*1 — -, 124 S.Ct. zen, U.S.
L.Ed.2d 60
It is so ORDERED. LI, Petitioner, He
Chun ASHCROFT, Attorney
John
General, Respondent.
No. 02-72689. Appeals, Court of
United States
Ninth Circuit. May 7,
Argued and Submitted Aug.
Filed *2 FARRIS, NOONAN,
Before RAWLINSON, Judges. Circuit FARRIS, Judge: Senior Circuit Li, Chun He Peoples native of the Republic of petitions for review of the Board of Immigration Appeals’ final affirming order an Immigration Judge’s deny decision to request and withholding of removal. Li alleges persecution by the Chinese Government. He asserts that he and his wife were ar- fined, rested and and that his wife was forcibly sterilized, pursuant to the PRC’s policy. one-child Our review ends if there support evidence to the IJ’s adverse credibility decision. There is. We there- deny petition. fore
Background Upon his arrival the United States on 4, 1992, May applied Chun He Li for ad- mission country. into the After an inter- officials, view with INS placed he was proceedings exclusion and released into the community pending a hearing. Li failed to appear at the hearing, and was ordered deported in In absentia. Li submitted separate asy- three applications, lum claiming persecut- he was ined China because he and his wife had been fined for having many children. In Li filed a reopen, motion to granted. which was A hearing was held August at which Li conceded removability, sought asylum and with- Joseph NY, Bruno Bempi, Hempstead, removal, holding of alleging that he and for the petitioner. persecuted by PRC Molina, Earle Wilson and Ernesto H. enforcing officials the coun- Jr., Justice, United States Department of try’s policy. one-child In addition to his D.C., Washington, respondent. fined, earlier claim that he had been
asserted for the first time that his wife had
been forced to undergo sterilization.
claim,
presented x-rays, purportedly
also
testified
of his
Feng Ying,
taken
A
wife,
that were
Feng
married his
that he
in 1999 and
doctor examined them
conclud-
Their first son was
Ying Chen in 1978.
they were
with a tubal liga-
ed
consistent
a second was born
born
while
*3
performed
patient
tion
an unknown
at
on
Li, shortly
to
after the
According
1981.
an unknown
Li also
time.
submitted a
birth,
fined
government officials
second
photograph
Ying depicting
of Feng
a scar
children,
many
for
then
having
them
recognize
on her abdomen. We
that this
to have an
in-
required Feng Ying
IUD
unrefuted,
testimony, if credible and
would
serted.
persecution.
establish
malfunction, Feng
apparent
Due to an
The record includes Li’s sworn interview
again
gave
Ying
pregnant
became
Inspector
to Immigration
statement
Rich-
February
ato
third son on
birth
Airport
ard
at the Honolulu
on
Westlake
officials
Li
that when
discovered
testified
4,May
Inspector
Westlake testified
this,
him and told him that
they arrested
at the
the
proce-
and described
mandatory
undergo
would
sterilization.
he
interviewing
dures utilized in 1992 for
ar-
Fearing
destroy
procedure
the
riving
presented
aliens.
INS also
work,
ability
begged
to
officials to steri-
It
prior asylum applications.
three
is un-
They agreed, and
lize his
instead.
wife
stronger
a
disputable that he made
case
custody
day
the
Feng Ying
took
into
next
August
hearing than
had
the
he
at a
her
local com-
forcibly sterilized
prior
ques-
on
occasions.
three
family
that
mune
Li testified
the
hospital.
are sufficient
tion is whether there
incon-
8,000 yuan
having
also
for
their
fined
reasonably
for an
to
conclude
sistencies
IJ
child,
if
they
jailed
third
told
would be
testimony
that the
was not credible.
fine
paid.
was not
hearing,
At
the close of the
IJ de-
fine,
not afford
they
Because
asylum and
request
nied Li’s
withhold-
City,
Zhou
lo-
family
moved to Guan
ing, finding
appealed
him not credible.
by train
their
cated about 20-hours
BIA
ruling,
the IJ’s
which
affirmed
They lived there for seven
hometown.
without comment.
they avoided
years, during
govern-
which
Discussion
seeking
ment
to collect the fine.
officials
move,
Later, that after the
learned
BIA affirmed
Because
cadres went to his house to
opinion,
ruling.
the IJ’s
without
we review
they
collect the
discovered he
fine. When
Ashcroft,
Falcon
Carriche v.
fled,
ransacked
had
the officials
his house
(9th Cir.2003).
belongings.
and seized his
qualify
asylum,
To
was re
fled
in late
Li testified that he
China
prove
unwilling
unable or
quired
he was
outstanding
fearing
penalty
to return
“because
China
jail
At the
would result in additional
time.
or a well-founded fear
hearing, Feng Ying and
race,
nationality,
time of the
religion,
account of
mem
par-
moved with
bership
group,
his children had
social
or
particular
ents,
Al-
province.
who
in their home
political
opinion.”
live
U.S.C.
1158(b)(1).
§
occasionally
1101(a)(42)(A);
though Feng Ying
§
visited
8 U.S.C.
she feared that officials
been forced
abort
village,
person
their home
who has
“[A]
involuntary
failing
undergo
her for
or to
steri
pregnancy
would find her and arrest
lization,
persecuted for
or
has been
pay
outstanding
fine.
who
undergo
proce
failure or refusal
he or
member of his
arrested,
other resistance to a coercive
ever been
which
dure or for
contrasted with
Moreover,
program,
healing.
shall
population control
testified that he
on ac
was assessed 200 Yuan
deemed to have
after the birth of his second child
opinion.” 8 U.S.C.
and 8000
political
count of
1101(a)(42)(B).
Yuan after the third.
Spouses
applica-
§
forci
The earlier
those
tions stated that he was
Yuan
fined 3000
bly
“refugees”
are deemed
under
sterilized
for his second child and 3500 for his third.
as well. Li v.
this section
(9th Cir.2004).
Whether
“significant
these are
and rele-
discrepancies”
vant
that undermine Li’s
eligibility for withhold
To establish
the IJ’s decision to
*4
removal,
ing
required
prove
Li was
him
question
disbelieve
is a
about which
likely
that if
it is more
removed
may
reasonable minds
differ. Lata v.
than not that he will be
on INS,
(9th Cir.2000).
1241,
204 F.3d
1245
statutorily-protected ground.
account
aof
inquiry
But our
simply
whether a rea-
INS,
882,
v.
242 F.3d
Al-Harbi
888
sonable IJ could so conclude.
1231(b)(3).
Cir.2001);
§
8 U.S.C.
Li argues that the
IJ erred
consider-
ruling denying asy
review a
We
prior asylum
his
applications because
withholding
lum or
of removal for substan
there was no
qualified legal
evidence
a
tial evidence. Baballah v.
335 professional
spoke
language
who
filled
(9th Cir.2003).
981,
“It
F.3d
987
can be
out
Contrary
those forms.
to these asser-
if
only
presented
reversed
the evidence
tions, Li
testified that
applications
...
that a
was such
reasonable fact finder
completed
were
at a
firm by
law
an assis-
requisite
would have to conclude that the
tant who reviewed the forms with him in
existed.”
fear
INS v. Eli
language.
his native
Li signed them un-
as-Zacarias,
478, 481,
502 U.S.
112
penalty
S.Ct.
der
of perjury. They had impeach-
812,
any evidence that had been fined for marrying young, asylum or that his Here is the heart of claim wife had required gynecological probable persecution: to submit to based on future A China, exams after her IUD was inserted 1981. citizen of Li violated the law of This, found, the IJ “weakened by fathering over- China A [Li’s] three children. vio- My try. brother and I differ on what is the I am content to review. appropriate appellate He function. would re- facts and under every has On these undoubted law of he lator of the law, controlling viola- his wife face persecution for his the reason to fear persecution in Noth- probable perse- probability future China. tions. This fear discrepancies by asylum alleged him to in this coun- in the the cution INS entitles probability. offers this try. Nothing the IJ’s decision alters impugn testimony supporting the reason to to the heart” of “go Inconsistencies must this Nothing opinion the the claim. justify claim to an the adverse claim. impugn court offers reason credibility finding. Ashcroft, v. Singh Indeed, found credible Li’s testimo- the IJ (9th Cir.2002) (internal F.3d Nonetheless, three ny that he had sons. omitted). quotation Very recently, marks on the the IJ consideration we had to reverse decision of BIA probable merits of his future denying applicant whose wife was claim. undergo Chinese authorities to forced pregnancies vio- worse, two abortions because matters the IJ discred Making government’s policy. one-child lated per regarding past presentation ited Li’s The denial based on IJ’s adverse the sterilization of Li’s secution based on credibility That determi- determination. grounds for by relying wife on forbidden speculation. on affirm, nation was based the IJ’s credibility To ruling. an adverse Ashcroft, Ge v. 367 F.3d at rules ignores the court two our central scarcely stronger case is instant findings: the credibility regarding adverse yet It is all too reminiscent of anoth- INS. can credibility findings rule that adverse compelled er in which case we were conjec by speculation or justified not be the BIA “picked reverse because ture, Ashcroft, 367 Ge memory laps inconsistencies on (9th minor Cir.2004), ad “[a]n rule that periphery.” Kebede Ash- issues finding verse is not based croft, 366 F.3d We BIA or the when the substantial evidence BIA: reminded ex applicant’s on an IJ did not comment planation, suggest nor reason adverse credibil- Although we review an Guo explanation found his credible.” under deferential “sub- ity finding standard, Cir. v.He Ash- stantial evidence” *7 2004) (internal quotation marks and brack Cir.2003); 593, F.3d croft, 328 595 omitted). INS, 1245, ets F.3d Alvarez-Santos 332 (9th Cir.2003), finding “must 1254 by challenged are not this Three truths by cogent rea- supported specific, be by opinion court or the IJ: INS, son.” de Lean-Barrios to couples 1. forbids married China (9th Cir.1997) (quoting F.3d punish- more than one child and procreate INS, 955 Berroteran-Melendez es those who do. (9th Cir.1992)). The incon- 2. States Congress the United are on which the IJ relied not sistencies governmental has that such a determined and do not “significant and relevant” human policy, offensive as it is to deeply credibility determi- support an adverse persecution a form of dignity, is INS, Lata v. nation. asy- provide
which States the United will lum. and relevant significant No Id. at 810-11. inconsistency presentation undermines Li’s three sons
3. He fathered Chun consequent expo- and his They aged paternity are now 17 and 15. of his China. determination); by the draconian anti- reprisal IJ’s see also United States sure to State, Department Country of China. population policy China: Asylum Ap- Conditions and Comments on which had the The sole plications 39 There was no reason testify to before IJ opportunity expect every to enforcement in IJ on'August At the 1999. conducted aspect here. testimony, the dictated of the IJ conclusion then reviewed the writ- She her decision. 3. his interview and his decision, conscien- transcript of ten 1992 and applications did not men- that she did tiously noting so “without tion his wife’s forced sterilization. These Proceedings.” by of Record She omissions were benefit treated the IJ as under- principal mining to relate her reasons Li’s But failed case. the court now worse, her reasons show notes: “Li had claim. What less reason to mention his making up a against her to case wife’s sterilization in 1992 and 1993 be- cause, time, she disfavors: applicant forced sterilization did not constitute as a matter of appear pro- not “did interested law;.” only Not did have less reason to viding complete questions answers sterilization, mention the he had no reason posed refugee about his claim. For exam- at all to mention it. What benefit would stated that he did not tell his ple, applicant gained by citing he have a fact that at the Catholic, attorney that he is a current bearing asylum applica- time had no on his filling page out 1 of the form when she was tion? he supposed anticipat- Was to have 1-589, because he didn’t think it was nec- Congress’s ed later action in changing the it.” essary to tell her about As the court law and the BIA’s extension of the law to notes, the information was indeed ir- now cover spouse? sterilization of a Was his Why pounce relevant. does the IJ on his credibility to be doubted because he did reticence? every indignity not recite mi- every impugned credibility 2. The IJ be- sery put upon him and his wife pro- testify did not that he cause he had been creating three children? marrying young, fined for and he did credibility The IJ also found Li’s testify that required his wife had been subverted that he re- gynecological submit exams after her years mained China seven after the IUD was inserted soon after the birth of forced sterilization of his wife. The court their second child. As the court now now dismisses the IJ’s inference. Li was notes, these matters had “little to do” with in hiding; openly present he was not the forced sterilization. And mat- these China. probabil- ters also have little do with the ity that Li will be gave 5. The IJ another *8 father of three. Even more notable is that knock because the “fine amount noted in IJ, very ruling against the same another the earlier applications greatly is asylum petitioner province from the same inconsistent with the fine applicant amount (Fujian) seeking popu- relief from China’s during hearing, testified to the provid- and policy, way lation went out of her to note in application.” ed his 1999 precise The that Department reported the State had amount of the fines is not a material factor was fined— n policy consistently that not in application. China’s was Li’s That every aspect. Wang enforced in See and fined amounts that were substantial Ashcroft, Fed.Appx. peasant WL for a Chinese point the salient —is (9th 2004) in (reversing application Cir. June both his and in his testimo- finding, In not persecution. so the IJ did ny. Singh v. Cf. Cir.2002) impartial herself (holding judge a conduct but petition- that pick rather as a politi- prosecutor a anxious the location of confusion over er’s wonder, petitioner’s story. in holes the No not he attended could rally cal he said persuaded by has the court not been what credibility finding be- an adverse focuses the IJ on. peti- was that the point the material cause rally, not the political attended a tioner But there more. The attached is IJ a location). Li for not tailor- hang To rally’s significance to the fact that Li’s sinister application made testimony to an ing his province wife moved back to their home snap gnat. a earlier is to years seven occasionally visited their hometown authority, dis- By circuit we must binding for nonpayment without arrested Ash- irrelevancy. Wang regard the fine. The court that states (9th Cir.2003); 1015, 1021 croft, 341 F.3d reasonable deem move visits 1111, 1113. is no F.3d at There Singh, 301 family hiding. inconsistent with a in But asy- to the heart of his going contradiction any inconsistency depends speculation on lum claim. how a of a family hiding as to member conjectural should behave. This model had that wife The IJ doubted a family member of eschew all fearful must in 1984. involuntarily sterilized been scrupu- with home village contact her First, were x-rays the IJ found that lously avoid living within the boundaries of years after “taken some province. her home And if the bonds of most, But, alleged operation.” home sometimes draws her to her home corrobo- skepticism here went IJ’s risk, or village despite the if she resides testimony. to Li’s own rating evidence not boundaries, lay- within the albeit forbidden Second, that steriliza- the IJ declared low, ing then she has broken the rules for voluntary, have since she tion “could been speculative model the IJ’s sons, barely they had three whom hiding. speculation Such the IJ or this supporting appli- in addition to support, Ash- precedent. court violates our Ge v. reasoning at mother.” But the IJ’s cant’s croft, 367 F.3d no speculation. point this sheer She Li, and so her doubting she shifts short, basis In cobbled together, imagine” it “difficult ground and finds memory testimony, the recent bits in 1992 why surgery and, Li didn’t mention the with a pieces of Li’s evidence was not and 1993 when forced sterilization an arbitrariness that do persistence and asylum. The made ground IJ bespeak dispassion, found not guess and faulted Li because of it. provided by her own credible on the basis or the basis of details en- speculation on sum, on misinterpreting based tirely peripheral to Li’s case. China; hiding candid about uphold- court of its significance places of his memo- now most exaggerating the fines; ry chastising him for not IJ’s determination of the in which he embroidering officials Li’s what he suffered as he had China. population policy; the official enforced “The could reason- wife’s sterilization was The court declares: IJ guessing *9 discrep- ably at conclude that there a valid voluntary; marveling his non-asser- ancy airport at between the interview tions of basis for times when co- effective, clearly But Li testimony.” legally not have been did explained why spoke he as he past gently on the IJ found incredible issue I airport: first came to the “When States, CUSTER, Jimmie Lee inspector United the INS asked me Petitioner- Appellant, if government persecuted the Chinese ever me, no, time, always and I said at that because I afraid the government U.S. HILL, Superintendent, Jean Eastern notify government, the Chinese Oregon Institution, Correctional then, I will be sent back to China. I was Respondent-Appellee. very afraid that the INS would send me back to I then would definitely be No. 02-36038.
jailed.” United States Court of Appeals, The court says now that “the IJ did Ninth Circuit. explanation.” Curiously, address Li’s Argued and Submitted Nov. court, although invited this dissent to so, do is not page able to cite to of the Aug. Filed administrative record for the statement. fact,
In absolutely the IJ makes no com explanation.
ment on Li’s For the IJ and
the court any weight to attach to Li’s
denial without consideration explanation
of his is a clear violation of
Guo v. operate
We cannot as a court if a panel
feels free to disregard precedent that it
finds inconvenient. light of its dis-
regard binding authority, the court’s
effort to airport rehabilitate the
has been expended vain. And nothing pri- interview rebuts Li’s
mary claim that he will face
the father of impartial three sons. What
fact finder would not compelled be to at
least consider the merits of Li’s claim that will,
he likely not, more than
for having if three sons our pro-family
values returns him to his
country origin? stated,
For the reasons I respectfully
and regretfully dissent.