Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-25-2004
Guo v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-2972
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PRECEDENTIAL Peter D. Keisler
Assistant Attorney General, Civil
UNITED STATES Division
COURT OF APPEALS Mark C. Walters
FOR THE THIRD CIRCUIT Assistant Director
Theordore C. Hirt, Esquire (Argued)
Douglas E. Ginsburg, Esquire
No. 03-2972 John D. Williams, Esquire
John M . McAdams, Jr., Esquire
Department of Justice Civil Division
JIAN LIAN GUO, Office of Immigration Litigation
P.O. Box 878
Petitioner Ben Franklin Station
Washington, DC 20044
v.
Attorneys for Respondent
JOHN ASHCROFT, Attorney General of
the United States
OPINION OF THE COURT
Respondent
AM BRO, Circuit Judge
On Petition for Review of a Final Order
Jian Lian Guo seeks review of the
of the Board of Immigration Appeals
order of the Board of Immigration Appeals
(No. A77-297-574)
(“Board”) denying her motion to reopen
her immigration proceedings. Because we
conclude that the Board failed to
Argued June 29, 2004
substantiate its decision and impermissibly
relied on a prior adverse credibility
Before: AMBRO, ALDISERT and
determination unrelated to Guo’s petition
STAPLETON, Circuit Judges
for asylum, we grant the petition for
r e vie w a nd r em a nd f or f ur th er
(Opinion filed: October 25, 2004)
proceedings.
Theodore N. Cox, Esquire I. Factual and Procedural History
Joshua Bardavid, Esquire (Argued)
Guo is a native and citizen of
401 Broadway, Suite 701
China. She entered the United States
New York, NY 10013
without valid entry documentation on
January 3, 2000. On January 21, 2000, the
Attorney for Petitioner
Immigration and Naturalization Service
(“INS”)1 charged her with removability Sunday school; she allegedly evaded arrest
based on § 212(a)(7)(A)(i)(I) of the and fled the country. Guo further claimed
Immigration and Nationality Act (“INA”), to have left behind in China her first
8 U.S.C. § 1182(a)(7)(A)(i)(I). At a husband, whom she had married in 1999
master calendar hearing on March 23, and whose whereabouts she did not know.
2000, Guo conceded removability. The
same day she filed an application for
On August 2, 2000, an Immigration
asylum based on religious persecution and
Judge (“IJ”) denied Guo’s application for
requested withholding of removal under
asylum. The IJ found that Guo was not
INA § 241(b), 8 U.S.C. §1231(b), and
credible. He concluded that her story was
Article III of the United Nations
fabricated and, even if true, would not
Convention Against Torture.2
merit asylum. He also doubted Guo’s
Guo initially justified her professed ignorance of her first husband’s
application for asylum on the basis of location and speculated that he was in the
religious persecution. She stated that she United States. He therefore denied her
had joined an “underground church” in application for asylum. Guo appealed, and
China in 1996 and was baptized in July on October 29, 2002, the Board affirmed
1997. In December 1999, government without issuing a separate opinion.
officials purportedly sought to arrest her at
On January 21, 2003, Guo filed a
a church meeting where she was teaching
motion to reopen the immigration
proceedings base d on intervening
1
developments. In March 2001, she
On March 1, 2003, the INS ceased to married Li Kang Chan in New York. On
exist as an agency within the Department January 15, 2002, their first child was born
of Justice and the INS’s functions were in Manhattan. Later that year, Guo
transferred to the Department of Homeland discovered that she was again pregnant. 3
Security. See Homeland Security Act of She thus claimed that she was entitled to
2002, Pub. L. No. 107-296, §§ 441, 451 & asylum based on China’s one-child family
471, 116 Stat. 2135. The Board remains planning policy; she feared that if she
within the U.S. Department of Justice. returned to China she would be subject to
2 China’s forcible sterilization policy and
The United Nations Convention
other penalties. In support of her motion
Against Torture and Other Cruel, Inhuman
to reopen, Guo submitted a previous Board
or Degrading Treatment or Punishment,
decision granting reopening for a Chinese
Dec. 10, 1984, 1465 U.N.T.S. 85,
applicant with two United States-born
implemented in the United States by the
Foreign Affairs Reform and Restructuring
Act of 1998, Pub. L. No. 105-277, § 2242,
3
112 Stat. 2681-761 (codified at 8 U.S.C. § The child was born on July 24, 2003,
1231). after the Board issued its decision.
2
children, a new application for asylum, her fear of persecution on account of race,
marriage certificate, the birth certificate of religion, nationality, membership in a
her first child, a letter from her obstetrician particular social group, or political
describing her pregnancy, and an affidavit opinion.” INA § 101(a)(42)(A), 8 U.S.C.
by retired demographer John Shields Aird, § 1101(a)(42)(A). Forced abortion and
Ph.D. forced sterilization constitute persecution
“on account of political opinion.” INA
The Board denied the motion to
§ 101(a)(42), 8 U.S.C. § 1101(a)(42). An
reopen on June 16, 2003, explaining that
individual with a well-founded fear that
Guo had “failed to meaningfully address
she will be forced to undergo a coercive
the negative credibility determinations
population control procedure of this sort or
noted in the Immigration Judge’s
be subject to persecution for failure to do
decision.” The Board’s opinion stated that
so has a well founded fear of persecution.
even if it “were to find her claim credible,
Id.
she has not established a ‘well-founded
fear’ that a reasonable person in her An applicant bears the burden of
circumstances would fear persecution” on proving eligibility for asylum based on
a protected basis. It concluded that the specific facts and credible testimony. 8
evidence she had presented was C.F.R. § 208.13(a); Abdille v. Ashcroft,
insufficient to establish that “officials 242 F.3d 477, 482 (3d Cir. 2001). In order
punish returning Chinese nationals who to demonstrate a well-founded fear of
are pregnant, have given birth to children persecution, an applicant must satisfy three
in foreign countries, or prohibit them from requirements: (1) he or she has a fear of
having more children upon their return.” persecution in his or her native country;
(2) there is a reasonable possibility that he
The Board had jurisdiction over
or she will be persecuted upon return to
Guo’s motion to reopen under 8 C.F.R.
that country; and (3) the applicant is
§ 1003.2(c). We have jurisdiction over her
unwilling to return to that country as a
timely petition for review pursuant to 8
result of his or her fear. 8 C.F.R. §
U.S.C. § 1252.
208.13(b)(2)(i).4
Discussion
I. Overview of the statutory framework 4
The eligibility threshold for
Section 208(b) of the INA, 8 U.S.C. withholding of removal is even higher: the
§ 1158(b), confers on the Attorney General Attorney General must determine that
discretion to grant asylum to an alien who repatriation will more likely than not
is a “refugee.” An individual qualifies as jeopardize the alien’s life or freedom on
a refugee if he or she is “unable or account of one of the protected grounds.
unwilling” to return to his or her country INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).
“because of persecution or a well-founded The applicant must therefore demonstrate
a “clear probability” of persecution.
3
Board determinations are upheld if petitions for rehearing and
they are “supported by reasonable, motions for a new trial on
substantial, and probative evidence on the the basis of newly
record considered as a whole.” INS v. discovered evidence. This is
Elias-Zacarias, 502 U.S. 478, 481 (1992) e s p e c i a l l y tr ue i n a
(quoting 8 U.S.C. § 1105a(a)(4)). We will deportation proceeding,
reverse only if “the evidence not only where, as a general matter,
supports [a contrary] conclusion, but every delay works to the
compels it.” Id. at 481 n.1 (emphasis advantage of the deportable
omitted). A d v e r s e c r e d ib i l i t y alien who wishes merely to
determinations are factual matters and also remain in the United States.
are reviewed for substantial evidence.
INS v. Doherty, 502 U.S. 314, 323 (1992)
Balasubramanrim v. INS, 143 F.3d 157,
(citations omitted). In light of these
161 (3d Cir. 1998). They likewise will be
considerations, our review is highly
upheld unless “any reasonable adjudicator
deferential: we review the denial of a
would be compelled to conclude to the
motion to reopen for abuse of discretion.
contrary.” 8 U.S.C. § 1252(b)(4)(B).
Id. at 323. “Discretionary decisions of the
In this case, we are asked to review [Board] will not be disturbed unless they
the Board’s denial of Guo’s motion to are found to be arbitrary, irrational, or
reopen. As a general rule, motions to contrary to law.” Tipu v. INS, 20 F.3d 580,
reopen are granted only under compelling 582 (3d Cir. 1994) (quotation omitted).
circumstances. The Supreme Court has
II. Application to Guo
explained:
Guo makes two principal
The granting of a motion to
arguments. First, she argues that the
reopen is . . .
Board erred in considering the IJ’s adverse
discretionary. . . . [T]he
credibility determination, which was based
Attorney General has ‘broad
on facts unrelated to China’s family
discretion’ to grant or deny
planning policies. Second, Guo suggests
such motions. Motions for
that the documents she submitted are
reopening of immigration
adequate to establish prima facie eligibility
proceedings are disfavored
for asylum—a reasonable likelihood that
for the same reasons as are
she would prevail on the merits if a motion
to reopen were granted—and she contends
that the Board erroneously held her to a
Senathirajah v. INS, 157 F.3d 210, 215 (3d higher standard. We agree with her on
Cir. 1998). Given this higher standard, an both counts.
applicant who does not qualify for asylum
A. Adve r s e c redib ility
also does not qualify for withholding of
determination
removal.
4
In reviewing Guo’s initial petition irrebuttably presumed to be false. But case
for asylum, the IJ deemed her testimony law does not support that once an applicant
not credible. The Board relied on that is deemed uncredible, she is excluded from
adverse credibility determination in making further, unrelated asylum claims.5
evaluating her motion to reopen. Because Nor does one adverse credibility finding
the basis for the IJ’s credibility assessment beget another. On the contrary, an IJ must
was utterly unrelated to Guo’s later claim, justify each adverse credibility finding
the Board erred by taking it into with statements or record evidence
consideration. specifically related to the issue under
consideration. We have emphasized that
Guo does not dispute that the IJ’s
adverse credibility findings are afforded
credibility determinations were supported
deference only if they are “supported by
by the record. Indeed, she would be hard
specific cogent reasons.” Gao v. Ashcroft,
pressed to argue otherwise. The IJ’s ruling
299 F.3d 266, 276 (3d Cir. 2002). Those
contained seven distinct references to her
reasons “must be substantial and bear a
lack of credibility. The adverse credibility
legitimate nexus to the finding.” Id.
findings were directly related to the central
events upon which Guo’s asylum claim Moreover, we are unable to imagine
initially was based: her alleged religious a sufficient nexus between Guo’s suspect
persecution. testimony concerning her alleged religious
persecution and the Board’s conclusion
The legitimacy of an initial
about China’s family planning policy. The
credibility determination does not,
Government’s efforts to identify a
however, justify denial of all subsequent
applications for asylum. No one has
explained how the IJ’s adverse credibility
findings implicated Guo’s motion to
reopen on a ground not previously dealt
with by the IJ. Guo’s credibility (or lack 5
8 U.S.C. § 1158(d)(6) provides that an
thereof) for religious persecution simply is
alien adjudged by the Attorney General to
not relevant to her motion to reopen in this
have made a “frivolous application for
case, which relied principally on the fact
asylum,” as defined in the statute, will be
of her second pregnancy in contravention
permanently barred from entering the
of China’s one-child policy and on China’s
United States. There was no such finding
practice of persecuting those who violate
in this case. The protections afforded to
the policy.
the alien under this provision, as well as
The Government’s argument its relatively infrequent application,
reduces to a bad-faith theory of asylum indicate that Congress did not intend to
law: once credibility is tarnished, all preclude an alien from reopening asylum
successive asylum applications are proceedings based solely on a prior
adverse credibility determination.
5
sufficient connection are unpersuasive.6 Board itself in decisions discussed in the
And indeed our Court (albeit in non- next section, disconnect adverse credibility
precedential opinions), as well as the from China’s family planning policy. See,
e.g., Cai v. Ashcroft, 63 Fed. Appx. 625,
2003 WL 1972020 (3d Cir. Apr. 29, 2003)
6 (remanding to the Board for
For example, the Government contends
reconsideration of a denial of asylum
that Guo’s credibility determination is
based on China’s family planning policy
relevant because it implicated her
where the petitioner, whom the IJ found
purported “family situation.” Namely,
lacked credibility, had two children at the
“[t]he Immigration Judge was entirely
time of filing and four at the time of her
unconvinced by Guo’s description of the
motion for reconsideration); cf. Lin v. INS,
status of her [first] husband, Yung Chu
78 Fed. Appx. 784, 2003 WL 22454477
Li.” To be sure, we find this aspect of
(2d Cir. Oct. 29, 2003) (reversing Board’s
Guo’s story troublesome. Guo has not
denial of a motion to reopen, based on
indicated that she and her first husband
adverse credibility finding, in light of a
were divorced, and yet subsequent to her
new translation of a sterilization certificate
initial hearing she married Li Kang Chan
and an affidavit by Mr. Aird).
in the United States and had two children
with him. But the Government has failed B . Well-founded fear of
to explain how Guo’s questionable marital persecution
status is relevant to her asylum claim. She
Because we conclude that the Board
is not seeking lawful immigration status
was not entitled to rely on the IJ’s prior,
based on her marriage to Li Kang Chan.
unrelated adverse credibility determination
And it is not disputed that Guo has two
in denying Guo’s motion to reopen, we
children. Neither the identity of the
evaluate the alternative basis for its
children’s father nor his relationship to
holding. The Board “note[d] that, even if
Guo has any bearing on her claim.
[it] were to find her claim credible, she has
Similarly, b ecause the IJ suspected
not established a ‘well-founded fear’ that
that Guo “is here for different reasons
a reasonable person in her circumstances
rather than because of religion,” the
would fear persecution” within the
Government argues that the adverse
meaning of the statute. Our review of this
credibility finding stemmed from his
argument has two parts. We consider
suspicion that Guo’s true motivation for
whether the Board applied the correct
seeking asylum was to remain in the
standard in assessing whether Guo
United States. This is simply speculative.
presented sufficient evidence, and we
Moreover, we are unaware of any case that
determine whether the Board abused its
holds that an applicant will be denied
discretion in deeming the evidence
asylum simply because building a better
insufficient.
life in America was a motivation for
leaving her country.
6
A motion to reopen must establish Having concluded that the Board
prima facie eligibility for asylum. Sevoian held Guo to an excessively rigorous
v. Ashcroft, 290 F.3d 166, 173, 173 n.5 (3d standard, we might ordinarily remand for
Cir. 2002); Reyes v. INS, 673 F.2d 1087, application of the proper standard. But in
1089 (9th Cir. 1982). In Sevoian, we this case, we conclude as a matter of law
explained that “the prima facie case that the evidence submitted by Guo in
standard for a motion to reopen . . . support of her motion to reopen constitutes
requires the applicant to produce objective prima facie evidence.8 While we cannot
e v i d e n c e show ing a ‘re asona ble
likelihood’ that he can establish [that he is
entitled to relief].” 7 Id. at 175. The Board, 8
In Sevoian, we wrote that there are
however, in its denial of Guo’s motion to
reconsider, stated that she must proceed to
three principal grounds on
end-game and “establish that there is a
which . . . the Board may
pattern or practice [of enforcing the family
deny a motion to reopen
planning policy against Chinese nationals
immigration proceedings.
with foreign-born children] in her
First, it may hold that the
homeland” (emphasis added). In this
movant has failed to
context, “establish” means the evidence
establish a prima facie case
for asylum outweighs the evidence against.
for the relief sought . . . .
A “reasonable likelihood” means merely
Second, it may hold that the
showing a realistic chance that the
movant has failed to
petitioner can at a later time establish that
i n t ro d u c e p r e v i o u s ly
asylum should be granted. The distinction
u n a v a i la b l e , mate rial
may at first appear to be subtle shading,
evidence that justifies
but without it “prima facie” (meaning at
reopening . . . . Third, in
first sight) would lack meaning. Guo
cases in which the ultimate
argues that the evidence she submitted,
grant of relief being sought
even if initially insufficient to establish
is discretionary (asylum . . .
eligibility for asylum, at least satisfied the
but not withholding of
prima facie evidence requirement.
deportation), the Board can
leap ahead over the two
threshold concerns (prima
7
Prima facie scrutiny entails f a c ie c a s e a n d n e w
consideration of “the evidence that e v i d e n c e /r e a s o n a b le
accompanies the motion as well as explanation) and simply
relevant evidence that may exist in the determine that even if they
record of the prior hearing, in light of the were met, the movant would
applicable statutory requirements for not be entitled to the
relief.” Id. at 173. discretionary grant of relief.
7
yet say that Guo is entitled to asylum, we Second, the applicant must support
are persuaded that she at least deserves a the objective reasonableness of her fear.
hearing. “Determination of an objectively
reasonable possibility requires ascertaining
Thus in the following discussion we
whether a reasonable person in the alien’s
do not reach the merits of Guo’s claim.
circumstances would fear persecution if
But we do explain the relevant tests under
returned to the country in question.”
applicable case law in support of our
Zubeda, 333 F.3d at 469 (citing Chang v.
conclusion that Guo has shown a realistic
INS, 119 F.3d 1055, 1065 (3d Cir. 1997)).
chance of success on remand.
While it is unclear precisely how likely
Whether fear of persecution is well- persecution must be to render an
founded turns, as a practical matter, on two applicant’s fear of future persecution well-
inquiries. First, an applicant must show a founded, “[o]ne can certainly have a well
subjective fear of persecution. She may founded fear of an event happening when
satisfy this prong by a showing that her there is less than a 50% chance of the
fear is genuine to her. Zubeda v. Ashcroft, occurrence taking place.” INS v. Cardoza-
333 F.3d 463, 469 (3d Cir. 2003). A Fonseca, 480 U.S. 421, 431 (1987).
primary means of showing that fear is
Guo’s principal evidence regarding
genuine is with credible testimony. Guo’s
China’s enforcement of its one-child
statement that accompanied her motion to
policy with respect to foreign-born
reopen mentions that she “cannot go back
children was an affidavit of John Aird, a
to China” because, “[i]f I was sent back to
former “specialist on demographic
China, I will be forcibly aborted. If I was
developments and population policy in . . .
sent back after I delivered the second
China.” The affidavit states that Chinese
child, either my husband or I will be
couples returning home with unauthorized
sterilized by [the] Chinese government
children “cannot expect to be exempt”
because we violated [its] family planning
from the family planning policy because
policy.” This statement reveals that there
is a reasonable likelihood she will give to ignore their violations
credible testimony that her fear is genuine. would tend to undermine the
enforcement of the rules in
China. The Chin ese
authorities cannot afford to
Id. at 169-170 (citations and quotations
let rumors get out that
omitted). In this case, the Board gave no
couples of childbearing age
indication that it was basing its decision on
can evade the one-child
either the second or third ground for
limit by leaving the country
denying a motion to reopen. Furthermore,
illegally, having
we know of no reason why Guo’s motion
unauthorized children in
to reopen should be denied on either of
f or e ign countries and
those grounds.
8
r e t u rn i n g h o m e Aird criticizes the 1998 Profile’s
without suffering the reliance on “anecdotal” evidence. He
standard penalties. points to other sources, such as newspaper
articles, which indicate that the one-child
Aird thus opines that “the concerns of
policy is indeed enforced against couples
Chinese couples over what awaits them if
with unauthorized foreign-born children.
they are repatriated with children born
He provides two specific examples of the
abroad without official permission are
application of the policy to Chinese
probably in most cases well-founded.”
couples returning from abroad. In
The affidavit cites seven sources. addition, he emphasizes the interest of the
Much of Aird’s affidavit is devoted to Chinese government in giving our State
discrediting one of them, the State De pa r tme nt “ a d ecep tively mil d
Department’s April 1998 Profile of impression” of China’s policies. We
Asylum Claims and Country Conditions conclude that where a motion to reopen is
for China (“1998 Profile”). That accompanied by substantial support of the
document reports that China’s one-child character provided by the Aird affidavit,
fam ily planning policy varies in the Government’s introduction of a five-
implementation and that Fujian Province, year-old State Department report, without
where Guo lived, is “lax” in its more, hardly undermines Guo’s prima
enforcement of the policy (in some cases facie showing. Cf. Berishaj v. Ashcroft,
permitting parents to apply after several 378 F.3d 314 (3d Cir. 2004).
years to conceive a second child if their
Moreover, we agree with Guo that
first child is female). In fact, the 1998
the 1998 Profile, to the extent it is reliable,
Profile suggests that enforcement of the
actually may buttress her prima facie case.
policy is applied so “loosely” in Fujian
The 1998 Profile states that the central
Province—exceptions to the one-child
Chinese government
policy “are becoming the norm” in rural
areas—that the province has been does not authorize physical
criticized in the official press. More force to make people submit
importantly, the 1998 Profile discusses the to abortion or sterilization,
application of the one-child policy to but there are reports that this
couples with foreign-born children and continues to occur in some
c o n c l u d e s , b a s e d o n “ a n e c dota l r u r a l a r e a s a s lo c a l
information,” that “the relevant authorities population authorities strive
do not always handle such situations to meet population targets.
strictly. At least some couples that have Chinese officials
children in the United States beyond the acknowledge privately that
nominal limits and then return to China f o r c e d a b o r t io n s a n d
are, at worst, given modest fines.” sterilizations still occur in
areas where family planning
9
personnel may be subsequent to initial asylum proceedings.
uneducated and ill- See, e.g., In re X-G-W-, 22 I. & N. Dec. 71
trained. (BIA 1998) (reopening proceedings based
on Congress’s 1996 amendment of the
Moreover, the Board’s analysis failed to
statutory term “refugee” to include a
account for differences in enforcement
person persecuted through coercive
based on an immigrant’s legal status in the
population control measures), superseded
United States. The 1998 Profile references
on other grounds by In re G-C-L-, 23 I. &
anecdotal evidence to the effect that
N. Dec. 359 (BIA 2002); In re Lu, No. A
“possession or lack of possession of U.S.
70 100 687 (BIA March 10, 2000) (Aird
permanent resident status is the key
affidavit “establishe[s] prima facie
criterion for determining whether couples
eligibility for relief”); In re Qing Zhang,
are subject to family planning restrictions.”
No. A 73 148 366 (BIA Nov. 15, 2001)
It is true, as the Government (granting motion to reopen based on
contends, that the Aird affidavit does not statement by the applicant); In re Weng,
demonstrate that any “specific proportion No. A75 990 618 (BIA July 18, 2003)
or percentage” of couples returning to (granting motion to reopen under similar
China will be subject to its family- circumstances); In re Zhang and Huang,
planning policy, nor does Aird contest that No. A77 551 826 (BIA July 16, 2003)
variations occur in enforcement. But that (sustaining petitioner’s appeal of IJ’s
is not Guo’s burden. While some couples de nia l of asylum under simila r
in Guo’s situation might avoid serious circumstances).
repercussions upon returning to China, the
These decisions overwhelmingly
conflicting evidence suggests at least a
deem allegations like Guo’s sufficient to
reasonable likelihood that Guo will
establish prima facie eligibility for asylum.
establish a reasonable fear of persecution.
And while the Government argues that
What makes the Board’s decision Guo’s case is distinguishable “given the
particularly suspect in this case is its paucity of facts alleged in her motion to
failure to comport with its own prior reopen,” applicants in many prior cases did
decisions, many of which reach the not cite more specific evidence than did
opposite conclusions under similar Guo. Furthermore, some submitted less
circumstances. “[A]pplication of agency than Guo. We thus conclude that the
standards in a plainly inconsistent manner Board erred in finding that Guo presented
across similar situations evinces such a insufficient evidence to establish her
lack of rationality as to be arbitrary and prima facie case.
capricious.” Zhao v. U.S. Dep’t of Justice,
Conclusion
265 F.3d 83, 95 (2d Cir. 2001). The
Board on many occasions has granted The Board’s cursory rejection of
motions to reopen based on children born Guo’s motion to reopen was improper. It
10
failed to explain how the IJ’s adverse
credibility finding bears any relation to
Guo’s claim, based on physician-verified
evidence of pregnancy and a third-party
affidavit, that she feared persecution
relating to China’s family planning policy.
Moreover, it seems likely that the Board
applied the wrong standard in evaluating
the motion to reopen. Guo made a prima
facie case: she presented facts showing a
reasonable likelihood that she would
prevail on the merits, particularly in light
of prior Board decisions granting relief
under similar circumstances. We thus
grant Guo’s petition for review and
remand for further proceedings consistent
with this opinion.
11