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Zhang v. Gonzales

April 21, 2005



Before: Alito, McKEE, and Smith, Circuit Judges

The opinion of the court was delivered by: Alito, Circuit Judge

* Substituted pursuant to Federal Rule of Appellate Procedure 43(c)(2).


Argued January 18, 2005

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.*fn1 She argues, among other things, that the 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).


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.*fn2 She alleged that Chinese 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")*fn3 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." App. at 102. 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*fn4 and "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.

App. at 52.

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 ...

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