for the November 2004

incident. Finally, the IJ dismissed the forced abortion claim because his adverse

credibility determination as to the church-related incidents “raise[d] questions [about] the

testimony on the family planning matter” as well. (A.R. 71.)

The petitioners filed a notice of appeal. In October 2008 the BIA affirmed,

holding that the adverse credibility determination was not clearly erroneous and that they

“agree[d] with the [IJ’s] decision that the [petitioners were] not eligible for relief based on

the birth of children in the United States.” (A.R. 2.) Zhang then filed a timely petition

for review by us.

II.

We have jurisdiction under 8 U.S.C. § 1252 to review a final order of removal

issued by the BIA. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). “[W]hen the

BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s

decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v.

Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). “We review the BIA’s legal decisions de

novo . . . .” Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d Cir. 2006) (internal quotation

marks omitted). When an erroneous legal standard is applied, “a remand is . . . required

4
to permit application of the appropriate legal standard.” Rapanos v. United States, 547

U.S. 715, 786 (2006) (Kennedy, J., concurring) (citing INS v. Ventura, 537 U.S. 12, 16

(2002)); see Konan v. Att’y Gen, 432 F.3d 497, 501 (3d Cir. 2005) (stating that when a

“claim was never considered [by the IJ or BIA,] the case must be remanded”). Factual

findings, including findings of adverse credibility, are subject to the substantial evidence

standard. Sandie, 562 F.3d at 251. “Under this deferential standard, ‘findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

III.

In their petition for review, the petitioners challenge the IJ’s adverse credibility

determination, as well as the IJ’s (and BIA’s) dismissal of their U.S.-birth claim.3 We

grant their petition for review in part and deny it in part. While we reject the petitioners’

challenge to the IJ’s adverse credibility finding because it was supported by substantial

evidence, we reject as well the IJ’s (and BIA’s) conclusion that the petitioners are barred

as a matter of law from arguing that they will be persecuted under China’s Family

Planning Policy for having a second child while in the United States. This legal error

requires us to remand this case to the IJ for further review of the evidence regarding the

petitioners’ U.S.-birth claim.

3
Although the Government alleges that the petitioners have not challenged the
dismissal of their U.S.-birth claim (Gov’t Br. at 9 n.4), the petitioners did raise it in their
brief before the BIA (A.R. 11-12, 19), as well as in their brief before us (Pet’r Br. at 18-
19). In addition, the BIA expressly affirmed the IJ’s decision on these grounds. (A.R. 2.)
Therefore, we may consider the petitioners’ U.S.-birth claim here.

5
A.

We turn first to the IJ’s adverse credibility determination. To reverse such a

finding, “the evidence of credibility must be so strong . . . that in a civil trial [the alien]

would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d

at 222. After the REAL ID Act of 2005, credibility determinations must be made

“[c]onsidering the totality of the circumstances,” and may be based on “the inherent

plausibility of the applicant’s . . . account, the consistency between the

applicant’s . . . written and oral statements . . . , the consistency of such statements with

other evidence of record . . . , and any inaccuracies or falsehoods in such statements.” 8

U.S.C. § 1158(b)(1)(B)(iii). The trier of fact may make the assessment “without regard to

whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s

claim, or any other relevant factor.” Id. We may only overturn an adverse credibility

determination if we conclude that “any reasonable adjudicator would be compelled to

conclude to the contrary.” Id. § 1252(b)(4)(B) (emphasis added).

The IJ offered numerous reasons as to why Zhang lacked credibility. He noted, in

particular, that: (1) Zhang’s written and oral statements about the number of people

arrested in the May 2003 incident were inconsistent; (2) the number of cadres involved in

Zhang’s arrest (during the May 2003 incident) changed from two to three from his written

statement to his oral testimony; (3) Zhang’s oral testimony about his church activities was

confused and incoherent; (4) the affidavit from the petitioners’ priest in China (which was

supposed to corroborate their stories) failed to offer any information about either church-

6
related incident; and (5) Zhang provided different dates for the November 2004 incident

in his written and oral statements. Collectively, these inconsistencies provide substantial

evidence to affirm the IJ’s (and BIA’s) decision. We outline each.

Turning first to the May 2003 incident, the IJ began his analysis by discussing the

issue of how many church members were arrested. Zhang’s application stated that “the

village cadres arrived on the scene . . . and proceeded to arrest us,” but during the hearing

Zhang testified that only he was arrested. (A.R. 127-28, 467.) Although Zhang offered a

plausible explanation for this apparent inconsistency, the IJ rejected it.

In addition, the IJ noted that Zhang confused the number of cadres that arrested

him. In Zhang’s written statement, he said, “I was uncertain who pushed me[,] but I fell

to the ground. After getting back on my feet two village cadres were before me and

firmly grabbed me. The village cadres arrested me and placed me in detention . . . .”

(A.R. 467.) At the hearing, the IJ asked Zhang how many cadres came into the church, to

which he replied “[t]hree of them” (A.R. 126); later, when asked whether three grabbed

him and brought him in, Zhang hesitated and then said “correct.” (A.R. 129.) When

asked to clarify this inconsistency, Zhang explained that “[t]wo of them apprehend[ed]

me, yes, but when we [were] leaving there, it was three.” (A.R. 150.) The IJ did not

accept this explanation.

The third inconsistency in Zhang’s testimony concerned his overall involvement in

the underground Catholic Church. This particular portion of Zhang’s testimony was

7
virtually incomprehensible; however, we have derived the following basic facts.4 Zhang

and his wife actively participated in an underground church community, which generally

congregated in private homes and was unofficially named “Lianjiang.” Their

participation in this group is what led to their alleged persecution and Zhang’s arrest. The

couple also on rare occasions went to a formal underground church named “Yangwei

Village Church.” This church maintained a physical building and is where Zhang and Lin

were married.5 The IJ concluded that the overall level of confusion in this part of Zhang’s

testimony undermined his credibility.6

The final two inconsistencies discussed in the IJ’s opinion were related to the

November 2004 incident. To repeat, this incident followed Zhang’s decision to provide

refuge to a priest in his home, after which the petitioners were forced to flee their village

(and, later, the country itself). Turning first to a simple inconsistency, the IJ noted that

4
We note that Zhang mixes the Mandarin and Foo Chow dialects. This might have
contributed to some of the confusion during his testimony.
5
In reviewing Zhang’s testimony, it is possible that he did not understand what the IJ
meant by “church involvement.” For instance, at the hearing, Zhang described his
community’s religious gatherings in some detail, while at the same time insisting that
there was no church in his village. However, even as Zhang struggled with the IJ’s
church-related questions, his wife (Lin) had little trouble following a similar line of
questioning.
6
The transcript from the IJ’s oral decision mentions two churches that were not
otherwise mentioned in the administrative record—“Yung Village Church” and “Yang Yi
Village Church.” The IJ also refers to “Lianjiang Catholic Church,” which was discussed
during the petitioners’ hearing. This confusion may have been the product of linguistic
difficulties, transcription errors, or both. It is nonetheless not fatal to the IJ’s adverse
credibility determination, which is supported by substantial evidence.

8
Zhang offered contradictory dates for this incident in his written statement and oral

testimony. In Zhang’s written statement, the second church-related incident was dated

April 2005; however, in his oral testimony, he claimed that the same event took place in

November 2004. At the hearing, Zhang could not provide an explanation for this

inconsistency.

The final inconsistency involved a letter from a Chinese priest that was submitted

by the petitioners. Based on Zhang’s testimony, the IJ assumed that this letter was from

the priest involved in the November 2004 incident. After reviewing the record, we are

not certain that this is the case, although it was reasonable for the IJ to conclude as much.

Regardless whether it was the same priest or just another local clergyman, the letter failed

to mention either the May 2003 arrest (which the priest knew about, according to Zhang’s

testimony) or the November 2004 incident (in which the priest may have been involved).7

Instead of discussing these incidents, the priest mentioned the general persecution of

7
At the hearing, the IJ asked whether “the priest that issued you this certificate . . .
kn[e]w that you were arrested in May of 2003.” (A.R. 144.) Zhang replied, “Yes, he
knew . . . .” (A.R. 144.) The IJ followed up by asking, “Did you know that the priest
doesn’t make any mention of that at all in his letter?” (A.R. 144.) Zhang simply replied
with a question, “He didn’t write that?” (A.R. 144.) Zhang offered no further
explanation for the priest’s omission.
In addition, when the IJ explored Zhang’s account of the November 2004 incident,
the IJ asked whether Zhang provided an affidavit from a friend, his uncle, or the priest.
Zhang responded that the “[p]riest issue[d] a certificate.” (A.R. 146-47.) We take this
response as referring to the same priest letter noted above, as it appears to be the only
affidavit provided by a priest in this case. Interestingly, there is no mention of the
November 2004 incident in that letter. At the hearing, the IJ asked, “Are you aware that
this certificate issued by the priest makes no mention of th[e] [November 2004]
incident?” (A.R. 147.) Zhang answered, “Huh? I did not know.” (A.R. 147.)

9
Catholics in China, touching on how “religious freedom . . . is limited,” “nuns [were]

dangerous[ly] . . . pursu[ed],” “churches [were] . . . destroyed,” and “priests were

arrested.” (A.R. 543.)

In the end, there is little doubt that this case presents at least borderline

inconsistencies. Were we reviewing the IJ’s findings de novo, we might have reached

different conclusions about some of these inconsistencies. Nevertheless, the sheer

number of inconsistencies (including a few that go to the heart of the petitioners’ claims)

support the IJ’s adverse credibility determination. Furthermore, applying the deferential

substantial evidence standard, we cannot conclude that we are compelled to overturn the

IJ’s finding.

Turning to the petitioners’ U.S.-birth claim, the IJ held that “as a matter of law . . .

the concept of having a second child in the United States at this time in the Third Circuit

. . . is not a recognized legal theory.” (A.R. 68 (emphasis added).) 8 The BIA agreed,

concluding that the petitioners were “not eligible for relief based on the birth of children

in the United States.” (A.R. 2.) In so holding, the IJ relied on Matter of C-C-, 23 I. & N.

Dec. 899 (BIA 2006), and our not precedential opinion in Qiu v. Attorney General., 224

F. App’x 156 (3d Cir. 2007).9 We conclude that both the IJ and BIA misread controlling

8
Nevertheless, the IJ conceded that “the law is fluid in this area and it may change . . .
if the respondent were to take an appeal of my decision.” (A.R. 68.)
9
The BIA also cited Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007). There, the
petitioner left China, married, and fathered two children while in the United States. Later,

10
precedent in this area.

We have never held that a Chinese petitioner is precluded, as a matter of law, from

arguing a fear of future persecution based on the birth of a child while in the United

States. Instead, we have provided the same case-by-case analysis in the U.S.-birth

context as we have when addressing other persecution claims. As such, even in cases

where past persecution has not been established (as in the current case), an alien can still

demonstrate a well-founded fear of future persecution by showing that he has a “genuine

fear,” and that a “reasonable person in [his] circumstances would fear persecution if

returned to [his] native country.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.

2003) (internal quotation marks omitted).

Following this approach, a Chinese alien with two or more children (whether born

in the United States or elsewhere) may qualify as a refugee if the evidence presented

establishes: (1) that the births violate local family planning policies; and (2) that local

he argued that, if forced to return to China, he would be persecuted for both violating
China’s Family Planning Policy and departing illegally. The BIA rejected the petitioner’s
arguments and denied him relief. Nevertheless, it did not foreclose U.S.-birth claims as a
matter of law. Instead, the BIA made a case-specific determination, based on the
evidence presented by the petitioner. Indeed, Matter of J-W-S- was decided following a
remand order from the Second Circuit. This order directed the BIA “specifically [to]
address all of the evidence in the record and explain the basis for [its] conclusion that the
applicant does not have an objectively well-founded fear of sterilization on account of his
opposition to China’s one-child policy if he is removed to China.” Id. at 187 (internal
quotation marks omitted). Following the Second Circuit’s instructions, the BIA
concluded as follows: “Having considered all of the relevant evidence, we find that the
State Department reports are more persuasive than the [evidence offered by the petitioner]
in determining the chances that the applicant will be sterilized if he returns to China.”
Id. at 192 (emphasis added).

11
enforcement of the policies is done through acts that amount to persecution. See, e.g.,

Matter of J-H-S-, 24 I. & N. Dec. 196, 197-98 (BIA 2007) (concluding that “an alien who

has established that he or she has had two children in China may qualify as a refugee if

the evidence presented establishes, on a case-by-case basis, that the births violated family

planning policies in that alien’s local province . . . and that . . . local family planning

enforcement . . . would give rise to a well-founded fear of persecution because of the

violation”); see also Matter of S-Y-G-, 24 I. & N. Dec. 247, 251 (BIA 2007) (determining

that, even when the second child was born in the United States, the two-prong rule in

Matter of J-H-S- remains the guiding authority).

The Second Circuit Court considered a similar question in Guo v. Gonzales, 463

F.3d 109 (2d Cir. 2006). There, the petitioner applied for asylum and withholding of

removal on the basis that she would be forcibly sterilized as a result of violating China’s

Family Planning Policy. The petitioner allegedly had three children; one born in China,

one adopted in China, and a third born in the United States. However, because of

significant inconsistencies in her airport interview, asylum application, and hearing

testimony, the IJ determined that Guo was not credible, and her application for relief was

denied. Years later, she filed a motion to reopen to apply for CAT relief, which the BIA

rejected. She again filed a motion to reopen, this time based on changed country

conditions. The BIA rejected this claim as well. Following her petition for review, the

Second Circuit Court remanded for further consideration of the evidence, concluding

“that IJs and the BIA have a duty to explicitly consider any country conditions evidence

12
submitted by an applicant that materially bears on his [or her] claim.” Id. at 115 (internal

quotation marks omitted).10

The IJ reads too much into Qiu and Matter of C-C-, and does not adequately

address the record evidence offered by the petitioners. First, Qiu is a not precedential

opinion, so it is not binding authority.11 Second, Matter of C-C- did not establish an

ironclad rule against U.S.-birth claims.12 Instead, it merely held that an alien seeking to

reopen removal proceedings cannot establish asylum eligibility by showing that she gave

birth to two children and offering otherwise unpersuasive evidence. See Matter of C-C-,

23 I. & N. at 903 (“Having considered all of the relevant evidence, we find that the State

Department reports are more persuasive than the Aird affidavit in determining the

10
Also relevant to our case is that the Court added that “‘an applicant may prevail on a
theory of future persecution despite an IJ’s adverse credibility ruling as to past
persecution, so long as the factual predicate of the applicant’s claim of future persecution
is independent of the testimony that the IJ found not to be credible.’” Id. at 114 (quoting
Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006) (emphasis in original)); see also Guo
v. Ashcroft, 386 F.3d 556, 562-63 (3d Cir. 2004) (stating that “[t]he legitimacy of an
initial credibility determination does not . . . justify denial of all subsequent applications
for asylum” and, furthermore, an “adverse credibility [determination is disconnected]
from China’s family planning policy”). Accordingly, the adverse credibility
determination here is not necessarily fatal to the petitioners’ claims.
11
The IJ nonetheless described Qiu as “[t]he leading case.” (A.R. 68.)
12
The Government’s citation to Yu v. Attorney General, 513 F.3d 346, 348-49 (3d Cir.
2007), is similarly unavailing, as Yu represents nothing more than a case-specific
determination that the petitioners did not present sufficient evidence “to establish that
there was a national . . . policy of sterilizing returning Chinese citizens who have more
than one child.” Id. at 347 (internal quotation marks omitted). Furthermore, we
concluded that the BIA’s determination was “supported by substantial evidence,” as its
“explanation of why it decided to credit [State Department] reports over [other evidence]
[wa]s well reasoned.” Id. at 349.

13
chances that the respondent will be sterilized if she returns to China.”).13 Finally, even as

the IJ mentioned certain pieces of record evidence in his discussion of the petitioners’

U.S.-birth claim—in particular, the 2005 Country Profile from the State Department and a

letter from the State Department on U.S.-birth claims—he concluded that he was

“unfortunately constrained . . . to find that the [petitioners] as a matter of law cannot

pursue [their U.S.-birth claim] at this time.” (A.R. 69.)

In the end, none of the cases cited by the IJ, BIA, or Government broadly

concludes that the petitioners’ U.S.-birth claim was foreclosed as a matter of law, or that

future petitioners would be barred from using different evidence to establish asylum

eligibility on similar grounds. This is true even as we recognize that Matter of C-C- has

set a high bar for any petitioner pursuing a U.S.-birth claim. Nonetheless, the IJ must

consider all of the relevant evidence in the record before rejecting it.

* * * * *

For these reasons, we grant the petition for review in part and deny it in part. We

affirm the IJ’s adverse credibility determination. However, we reject the IJ’s (and BIA’s)

conclusion that the petitioners’ U.S.-birth claim was foreclosed as a matter of law, and

thus remand to the IJ for further proceedings consistent with this opinion.

13
Dr. John Aird was a “retired demographer” on whose affidavits many similarly
situated petitioners relied. Yu, 513 F.3d at 347 (3d Cir. 2007).