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Cao v. Attorney General of the United States

May 12, 2005


On Petition for Review of Order of the Board of Immigration Appeals (Board No. A79 309 920)

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


Argued November 18, 2004

Before: ROTH, SMITH, and BECKER, Circuit Judges.


Yun Jun Cao, a Chinese national, petitions for review of the denial by the Board of Immigration Appeals (BIA) of her application for asylum and withholding of removal and for protection under the Convention Against Torture (CAT). Cao claims that, while working as a pediatrician in a Chinese hospital, she discovered that the hospital was committing infanticide in an attempt to comply with China's population control policy. After her letter to a Hong Kong news reporter exposing this practice was intercepted by the Chinese government, she says that she was detained for three months, interrogated, and physically abused. Upon release from prison, Cao fled China and arrived in the United States on a visitor's visa.

Cao's allegations that she was persecuted for exposing and criticizing the practice of infanticide, if credible, would be sufficient to establish a valid asylum claim under the amended 8 U.S.C. § 1101(a)(42)(2005). The Immigration Judge (IJ), however, denied Cao's claim for relief on the basis of an adverse credibility determination. After declaring that Cao's demeanor as a witness was "quite perfect," the IJ discredited virtually every aspect of Cao's testimony. With respect to the infanticide issue, the IJ proceeded on the basis of the notion that there is no real distinction between infanticide and forced abortion, which led her to be incredulous that Cao could be so offended by infanticide when she was already aware of the practice of forced abortion. The IJ made no attempt to anchor this aspect of her credibility finding to the record. Additionally, the IJ found a lack of credibility with respect to a number of other aspects of Cao's testimony, each of which turn out to be either based on speculation or without any support in the record. The IJ thus improperly discredited Cao's testimony in a number of material respects.

The BIA summarily affirmed the IJ's decision without opinion. Thus, we review the IJ's decision alone. Because the IJ's determination does not meet the substantial evidence standard under which the decision must be reviewed, see infra Part II, we will grant Cao's petition for review and remand to the BIA for further proceedings.


Cao attended the Gaungxi Province College of Traditional Chinese Medicine and then practiced as a pediatrician at the Second Affiliated Hospital of Guangxi Province in the city of Nanning. She is married and has a daughter, and both her husband and daughter remain in Nanning at this time. The following is Cao's testimony about the events beginning in 1999.

In that year, after fifteen years of medical practice, Cao discovered that her hospital was killing live born babies who were born in violation of China's population control policy, described in the margin. *fn1 Although she had been aware of China's family planning policy and had previously known that officials would at times force women to have late-term abortions in which the fetus was terminated before exiting the birth canal, Cao did not know that the hospital was committing infanticide until 1999.

Cao realized that the hospital was committing infanticide only after her Pediatrics department moved to the same floor as the Obstetrics/Gynecology (Ob/Gyn) department due to hospital renovations. One day, she noticed a woman crying in the Obstetrics ward and was told that the woman's child had died suddenly after she had given birth. Cao's suspicions were raised because the obstetricians had not consulted with the Pediatrics department. An Ob/Gyn nurse told Cao, "never mind about that, that was business for family planning policy."

After this incident, Cao began to notice other women crying, each of whom claimed her baby had died shortly after birth. She finally confronted Lao Zi Juan, a friend from medical school, who worked in the Ob/Gyn department, about the infant deaths. Lao Zi told her that the mothers did not have family-planning permits, and so, under the hospital rules, nurses would inject newborn babies with alcohol to cause death. Cao claims that she was shocked to learn that the hospital was killing children born alive to comply with the population control policy.

According to Cao, a few months later, at a party in a friend's home, she encountered Suen Yut, a reporter for the Hong Kong magazine, Cheng Ming Monthly. In the course of their conversation, Suen Yut asked Cao if she had heard that infanticide took place at Chinese hospitals. Cao told him what she had witnessed at her hospital. Suen Yut asked Cao to write a detailed account about the practice of infanticide and send it to him so that he could write an article exposing the practice. While hesitant at first because she was worried about losing her job, Cao eventually agreed to send the information to Suen Yut after he assured her that the article could be published anonymously.

Because she was concerned about using the mail for sending such sensitive information, Cao first mailed Suen Yut a test letter, containing nothing controversial. This letter reached him without being intercepted. She then mailed a second letter detailing what she had observed about the practice of infanticide. This letter was sent by registered mail, which required her to give her name. The letter, however, was intercepted by the Chinese authorities and traced back to Cao.

As a result, Cao was arrested at her home in Nanning on April 25, 2000. She says that the authorities then gave her husband a notice of detention, which she submitted in evidence at the proceeding before the IJ. She claims that, after her arrest, she was detained, interrogated, and beaten. The officers presented her with the letter to Suen Yut and she eventually confessed that she had written it. She testified that the interrogations included beatings and electric shocks, and that she continues to have recurring pain in her shoulder, neck, and fingers as a result. At her hearing before the IJ, Cao testified that she thought her interrogators were public security officials, although they were not always in uniform. In her asylum application, Cao had said she was tortured by fellow inmates, at the officer's instigation, but she did not mention this fact in her oral testimony.

Cao was not charged with any crime, but the security officers told her that she could be charged with sedition and sentenced to ten years imprisonment. Cao testified that she was detained for three months and was conditionally released on July 25, 2000. She says that the officials released her so they could use her to lure Suen Yut back to mainland China. On release, she had to post bail and report to public security every week, but she believes that she remained under surveillance. On July 26, 2000, she received notice that her employment with the hospital had been terminated.

After her release, Cao managed to send word to Suen Yut through a friend who was visiting Hong Kong, warning him not to contact her or to come to Nanning. The friend mailed the warning letter from Hong Kong. Suen Yut apparently did not return to mainland China and was not apprehended by Chinese officials.

On October 16, 2000, Cao made her last weekly report to public security. That afternoon, she absconded from Nanning and went to the Shanghai airport, where she bribed a relative of a friend with "30,000" to provide her with an exit permit. *fn2 Though her house had been searched after her arrest and again after her release, the public security officers did not find her passport, which was stored in a safe deposit box at a bank. Cao boarded a plane in Shanghai, and arrived in the United States on a B-1 visa on October 20, 2000. In filling out her temporary visa application, Cao lied about the purpose of her visit to the United States, and falsely stated that she had never been arrested, and that she was still employed at the hospital. Cao admitted these falsehoods at her hearing before the IJ.

Cao was authorized to remain in the United States only as a temporary visitor. After she overstayed her visa, she was interviewed by an asylum officer who referred her claim to an Immigration Judge. On October 26, 2001, Cao was served with a Notice to Appear charging her with removability pursuant to Section 237(a)(1)(B) of the Immigration and Nationality Act. Cao conceded removability and requested asylum, withholding of removal, and protection under the Convention Against Torture.

In addition to testifying to the aforementioned facts, Cao introduced documentary evidence to corroborate her story. She submitted her passport and hospital identification card. She offered a letter from her husband in China to Cao at her address in New Jersey. The letter relates that after Cao escaped to the United States, the public security officers came to Cao's house in China to search for her and "harassed" her husband and daughter, confiscated letters, and threatened them with a gun. When the officers found nothing, her husband said the public security officers "request[ed] me to notify you to return back to China to surrender yourself and accept the punishment by law. Otherwise we would face more serious punishment... if you were arrested or if you were sent back to China some day."

In addition, she offered a document, which she claims was given to her family upon her arrest by the Nanning City National Security Bureau, which states that she was arrested and jailed for "contribut[ing a] reactionary article for overseas publication." Further, Cao introduced her dismissal letter from the Gaungxi College of Traditional Chinese Medicine, which denounced her as being "poisoned by Capitalistic anarchism for [a] long time. She has [an] intimate[] relationship with overseas anti-China forces and post[ed a] contribution... outside of China to make vicious attack against the national basic policy of China."

When asked by the IJ how she received these documents, Cao explained that she had asked her family to send evidence supporting her asylum claim, and that her husband had a friend mail his letter and the other documents from Guangzhou province. Cao testified that she did not retain the envelope, but that the package did not appear to have been opened when she received it in the United States.

Finally, Cao provided a letter, dated July 31, 2001, which she claims is from the reporter Suen Yut at the Cheng Ming Monthly in Hong Kong. The letter states in the first paragraph that

[Cao] suffered arrest, imprisonment and torture because she provided me the news clues, in which she reviewed the fact[] that [the] Chinese government kill[s] infants by medical means in nationality autonomous regions for the purpose of population control. She therefore escaped to your country to avoid further persecution.

The letter goes on to discuss more generally human rights abuses in China and other unrelated instances of China's restriction of free speech and other civil liberties.

The IJ issued a lengthy decision denying Cao's asylum, withholding of removal, and CAT claims on the ground that Cao was not credible. The IJ justified her adverse credibility determination on several purported inconsistencies and implausibilities in Cao's story. Because this credibility determination goes to the heart of Cao's claim on appeal, we will discuss the substance of the IJ's findings below.

Cao appealed to the Board of Immigration Appeals, which affirmed the IJ without opinion pursuant to the streamlining regulations, 8 C.F.R. § 1003.1(e)(4). She timely petitioned for review.


This Court has jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed the IJ without opinion, this Court reviews the IJ's opinion alone. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We review the IJ's opinion under the "substantial evidence" test, set forth in 8 U.S.C. § 1252(b)(4)(B): "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." See also Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (agency's finding "must be upheld unless the evidence not only supports a contrary conclusion, but compels it."). Under this standard, "[T]he Court will uphold the agency's findings of fact to the ...

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