Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-25-2008
Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1303
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-1303
___________
QIAO MIAO LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A95-862-218
(U.S. Immigration Judge: Annie S. Garcy)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 15, 2008
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
(Filed: November 25, 2008 )
___________
OPINION OF THE COURT
___________
PER CURIAM.
Qiao Miao Liu petitions for review of an order of the Board of Immigration
Appeals (BIA), which sustained the Government’s appeal and reversed the Immigration
Judge’s decision that had granted her asylum. For the reasons that follow, we will grant
the petition and remand for further proceedings.
Liu is a female native of China’s Fujian Province who seeks asylum due to fear of
forced abortion or forced sterilization if she is returned to her home country. After
arriving in the United States, Liu married a Chinese native.1 She and her husband had
two daughters in the United States, one born in 2003 and one born in 2005. A.R. 169.
Liu testified before the Immigration Judge (IJ) that she would face forced sterilization in
China because her daughters were not properly spaced–under Chinese law, she should
have waited five years before giving birth to a second child. A.R. 170. Liu and her
husband also testified that they desired to have more children. A.R. 175, 215, 270. Liu
testified that her mother, mother-in-law, and two aunts had each been forcibly sterilized
after having between one and five children, to enforce China’s population control policy.
A.R. 170-71, A.R. 222-23.
The Immigration Judge granted Liu asylum. She found that Liu’s two U.S. citizen
children would return with her to China if she were deported; that they likely would be
discovered by the authorities; that she and her husband intended to have more children;
and that she had a reasonable and well-founded fear that any attempt to do so would result
in forced abortion or forced sterilization. The IJ based these conclusions both on
1
Liu’s husband was under a final deportation order when they married. He was taken
into custody by immigration authorities during the pendency of Liu’s removal
proceedings and it appears he may have been removed. A.R. 77; 507.
2
governmental reports in the record and on Liu’s testimony concerning her relatives who
had been forcibly sterilized.
The BIA reversed the IJ’s decision and ordered that Liu be removed. It found that
Liu’s fear of forced sterilization was too speculative, basing this conclusion solely on a
2002 State Department Report (released in 2003), which noted that China simply required
payment of a “social compensation” fee by families that exceeded the child allowance,
and that even this policy was only sporadically enforced. A.R. 3. The BIA found that Liu
had failed to meet her burden of proof “in the absence of any additional evidence which
would support her fear.” Id. The BIA did not mention Liu’s testimony about the specific
conditions in her home city and the experiences of her immediate family members. Nor
did the BIA discuss other portions of the record that the IJ found supported Liu’s claims.2
Although this court is generally deferential to decisions of the BIA, agency
determinations must be supported by substantial evidence. See, e.g., Dia v. Ashcroft, 353
F.3d 228, 248 (3d Cir. 2003). In this case, the BIA overturned the IJ’s thoroughly
2
For example, the IJ noted that although a report produced by the Immigration and
Naturalization Service indicated that Chinese scholars who studied abroad, had children
overseas, and then returned to China might be treated in a lenient fashion [A.R. 309],
there was no evidence that someone like Liu, who is not a scholar, would receive similar
lenient treatment. A.R. 88. In fact, the IJ noted that the State Department’s June 2004
profile of Chinese asylum claims stated that “a family with a U.S.-born child or children
receives no special treatment under family planning laws.” A.R. 88, 440. The IJ noted
that the Profile stated that U.S. diplomats in China were unaware of any cases of Chinese
returnees who were forcibly sterilized, but the same Profile also acknowledges “huge
gaps in our knowledge due to China’s size and political culture, communications
limitations, and a frequent lack of cooperation from authorities.” A.R. 88-89, 432, 440.
3
reasoned decision to grant asylum in a general and cursory two-page opinion. A review
of the IJ’s decision and the administrative record reveal that the BIA’s conclusion that Liu
failed to introduce any specific evidence to support her fear of forced sterilization is not
supported by substantial evidence. While the BIA may have had other reasons for
denying Liu’s asylum claim, we are not free to guess what those reasons might be.
The petition for review is granted, and the proceedings remanded to the BIA to
permit the agency to demonstrate that substantial evidence supports the BIA’s decision.
I.N.S. v. Ventura, 537 U.S. 12 (2002). (“. . . the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.”).
In light of the BIA’s failure to acknowledge and discuss the evidence that Liu submitted,
such a remand is necessary.
4