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Xiu Ling Zhang v. Alberto Gonzales, Attorney General of the United States of America

Location: Court of Appeals, Third Circuit


(No. A77-293-449)
Argued January 18, 2005

Before: ALITO, McKEE, and SMITH, Circuit Judges (Opinion filed: April 21, 2005)

Zhang's counsel admitted at oral argument that he did not 2 preserve for appeal a claim under the United Nations Convention Against Torture.

ALITO, Circuit Judge:

Petitioner Xiu Ling Zhang, a native and citizen of the People's Republic of China, petitions for review of an order by the Board of Immigration Appeals ("BIA") denying asylum and withholding of removal. She argues, among other things, that the 2 Immigration Judge ("IJ") failed to reconcile his decision with the documentary evidence she produced. We grant Zhang's petition for review, vacate the order of the BIA, and remand to the BIA for further proceedings consistent with this Court's opinion in Liu v. Ashcroft, 372 F.3d 529 (3d Cir. 2004).

The United Nations Convention Against Torture and Other 3 Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United States by the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761 (codified at 8 U.S.C. § 1231). The Yuan, also known as "RMB," is worth approximately 4 12 cents. There are roughly 8.2 Yuan per dollar, so 3000 Yuan is about $366, and 5000 Yuan is about $608.

In November 1999, Zhang arrived in the United States without a valid immigrant visa. Joint Appendix ("App.") at 190. An asylum officer found that she had a credible fear of persecution if repatriated to the People's Republic of China and issued her a Notice to Appear before an IJ so that she could apply for asylum. Id. In March 2000, Zhang filed an application for asylum, withholding of removal, and relief under Article III of the United Nations Convention Against Torture. She alleged that Chinese 3 family planning authorities had, among other things, subjected her to a forced abortion and demanded that she or her husband be sterilized to prevent any further violations of the country's onechild policy.

At a preliminary hearing on July 13, 2000, Zhang's lawyer gave the IJ and opposing counsel a number of documents to corroborate these claims. See id. at 50-51. The materials included birth certificates for Zhang, her husband, and her three children; Zhang's marriage certificate; a receipt indicating that Zhang was fined 3000 Yuan for removing an intrauterine device ("IUD") 4 without permission and another receipt showing that Zhang was fined 5000 Yuan for "attempt to give birth secretly." Id. at 103-04. The latter receipt was dated March 26, 1996. App. at 104. Zhang also submitted two other potentially important documents. The first was a Birth Control Surgery Certificate from Changle City stating that Zhang "was conducted with a Abortion Operation and IUD installation on March 15[, 1996] at our Clinic." This regulation states, in pertinent part: 5 In any proceeding under this chapter, an official record or entry therein, when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by an officer so authorized. . . . The attested copy, with the additional foreign certificates if any, must be certified by an officer in the Foreign Service of the United States, stationed in the foreign country where the record is kept.

This document is affixed with a seal. The second is a notice addressed to Zhang and her husband from the "Birth Control Office of Shouzhan Town Changle City." As translated, this notice states:

According to the result of our investigation, you gave two over birth boys in somewhere else, which violated the nation's family planning policies severely. Therefore, according to the penalty regulation of the family planning policies, you must pay a fine of thirty-six thousand Yuan within thirty days. [I]n the meantime, one of you must go to the local hospital for the sterilization operation. Otherwise, [we] will be force[d] to complete the sterilization operation, and punish severely as well. pp. at 111-12 (emphasis added). This document is also affixed with a seal.

After Zhang's counsel furnished these documents during the July 13 preliminary hearing, the government's lawyer asked if Zhang's counsel intended to comply with 8 C.F.R. § 287.6 and 5 "have any documents authenticated by the U.S. consulate in China." App. at 51. Zhang's counsel responded that he had no intention to do so at that point. The IJ then interjected:
Bear with me a second. That's one of the more troubling regulations because it's a regulation that imposes a requirement upon people to get things authenticated. The reality, I think, is that it's almost impossible to get that actually done. But there is a requirement. I'll make a decision on that at the time of the hearing. I'm not going to make a decision now.

The IJ, however, never revisited the question whether the documents had been adequately authenticated. The IJ referred to the documents at the outset of his oral opinion, stating: "The Court also has Exhibit 4 which consists of some documents submitted by the respondent to corroborate her claim." See App. at 10. But what the IJ meant when he said that he "ha[d]" the documents is unclear. It is possible that he meant that the documents were part of the official record that was before him, but it is also conceivable that he merely meant that the documents had been submitted and not that he regarded them as part of the record.

At her merits hearing on October 13, 2000, Zhang testified that Chinese family planning officials subjected her to a forced abortion, fitted her with an IUD on three separate occasions, and demanded that she or her husband be sterilized to prevent any future pregnancies. The IJ denied Zhang's petition based entirely on an adverse credibility determination. See App. at 95 ("Ma'am, I didn't believe any of your testimony."). He explained that Zhang's story appeared "scripted" and "unbelievable" because neither the overall story nor certain pieces of it seemed plausible. App. at 12. After mentioning several perceived inconsistencies in Zhang's testimony, the IJ observed that "there is nothing really in the State Department's Profile that would lead us to believe that forced abortions are anything other than a very rare exception."

App. at 17. He continued:
There is evidence that [forced abortions] have occurred but there is also evidence that meteors have landed in the United States. I mean the fact that there's evidence that something happened to someone else doesn't mean that it happened to [Zhang]. There has to be a background of country conditions that form a context and make the story plausible. When someone is going to come in and say th[ey] had a forcible abortion it's not enough to say, "Well, I guess that's possible." I'm going to want some proof that it's more than just possible, that there is a substantial chance that this thing, in fact, happened.
App. at 9 (emphasis added). The IJ concluded that "we basically have a long shot happening here, which is a forced abortion, and we also have very poor testimony. So when you combine the two things together you have no way of succeeding in a case like this." App. at 17-18.

The IJ acknowledged that Zhang's "testimony was quite consistent with her written asylum application," but he never explained why the documents that she submitted did not bolster her credibility. App. at 12. In fact, it is impossible to tell precisely what role - if any - the documents played in the IJ's analysis. The IJ obviously did not take the documents at face value. If authentic and accurate, they powerfully corroborate Zhang's claims. The abortion certificate would show that she had an abortion on or about March 15, 1996. Viewed in conjunction with this certificate, the March 26, 1996, notice fining Zhang for an "attempt to give birth secretly" would give rise to a strong inference that the abortion was involuntary. And of course if Zhang was forced to undergo an abortion, that would mean that she was subjected to past persecution, and she would be entitled to the benefit of a rebuttable presumption that she has a well-founded fear of further persecution if removed to China. See 8 U.S.C. §§ 1101(a)(42)(A) and (B); 8 C.F.R. § 208.16(b). Similarly, the document ordering Zhang or her husband to submit to a sterilization procedure on pain of severe punishment would corroborate Zhang's testimony that the Chinese authorities threatened her with forced sterilization and would bolster her claim that she has a well-founded fear that she would again be threatened with forced sterilization if she were sent back to her native country. Because of the significance that the documents in question would have if they are authentic and accurate, it is obvious that the IJ must have given them reduced weight or no weight at all. Cf. Liu v. Ashcroft, 372 F.3d 529, 532 n.3 (3d Cir. 2004) (discussing an IJ's evidentiary rulings on two abortion certificates that "are ambiguous as to whether he intended to give the certificates 'little weight' or 'no weight.'"). The IJ never explained which of these options he chose or why he did so.

Therefore, all references below to the IJ's opinion should 7 be understood as "the IJ's opinion insofar as it was adopted or relied upon by the BIA."

On appeal, the BIA issued a one-paragraph affirmance. It adopted the IJ's decision and added a single sentence of its own. "In light of the questions raised by the respondent's credibility, the authenticity of the supporting documents that she presented [], and the respondent's failure to adequately explain the lack of corroboration [], the respondent did not meet her burden of proof to establish her eligibility for the reliefs requested." App. at 2.

This Court must review the administrative record on which the final removal order is based. See Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). The "final order" to be reviewed is usually that of the Board of Immigration Appeals, but when the BIA simply states "that it affirms the IJ's decision for the reasons set forth in that decision, . . . the IJ's opinion effectively becomes the BIA's, and, accordingly, a court must review the IJ's decision." Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001) (quoting Chen v. INS, 87 F.3d 5, 7 (1 Cir. 1996) (internal citations st omitted)). Here, to the extent that the BIA adopted the IJ's opinion, we treat that opinion as the opinion of the Board. See 7 Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir. 2003) (reviewing "both the decision of the IJ and the BIA" because the BIA adopted some parts of the IJ's opinion); Abdulai, 239 F.3d at 549 n.2 ("When the BIA defers to an IJ, a reviewing court must, as a matter of logic, review the IJ's decision to assess whether the BIA's decision to defer was appropriate.").

Ordinarily, we will affirm the IJ's decision if it is supported by reasonable, substantial, and probative evidence on the record
considered as a whole. See Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998). This deferential standard dictates that the IJ's findings "must be upheld unless the evidence not only supports a contrary conclusion, but compels it." Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)). However, "remand is appropriate where . . . we have made a legal determination (e.g., regarding the admissibility of evidence) that fundamentally upsets the balancing of facts and evidence upon which an agency's decision is based." Liu v. Ashcroft, 372 F.3d 529, 534 (3d Cir. 2004). See also Leia v. Ashcroft, 393 F.3d 427, 434-35 (3d Cir. 2005); Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000). In Liu, "the improper rejection of unauthenticated abortion certificates by the IJ infected the adverse credibility determination," justifying a remand. Chen v. Ashcroft, 376 F.3d 215, 226 (3d Cir. 2004).

As previously noted, it is possible that the IJ in this case refused to admit the documents in question and thus gave them no weight. It is also possible that the IJ admitted the documents but found that they were entitled to less weight than they would appear to merit if accepted at face value. Without further explanation, however, neither approach can be sustained.

We cannot sustain the exclusion of the documents without an explanation of the basis for the ruling. The IJ may have excluded the documents for failure to comply with 8 C.F.R. § 287.6, which states that "an official record . . . shall be evidenced by an official publication thereof, or by a copy attested by an officer so authorized. . . ." Id. (emphasis added). This regulation adds that "[t]he attested copy, with the additional foreign certificates if any, must be certified by an officer in the Foreign Service of the United States, stationed in the foreign country where the record is kept." Id. Our court, however, recently held that "8 C.F.R. § 287.6 is not an absolute rule of exclusion, and is not the exclusive means of authenticating records before an immigration judge." Liu, 372 F.3d at 533. See also Leia v. Ashcroft, 393 F.3d 427, 434-35 (3d Cir. 2005) (remanding for consideration under Liu where an IJ found that § 287.6 was the exclusive means to Moreover, even if compliance with 8 C.F.R. § 287.6 were 8 mandatory, some explanation for the exclusion of the documents would still be needed because at least some of the documents bear seals. Cf. Georgis v. Ashcroft, 328 F.3d 962, 966 n.3 (7 Cir. th 2003) (faulting an IJ for not addressing whether a submitted copy of a letter is "not already certified" pursuant to § 287.6 because it "appears to be imprinted with an official seal of some sort"). authenticate documents). Accordingly, exclusion of the 8 documents on this ground would be legal error. Because of the real possibility that the IJ excluded the documents in question pursuant to this regulation, we must vacate the order of the BIA and remand for clarification on this point.

It is also possible, as noted, that the IJ did not rely on 8 C.F.R. § 287.6 but found for some other reason or reasons that the documents were not entitled to any appreciable weight. But because the IJ's opinion does not disclose his reasoning on this matter, it is impossible for us to discharge our responsibilty to determine whether, as Zhang contends, the evidence in the record compels the conclusion that she faces a probability of or at least has a well-founded fear of persecution if she is removed to the People's Republic. As noted, the documents at issue, if accepted as genuine and accurate, strongly corroborate Zhang's testimony. Thus, unless they were excluded for some undisclosed procedural reason (the propriety of which we obviously cannot review) or unless they were properly deemed to be unreliable or untrustworthy, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405-06 (3d Cir. 2003), they could compel findings quite different from those that the IJ reached.

Several possible grounds for the IJ's treatment of the documents come to mind. One possibility is that the IJ thought that the cross-examination of Zhang provided a basis for doubting the documents' authenticity. The government attorney asked Zhang why some of the Chinese "notarial certificates" that she had submitted were dated February 25, 2000, which was after she entered the United States. See App. at 89-92. The hearing transcript unhelpfully reports Zhang's answer as: "My (indiscernible) just helped me to obtain it." Id. at 90. The government's lawyer apparently believed that Zhang said that her husband had helped her obtain the notarial certificates, and the lawyer thus began questioning Zhang about her husband, who was in hiding 600 kilometers from Fujian province. When the government lawyer eventually returned to his original question about who helped Zhang acquire the certificates, the transcript records Zhang's answer as follows: "That's my husband did." Id. at 91. Shortly thereafter, when asked again, Zhang replied, "No. It's not my husband himself. I said my husband's dad got them. . . . I never say my husband. I just keep on saying that's my dad -my husband's dad." Id. at 92.

This exchange, as translated from Foo Chow to English, is muddled at best. It is difficult to say that this supposed discrepancy in testimony is enough in itself to impugn the authenticity of the birth certificates in the record. Moreover, even if it did, the abortion certificate and the documents relating to the fine for removal of the IUD and the threat of involuntary sterilization were never directly discredited.

Another possibility, which was discussed at oral argument, is that the IJ relied on a State Department Report, dated April 14, 1998, noting that documentation from certain parts of China, including "documents that purportedly verify . . . birth control measures," "is subject to widespread fabrication and fraud." App. at 166. According to this Report, in the Fujian province in particular, where Zhang lived, "no reliable documents existed to prove relationships." Id. at 166-67. Indeed, the Report notes, when the Consulate General in the region requested in 1993 that officials in Fujian investigate suspected fake documents, 66 of the 109 that were investigated "were determined to be incorrect or fake." App. at 167.

Persuasive as the report might seem, we have previously counseled wariness regarding "wholesale reliance on the Department of State's country reports." Chen v. Ashcroft, 376 F.3d 215, 225-26 (3d Cir. 2004) (citations omitted) (holding that the BIA "erroneously rejected the validity of [two] abortion certificates based on nothing more than the country report"). See also Lin v. INS, 238 F.3d 239, 248 (3d Cir. 2001) (quoting Galina v. INS, 213 F.3d 955, 959 (7 Cir. 2000)). A cautious approach is th justified in this case, where the Report relies on data from 1993, and devotes only a single paragraph to the topic of "documentation." At this juncture, however, it would be unduly speculative for us to address the question whether this country report alone could justify a refusal to give any weight to the documents at issue in this case. Until we know whether and, if so, to what degree the country report figured in the IJ's evaluation of the evidence, consideration of that issue is plainly premature.

For these reasons, we hold that the order of the BIA must be vacated and the case must be remanded. See Liu, 372 F.3d at 534; Abdulai v. Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001) (remanding "[b]ecause the BIA's failure of explanation makes it impossible for us to review its rationale"). The "BIA may proceed on remand as it does with respect to any evidentiary question, evaluating issues of materiality, relevance, probity, and the general requirements of due process." Id. at 534 n.9 (citations omitted). See also Yongo v. INS, 355 F.3d 27, 30-31 (1 Cir. 2004) (enumerating methods of st authentication). If it determines that the documents were excluded, it must explain the basis for exclusion. If it decides that they were admitted, it must square them with the IJ's decision.

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