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Wang v. Attorney General of the United States

September 21, 2005

QUN WANG, PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES



On Petition for Review of an Order of the Board of Immigration Appeals. (BIA No. A77-993-922).

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

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 8, 2005

BEFORE: FUENTES, VAN ANTWERPEN, and BECKER, Circuit Judges

OPINION

We have stressed previously that "[a]s judicial officers, [immigration judges] have a responsibility to function as neutral and impartial arbiters and must assiduously refrain from becoming advocates for either party." Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003). Here, we find the immigration judge (IJ) failed this basic requirement.

Petitioner Qun Wang alleges that his wife was forcibly sterilized after giving birth to a second child. The IJ found him incredible and denied him relief from deportation. The Board of Immigration Appeals (BIA) affirmed. Because of the manner in which the IJ conducted Wang's hearing, and the deficiencies in her opinion, we do not believe that the existing record can sustain an adverse credibility finding. Accordingly, we will grant the petition.

I.

A. Events in China

Wang is a 34-year old native and citizen of the People's Republic of China. He alleges that an intrauterine device (IUD) was forcibly inserted into his wife by government officials after she gave birth to their first daughter in November 1998. Wang claims that because the daughter was born with a disability, and because he and his wife wanted a son, they asked the local authorities for permission to have a second child. Their request was denied pursuant to Fujian Province Family Planning Regulations, under which those with an agricultural registration, including Wang's wife, are not permitted to have more than one child. AR 253-55. Wang alleges that his wife had the IUD removed by a private doctor and she became pregnant again in December 1999. Wang's wife hid at her parents' house until she gave birth to a second daughter. Because she did not wish to burden her ill and aging parents, and because she did not desire to remain in hiding forever, Wang's wife returned home one month after the birth of her second daughter, in October 2000. Shortly thereafter, Wang alleges that a local birth control cadre came into their home and dragged his wife to a family planning center where she was involuntarily sterilized. Wang submitted into evidence the 1989 Fujian Province Family Planning Regulations that prescribe such measures. The officials also allegedly fined Wang 12,000 RMB (or "Renminbi"), and upon his refusal to pay, began deducting a penalty from Wang's parents' retirement pension.

Wang claims that, in the period between his wife's forced sterilization and his departure for the United States, he unsuccessfully attempted to procure a visa to the United States using false documents. He also allegedly wrote a letter to the United Nations Human Rights Commission describing the above incidents. He delivered that letter to the United States Consulate in Guangzhou but denied to consular officials that it related to himself out of fear that its contents might be communicated to Chinese authorities. Wang ultimately left China for the United States through a smuggler whom he paid approximately $60,000 in borrowed funds.

B. Proceedings in the United States

Wang arrived in the United States in January 2002 without valid entry documents. The former Immigration and Naturalization Service (INS)*fn1 commenced removal proceedings against Wang in February 2002, charging him with removability under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Wang conceded removability but applied for asylum, withholding of removal, and protection under the Convention against Torture (CAT). In particular, Wang claimed that he had been subject to past persecution on account of political opinion. See 8 U.S.C. § 1101(a)(42) (providing that forced sterilization constitutes persecution on account of political opinion); Matter of C-Y-Z, 21 I. & N. Dec. 915, 917 (BIA 1997) (en banc) (holding that past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse). A hearing was held before Immigration Judge Annie S. Garcy in December 2002.

1. Hearing Before the Immigration Judge

At his hearing before Judge Garcy, Wang was represented by Yee Ling Poon. Xiomara Davis-Gumbs appeared on behalf of the INS. The IJ's questioning of Wang during his asylum hearing preshadowed her hostile attitude towards him and his claims.

After counsel and the IJ took Wang through a recital of his basic factual allegations, they reached his claim that his parents' pension was being withheld as a penalty for his violation of birth control policy. The IJ questioned Wang as to why he had not paid the fine he was issued as a result of that violation, in order to restore his parents' pension:

JUDGE TO MR. WANG:

Q: Well, why don't you just pay the fine and solve your parents [sic] problem. I don't understand why you haven't paid it.

A: I do not have the money to pay.

Q: Oh come on. You're here in the United States of America after having paid a smuggler to get here. And a lawyer's working on your case and you're dressed in a suit and tie and you want me to believe that you can't pay $1,500.

A: The money I pay to the snake head [smuggler] I have to borrow money in order to pay the snake head.

Q: So you choose to pay the smuggler instead of paying the fine and protecting your parents [sic] pension. What sympathy do you want from me about that?

A: Not that I do not want to protect my parents. If I will stay in China no one will lend me money to pay the fine.

Q: You're not in China, you're in the United States and you're making money when you work.

A: Yes, I do.

Q: So why do you expect sympathy from me that you choose to pay money to a smuggler instead of protecting your parents [sic] pension?

You must be out of your mind if you think I have sympathy for that.

A: First of all, I believe when government impose fine against my family it's outrageous. Secondly, I owe a lot of money to different sources and I have to pay them back. They force me to. Certainly I do regularly send money back to support my parents.

Q: All these sources that you're describing are a bunch of illegal people who conspired with you for you to be smuggled into the United States. Are those ...


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