07-1073-ag
Zheng v. M ukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
__________
August Term, 2007
Argued: April 24, 2008 Decided: January 13, 2009
Docket No. 07-1073-ag
__________
________________________________________________________
DONG ZHONG ZHENG,
Petitioner,
-v-
MICHAEL B. MUKASEY, ATTORNEY GENERAL,1
Respondent.
________________________________________________________
KEARSE and POOLER, Circuit Judges, and COTE, District Judge.2
Petitioner seeks review of the February 22, 2007 decision of the Board of Immigration
Appeals, which affirmed an Immigration Judge’s July 20, 2005 order denying his applications for
asylum, for withholding of removal, and for relief under the Convention Against Torture.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), current Attorney General
Michael B. Mukasey is automatically substituted for former Attorney General Alberto R.
Gonzales as the respondent in this case.
2
The Hon. Denise Cote, United States District Judge for the Southern District of New
York, sitting by designation.
Because we find that the Immigration Judge committed errors both as to the timeliness of the
petitioner’s application for asylum and in finding that the petitioner had not testified credibly in
support of his claims, we GRANT the petition, VACATE the agency’s decision denying relief,
and REMAND to the agency for further proceedings.
__________
TROY NADER MOSLEMI, Miami, FL (Lin Li, Law
Office of Fengling Liu, New York, NY, on the brief), for
Petitioner.
BENJAMIN J. ZEITLIN, Trial Attorney, Office of
Immigration Litigation (Greg D. Mack, Senior Litigation
Counsel, Peter D. Keisler, Asst. Attorney General, on the
brief), U.S. Department of Justice, Washington, D.C., for
Respondent.
POOLER, Circuit Judge:
Dong Zhong Zheng has timely petitioned this Court, pursuant to Section 242 of the
Immigration and Nationality Act (“INA”), as amended 8 U.S.C. § 1252, for review of the
February 22, 2007 decision of the Board of Immigration Appeals (“BIA”), which affirmed
Immigration Judge Sandy K. Hom’s (“the IJ”) July 20, 2005 order denying Zheng’s applications
for asylum, for withholding of removal, and for relief under the United Nations Convention
Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (“CAT”),
Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (1988). We conclude that errors
committed by the IJ, as affirmed by the BIA, require remand of Zheng’s applications for further
proceedings consistent with this opinion.
2
FACTS
According to his Form I-589, Application for Asylum and for Withholding of Removal,
filed March 18, 2005, Dong Zhong Zheng is a citizen of the People’s Republic of China, born on
September 20, 1968, in the city of Lianjiang, which is located in Fujian Province. He married
Fang Zhu Zhang on March 26, 1992. The couple have one child, a son, Hong Xian Zheng, born
on March 28, 1993.
Zheng’s application asserts that he entered the United States illegally, at Hildago, Texas,
on December 15, 2004. On December 22, 2004, the United States Immigration and Customs
Enforcement issued a Notice to Appear to Zheng, charging him with being a removable alien
pursuant to INA Section 212(a)(6)(A)(i). As will later become important, the Notice to Appear,
which is signed by Terry Stewart, a Supervisory Border Patrol Agent, specifically asserts that
Zheng “arrived in the United States at or near Hildago, Texas, on or about December 15, 2004.”
In his initial appearance before the agency, on March 18, 2005, Zheng admitted to the truth of the
allegations set forth in the Notice to Appear.
According to a personal statement attached to his asylum application, Zheng asserts that
he “came to the United States because I had been persecuted in China under its family planning
policy.” Specifically, this assertion arises from the desire of Zheng and his wife to have another
child after the birth of their son, in 1993. Zheng elaborates in the personal statement as follows:
However, the local government policy of the time prescribed that
there must be an interval of no less than six years before a second
child could be born, regardless of the first child’s gender. After the
birth of our first child, my wife was inserted an IUD against her
will and was ordered to go for a gynecological examination on a
regular basis. Although we would like very much to have another
child, we dared not violate the local government policy. We had to
wait out the time until we would be permitted to have a second
child.
3
So my wife got pregnant again in 1999. Little did we
expect it, however, that the local government was to make changes
to its family planning policy during the time of my wife’s
pregnancy. The new policy laid down that no more childbirth was
permitted if the first child was male. The Family Planning Office
ordered my wife to have an abortion surgery, but she did not go for
it. In October 1999, my wife was taken to the clinic by force for an
abortion. At the time, I happened to be away working. As soon as
I got wind of it, I came back on the run and attempted to reason
with the man in charge of the Family Planning Office. . . . I then
accused him of being inhumane and cursed that he was to have no
offspring. He became angry . . . and swore that he would have me
sent to jail. After I left his house, I went away to work. For the
following several years, I dared not return to my home village in
broad daylight. I would only tiptoe home when it was time to
celebrate a new year or a festival, because my wife had warned me
that the head of the Family Planning Office had pledged to arrest
me . . . the moment he saw me back.3
These claims are further explained in a letter, and accompanying English translation,
dated “2005.6.1,” composed by Zheng’s wife. She avers that she “was forced to wear an IUD
three months after the birth of our child [in 1993]. I was requested to go to the township
government every four months to have my IUD and possible pregnancy detected.” The letter
continues:
With Heaven’s blessing, I got pregnant again in May 1999 .
. . . On October 27, 1999, several Family Planning officials broke
into our home and alleged that I had violated the national family
planning policy so that an abortion must be performed on me right
away. . . . They cruelly dragged me into a vehicle and drove me to
Lianjaing Family Planning Service Center where a nurse
immediately shot me an abortion injection. After a few hours, I
felt a sharp pain in the belly. About an hour after that, my unborn
child was thus ruthless killed by them. This abortion had inflicted
much harm on me both mentally and physically. Not only have I
3
In order to avoid repeated resort to the use of “[sic]” which is likely to be distracting to
the reader, we quote verbatim from all documents in the record, notably including the transcript
of Zheng’s asylum hearing and the written decision of the IJ denying him relief.
4
lost my child forever, but also I have been suffering a chronical
backache and I had to take medications and receive injections. At
the time, my husband was away at a job. When he heard what had
happened, he was furious. He immediately came back to reason
with the Family Planning Officials. . . . They threatened to send
my husband to the labor penitentiary and even have him sentenced
to prison. My husband got into a panic and took off, not even
daring to come back home. Every now and then, the local
policemen would come to my house for my husband, who forced
my husband into a fugitive life, roaming every where but his home,
except for the times of the annual festivals; he would secretly come
home for a temporary reunion with us.
The record also contains a document, and accompanying translation, bearing the stamp of the
“Family Planning office of Jiangnan, Lianjiang County,” which reflects that Zheng’s wife had an
abortion on October 27, 1999.
Zheng took up residence in Jackson Heights, New York and his case was transferred from
Texas to the Immigration Court in New York. Petitioner’s Brief at 3. A hearing on Zheng’s
asylum application was held on July 20, 2005 at which Zheng was represented by counsel.4 The
only witness at the hearing was Zheng, who testified through a Mandarin Chinese interpreter.
After brief questioning by his counsel, Zheng was examined by Government counsel,
who was particularly interested in a “Household Register” Zheng had submitted in support of his
application. The following colloquy, as recorded in the hearing transcript, occurred:
Q. Now according to your testimony were in hiding from
October of 1999 until you left China, is that right?
A. Yes.
Q. And now the household registration in between that
your household was registered in November of 2001 list you as the
head of the household (indiscernible) village?
4
We note that Zheng is represented by different counsel on the instant appeal.
5
A. Yes, because before we belong to (indiscernible)
village. And then later they separate that village and they issued a
new household booklet to us.
Q. Now where does your wife reside now?
A. My wife there lives in our own home (indiscernible)
wearing the IUD and going to have a check up once every four
months.
* * *
Q. And did you ever live at that address?
A. I before I lived in that place in that address.
Q. And where you living at that address in November of
2001?
A. No, I did not live there in November 2001.
Q. So why did the government issue a household
registration in November of 2001 indicating that you live at that
address?
A. Because I’m not a criminal, I just (indiscernible) the
family planning policy which is a local policy and they still give
me this one.
Q. I’m sorry?
A. They still give me.
Q. Well, isn’t it your testimony that you were in hiding
because you feared that the family planning officials would arrest
you?
A. Yes, but often they came to my home to look for me.
Q. And why did they list your household registration if
they wanted to arrest you?
A. Because they (indiscernible) our own village
(indiscernible) village into two (indiscernible) villages and when
they separate that one they issue this booklet to us.
6
In response to questioning by the IJ, Zheng testified that he had left China by taking a
plane from Beijing, making a brief stop in France, and then traveling by air to Mexico. Zheng
asserted that he possessed no travel documents from this journey because he had lost them in the
Mexican desert. He stated, “I don’t know the details of when I entered into the United States
because I traveled for several days.” Zheng also acknowledged that he had retained no
documentation of his assertion that he had borrowed a substantial sum of money from relatives
for travel and in order to pay the traffickers who aided his entry into the United States from
Mexico. Zheng further told the IJ that he possessed no copy of the local family planning
regulations which were the alleged source of his persecution in China, nor did he have any
medical records recording his wife’s condition after her 1999 abortion. The IJ also questioned
Zheng about his life after his wife’s abortion:
Q. . . . For five years you lived in China, you weren’t
arrested and you weren’t (indiscernible), you were working.
A. Yes, generally speaking I had a job, if I did not have a
job I just surrender place hiding there.
Q. So why didn’t you just have your wife come and live
with you?
A. Because once every four months she needs to go to have
a check up, if she failed to go other people did that one and they
would come to your home to catch people.
Q. But she wouldn’t be home, she’d be living with you.
A. Even she stayed with me once every four months, she
would come to have a check up.
Q. Oh, I mean –
A. Once every four months that she need to have that kind
of (indiscernible) for a check up.
7
Q. – why couldn’t she ju[s]t avoid it?
A. No, it won’t be that way because you had IV insertion
and you need to do that, to have check up.
Immediately upon the completion of Zheng’s testimony, the IJ rendered an oral decision
denying his application and entering an order for his removal from the United States. This was
followed by a written decision in support of the denial of relief, dated July 20, 2005, the same
day as Zheng’s hearing. This decision first holds that Zheng had failed to carry his burden of
proof with respect to demonstrating that he had filed his application for asylum within the
required one year of his arrival in the United States:
We have no difficulty to establish when the respondent had filed
his application because that is so marked on the application itself,
it was received by the Court on March 18 of 2005. The difficulty
the Court has is that to establish (1) the respondent came to the
United States, the Court had ask the respondent concerning his trip,
he indicated that he taken a plane from Beijing to France stopped
over and then came to Mexico spend one or two days and then
crossed the U.S.-Mexican border surreptitiously. However, when
asked about necessary and incidental travel documents or a plane
ticket or boarding pass, seat assignment, baggage claim check or
any materials or documents to tarry evidence to support his
assertion that he had made this trip to the United States, the
respondent admitted that he had none. He said that it had either
been lost in the desert or destroyed, but he had nothing other than a
ticket which he did not provide or boarding pass from Texas to
New York. . . . This certainly falls way short of the respondents
burden of establishing with clear and convincing evidence the date
of his arrival and therefore the Court finds that the respondents
claim is time barred . . . .
The IJ then stated that “in the event that the Board of Immigration of Appeals or
subsequent Federal Court determine that the respondent is entitled to consideration of asylum,
the Court will discuss the merits of the respondents claim.” Proceeding to undertake this
8
analysis, the IJ found that Zheng had not plausibly asserted that he faced persecution at the hands
of the national government of China, as opposed to local family planning authorities:
The respondent asserts that he was a fugitive when he was in the
People’s Republic of China, that the government authorities had
been reported by family planning officials concerning the
respondents obstruction of the policy and that he was sought by the
public security bureau and that he’s wanted by them. . . . So we’re
to believe the respondent, the respondent asserts that the policy in
the way that the government of China is repressive it’s harsh and
it’s unfair, however, the respondent was able to depart the People’s
Republic of China without any difficulty by using a false travel
document. Now this certainly undercuts and undermines his claim
that he was a fugitive and then he was wanted by the authorities. . .
. In other words, the respondent asserted that he was only being
sought for violating a local family planning problem and that it was
localized concerning his particular problem. Well that seems to be
contradictory to the respondents assertion that the government of
China wishes to do him harm or persecute him if he’s forced to
return . . . .
The IJ also determined that Zheng’s plausibility was severely undermined by the fact that
he had testified that he wished to have another child with his wife, but had apparently never
attempted to do so in the years after her 1999 abortion:
There’s nothing in his written statement that he ever attempted to
have another child but he stated that during the five year-period he
did, he did attempt to have and then he gave an explanation of why
he didn’t have and that seemed to be inconsistent and unresponsive
to the actual question itself. But it was certainly inconsistent with
his written statement and totally absent in non-existence in his wife
statement of support. But it certainly on its face is not plausible or
believable had the respondent wanted an additional child that he
had opportunities during that five year-period to do so and he never
exercised by choice. . . . [I]t’s not plausible and not believable
given that she still remains in the People’s Republic of China, able
to have children and has not been sterilized and the respondent
himself had never attempted to have additional children during a
five year-period thereafter.
Further, with respect to the matter of the “Household Register,” the IJ expressed
9
puzzlement as to why Zheng “would be placed as head of household despite his assertion that he
was a fugitive from the public security bureau, the very authority that would issue a household
register.” Finally, the IJ concluded “that the respondents presentations appear to be inconsistent,
contradictory both with his direct testimony offered to the Court as well as explanations that he
attempted to provide with questions that contained inconsistencies or problems, problems of
coherency and plausibility with his claim.”
Zheng timely filed an appeal to the BIA. This appeal was rejected in a brief decision,
dated February 22, 2007, “adopt[ing] and affirm[ing] the decision of the Immigration Judge.”
The BIA specifically stated that “[t]he record supports the Immigration Judge’s finding that the
respondent failed to demonstrate by clear and convincing evidence that he filed his asylum
application within 1 year of arriving in the United States” and that “[t]he record also supports the
Immigration Judge’s adverse credibility and burden of proof findings.” As noted above, Zheng
then filed a timely petition for review in this Court.
ANALYSIS
We have recently reiterated the relevant standards of review to be employed on this
appeal:
“When the BIA briefly affirms the decision of an IJ and adopts
the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s
decisions together.” Wangchuck v. Dep’t. of Homeland Sec., 448
F.3d 524, 528 (2d Cir. 2006) (alteration and internal quotation
marks omitted). We review the agency’s legal conclusions de
novo, see Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.
2007), and its factual findings, including adverse credibility
determinations, under the substantial evidence standard, treating
them as “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B);
10
see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).
Pinto-Montoya v. Mukasey, 540 F.3d 126, 129 (2d Cir. 2008) (per curiam).
In order to be considered a refugee and therefore eligible for asylum, the INA provides
that Zheng must show that he has suffered past persecution “on account of race, religion,
nationality, membership in a particular social group, or political opinion,” or that he has a well-
founded fear of future persecution on such grounds should he be ordered to return to his native
country. See 8 U.S.C. § 1101(a)(42). The statute further provides that an individual, such as
Zheng, who alleges that he has engaged in “resistance to a coercive population control program”
may be eligible for relief as one who has been persecuted, or will be persecuted, on account of
his political opinion. Id.; see also Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10
(2d Cir. 2007) (en banc). Past persecution alone is “rarely sufficient in itself to entitle an
applicant to asylum,” but it does “automatically give[] rise to a rebuttable presumption of a well-
founded fear of future persecution.” Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).
The Government can defeat this presumption “if ‘a preponderance of the evidence establishes
that a change in circumstances in the applicant’s country of nationality has occurred such that the
applicant’s fear is no longer well-founded.’” Id. (quoting Guan Shan Liao v. U.S. Dep’t of
Justice, 293 F.3d 61, 67 (2d Cir. 2002) (citing 8 C.F.R. § 208.13(b)(1)(i))). A well-founded fear
is “a subjective fear that is objectively reasonable. A fear is objectively reasonable even if there
is only a slight, though discernible, chance of persecution.” Tambadou v. Gonzales, 446 F.3d
298, 302 (2d Cir. 2006) (citations and internal quotation marks omitted).
Before we turn to the merits of Zheng’s claim, we are compelled to comment upon the
quality of the record before us. As indicated from the portions quoted above, the transcript of
11
Zheng’s asylum hearing is littered with the notation “(indiscernible).” In fact, in the twenty-six
pages of the testimonial portion of the hearing, the phrase occurs twenty-seven times. Certain of
Zheng’s explanations are difficult to apprehend, especially with regard to the matter of the
“Household Register.” Thus, the Government’s assertion that Zheng “offered a vague
explanation” as to why he was listed as a head of household on the 2001 document, a time during
which he asserted that he had fled his home, becomes very difficult for this Court to evaluate.
Government’s Brief at 9. The Seventh Circuit has hesitated to give weight to a petitioner’s
purportedly inconsistent testimony when the transcript of the testimony was “peppered with the
notation ‘indiscernible.’” Tandis v. Gonzales, 487 F.3d 1048, 1053 n.1 (7th Cir. 2007). Similar
concern is certainly appropriate in this case.
We must also make mention of the quality of the IJ’s decision of July 20, 2005. The
portions quoted above appear to indicate that the decision was dictated, but not read. In any
event, to state the matter plainly, the decision is very difficult to read. We therefore take this
occasion to endorse the First Circuit’s recent admonition to the effect that “Immigration Judges
would do well to take pains to use more straightforward language. The clearer a judge’s
findings, the easier they are for the parties to assess and for a reviewing court to evaluate.”
Chhay v. Mukasey, 540 F.3d 1, 7 (1st Cir. 2008); see also Figueroa v. Mukasey, 543 F.3d 487,
498 (9th Cir. 2008) (“An indiscernible IJ decision is problematic because when the agency’s
reasoning is indiscernible, the courts cannot exercise their duty of review.”; brackets and internal
quotation marks omitted).
A. The Timeliness of Zheng’s Asylum Application.
The INA provides that “[a]ny alien who is physically present in the United States or who
12
arrives in the United States . . . may apply for asylum,” 8 U.S.C. §§ 1158(a)(1), so long as “the
alien demonstrates by clear and convincing evidence that the [asylum] application has been filed
within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
The IJ found that Zheng had failed to meet this standard and, as the Government correctly
reminds us, the INA also mandates that, for the most part, no court shall have jurisdiction to
review the agency’s finding that an asylum application was untimely. See 8 U.S.C. § 1158(a)(3).
We do, however, retain jurisdiction to review constitutional claims and questions of law. See 8
U.S.C. § 1252(a)(2)(D). While we must be sensitive to the fact that constitutional claims or
questions of law are not raised when a petitioner “essentially disputes the correctness of an IJ’s
fact-finding or the wisdom of [an IJ’s] exercise of discretion,” Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 329 (2d Cir. 2006), we believe that Zheng has raised a valid constitutional
claim concerning the IJ’s finding that his asylum application was untimely.
As described above, the Notice to Appear issued to Zheng, which was signed by an agent
of the U.S. Border Patrol, asserted that he had “arrived in the United States at or near Hildago,
Texas, on or about December 15, 2004.” If this assertion is correct, Zheng’s asylum application,
which was indisputably filed on March 18, 2005, was timely filed according to the applicable 1-
year filing deadline. As also noted above, in his initial appearance before the agency, on March
18, 2005, Zheng admitted to the truth of the allegations set forth in the Notice to Appear.
Further, at no time, including at oral argument on this appeal, has the Government made any
suggestion that the December 15, 2004 entry date set forth in the Notice to Appear is inaccurate.
It is undisputed that Zheng was given no notice that the date of his entry into the United
States would be an issue at his July 20, 2005 asylum hearing. It is also undisputed that the
13
Notice to Appear was itself in the record before the court at the July 20, 2005 hearing. In spite of
this, however, Zheng’s entry date was a primary focus of the IJ’s questioning of Zheng. And a
very curious thing occurred: neither Zheng’s former counsel, the Government, nor the IJ made
the slightest reference to the Notice to Appear. Most importantly, the IJ’s decision finding
Zheng’s application to be untimely also makes no mention of the Notice to Appear, but rests
solely upon Zheng’s inability to proffer any travel documents that might demonstrate the date
upon which he entered the United States. Thus, in the face of a record that contained an
undisputed statement by a Government agent that Zheng had entered the United States “on or
about December 15, 2004,” the IJ concluded that Zheng’s testimony concerning his date of entry
“is unsupported by anything in the record of proceedings.”
“Aliens, of course, are entitled to due process.” Burger v. Gonzales, 498 F.3d 131, 134
(2d Cir. 2007). “In the removal context, that means that an alien who has ‘passed through our
gates, even illegally, may be expelled only after proceedings conforming to traditional standards
of fairness.’” Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (quoting Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206, 212 (1953)). In Lin v. U.S. Dep’t of Justice, 453 F.3d 99 (2d
Cir. 2006), a petitioner for asylum argued that an IJ’s determination that her asylum application
was untimely was made in a manner so arbitrary as to amount to a violation of due process. We
“assum[ed] arguendo that an IJ’s egregious disregard of applicable standards or procedures in
making [such a determination] might acquire constitutional dimension.” Id. at 104. We held,
however, that this was “a determination we need not, and hence do not, make” because “we
[could not] say that the IJ’s determination that [the petitioner] failed to prove her date of entry by
clear and convincing evidence was arbitrary or denied [the petitioner] a full and fair opportunity
14
to present her claims.” Id. (citation and internal quotation marks omitted). We now hold that
where, as here, the record contains a Notice to Appear, signed by a Government agent, which sets
forth a date upon which the petitioner entered the United States, an IJ’s complete disregard of the
document when making a determination as to the timeliness of the petitioner’s application for
asylum amounts to an act of arbitrariness violative of due process. We do not hold that a Notice
to Appear by itself necessarily amounts to clear and convincing evidence of the date of a
petitioner’s entry into the United States. Rather, we hold that the failure of an IJ to give any
consideration to such an undeniably probative piece of evidence amounts to a denial of the
traditional standards of fairness that due process demands. We therefore vacate the IJ’s decision
and remand to the agency for reconsideration of the timeliness of Zheng’s application.5
B. The IJ’s Finding That Zheng Was Not Credible.
As described above, the IJ held that, besides the untimeliness of his application, Zheng’s
claim for asylum should be denied because he comprehensively failed to testify credibly in
5
The Government makes two arguments against this result, neither of which we find
convincing. First, it argues that Zheng has waived the issue of the timeliness of his application
on this appeal because he neglected to raise the issue before the BIA. Government’s May 15,
2008 Rule 28(j) Letter. We acknowledge that, although the BIA lacks the authority to rule on
constitutional issues, a petitioner may be charged with asserting an issue with possible
constitutional implications before the BIA if it is possible that the issue may have been resolved
on non-constitutional grounds. See Theodoropoulos v. INS, 358 F.3d 162, 172 (2d Cir. 2004).
Even assuming this might be the case here, however, Zheng’s brief to the BIA, although less than
artfully drafted by his former counsel, does argue that “the entry date to the US is undisputed”
based upon the Notice to Appear, and that “[t]herefore the one-year time bar should not be an
issue in the case.” Petitioner’s BIA Brief at 7. Second, the Government contends that Zheng
“cannot point to the alleged date of entry on the Notice to Appear and his admission regarding
the date as proof that he met the one-year filing deadline. That allegation and his admission
pertained to the question of whether he was inadmissible.” Government’s Brief at 21-22. But
the Government provides no authority for the counterintuitive proposition that the date of entry
set forth in a Notice to Appear cannot serve as corroborative evidence in support of a alien’s
claim that his asylum application was timely filed. We therefore cannot credit this argument.
15
support of his claim. Specifically, the IJ stated that he did not:
find the respondents claim to be plausible or believable . . . . The
Court [] also found that the respondents presentations appear to be
inconsistent, contradictory both with his direct testimony offered to
the Court as well as explanations that he attempted to provide with
questions that contained inconsistencies or problems, problems of
coherency and plausibility with his claim. It gave the Court the
impression certainly with regard to the respondents demeanor that
he was making up some of his testimony, particularly with regard
to medical evidence that was available, was not available to
corroborate his claim.
We are very much aware that this Court must afford “particular deference to an IJ’s
credibility finding.” Biao Yang v. Gonzales, 496 F.3d 268, 271 (2d Cir. 2007) (internal
quotation marks omitted). Such deference has its limits, however. Specifically, an IJ’s
credibility finding must be based on “specific, cogent” reasons that bear a “legitimate nexus” to
the credibility of the applicant’s claim of persecution. Secaida-Rosales v. INS, 331 F.3d 297,
307 (2d Cir. 2003) (internal quotation marks omitted).6 We conclude that the IJ’s finding that
Zheng had not testified credibly in support of his asylum claim is not entitled to deference
because, in two crucial respects, the matters upon which the IJ found Zheng to be unworthy of
belief bear no legitimate nexus to his claim that he faces persecution should he be returned to
China.
We first consider the IJ’s statement that Zheng “asserted that he was only being sought
for violating a local family planning problem and that it was localized concerning his particular
problem. Well that seems to be contradictory to the respondents assertion that the government of
6
In Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008), we recognized that the
Real ID Act abrogated in part our holding in Secaida-Rosales for cases filed after May 11, 2005,
the effective date of the Act. Id. Because Zheng’s application was filed before this date,
Secaida-Rosales is fully applicable to his application for asylum.
16
China wishes to do him harm or persecute him if he’s forced to return . . . .” Calling Zheng’s
claim “contradictory” upon such grounds is problematic as a matter of logic; and it is plainly
unacceptable as a matter of law. It is simply not the case that an applicant for asylum may be
denied relief if his claim focuses upon persecution at the hands of local, as opposed to national,
political authorities. The statutory definition of a “refugee” extends the possibility of asylum to
any person who suffers “persecution” on account of a protected ground. 8 U.S.C. § 1101(a)(42).
This language does not establish that the persecution must be at the hands of national authorities.
An asylum applicant who demonstrates the possibility that he will suffer because of the actions
of local authorities clearly can qualify for asylum. See, e.g., Passi v. Mukasey, 535 F.3d 98, 103
(2d Cir. 2008) (finding that BIA “improperly inferred” that petitioner was not eligible for asylum
“because its inference was based entirely on a country report that details general improvements,”
but also indicates that petitioner’s hometown “is still troubled by ethnic and political conflict”);
Li v. U.S. Atty. Gen., 488 F.3d 1371, 1375-76 (11th Cir. 2007) (finding that BIA was wrong to
fault petitioner for failing to prove the state of Chinese family planning law where petitioner “did
not argue that China had passed a new national law requiring sterilization; she argued that local
officials had begun a campaign of extra-legal persecution of women with two children”);
Hengan v. INS, 79 F.3d 60, 62 (7th Cir. 1996) (that petitioner did not assert persecution at the
hands of Romanian government was irrelevant where petitioner’s claim was “that the national
government is unwilling or unable to control local persecutors”). Thus, the purported
contradiction arising from the fact that Zheng’s claim focuses upon local, not national,
persecution is an improper ground for finding that Zheng did not testify credibly with respect to
17
the question of whether he faces persecution should he be returned to China.7
We reach the same conclusion with respect to the IJ’s conclusion to the effect that when
Zheng testified to a desire to have more children “it’s not plausible and not believable given that
she still remains in the People’s Republic of China, able to have children and has not been
sterilized and the respondent himself had never attempted to have additional children during a
five year-period thereafter.” But the question of whether or not Zheng truthfully expressed a
desire to have additional children simply bears no relation to the questions of whether he faced
persecution in China because of his past opposition to family planning policies and whether he
would face persecution because of this opposition should he be returned there. In fact, we do not
see that the IJ made any pellucid finding with respect to whether or not Zheng testified credibly
with respect to this past opposition. This is not merely an oversight, but a serious error in light of
the fact that if the IJ had found that Zheng had suffered persecution in the past, a well-founded
fear of future persecution would have been presumed. See 8 C.F.R. 1208.13(b)(1).
In sum, we find that the IJ’s adverse credibility finding was improper because of its heavy
reliance upon two improper considerations: (1) its false assumption that Zheng was required to
prove that he faced persecution at the hands of Chinese national authorities and (2) its attention
7
We are aware that a petitioner may be denied relief where the evidence demonstrates
that he or she “could avoid a future threat to his or her life or freedom by relocating to another
part of the proposed country of removal [where] it would be reasonable to expect the applicant to
do so.” 8 C.F.R. § 1208.16(b)(1)(i)(B); see also Steevenez v. Gonzales, 476 F.3d 114, 117-18
(2d Cir. 2007). We assume this is why the IJ asked Zheng about his wife’s ability to join him in
his alleged internal exile. But a finding that relocation is an appropriate disposition of a
petitioner’s claim properly involves consideration of “whether the applicant would face other
serious harm in the place of suggested relocation; any ongoing civil strife within the country;
administrative, economic, or judicial infrastructure; geographical limitations; and social and
cultural constraints, such as age, gender, health, and social and familial ties.” 8 C.F.R. §
1208.13(b)(3). We do not perceive that the IJ’s decision undertakes a substantial consideration
of any of these factors.
18
to the irrelevant issue of whether or not Zheng had truthfully expressed a desire to father
additional children.8 We therefore hold that the adverse credibility finding amounts to an
exercise of “caprice.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled in part
on other grounds by Shi Liang Lin v. U.S, Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en
banc). We accordingly remand to the agency for a reevaluation of the credibility finding because
we cannot say with confidence that the agency would reach the same result upon a
reconsideration devoid of the errors identified above. See Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 107 (2d Cir. 2006).
C. Zheng’s Claims for Withholding of Removal and Relief Under CAT.
The IJ found that Zheng’s failure to testify credibly as to his claim for asylum necessarily
defeated his claims for Withholding of Removal and for relief under CAT. Because we have
found that the IJ’s adverse credibility finding was improper, we vacate the IJ’s denial of these
claims and remand to the agency for reconsideration. See Paul v. Gonzales, 444 F.3d 148, 156
(2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
CONCLUSION
We GRANT the petition for review, VACATE the decision of the BIA denying Zheng’s
claims for asylum, withholding of removal, and CAT relief, and REMAND the case for further
proceedings consistent with this opinion.
8
The IJ also noted that Zheng had failed to corroborate his testimony because he did not
produce a copy of local family planning records or any of his wife’s medical records. The IJ also
noted that Zheng’s assertion that his wife had been forcibly implanted with an IUD after her
abortion was not mentioned in his wife’s letter. While these failures of corroboration are
relevant to a credibility determination, they alone cannot serve to establish that the petitioner did
not testify credibly. See Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000).
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