Qin Li Zheng v. Gonzales

Citation: 145 F. App'x 780Docket: No. 04-1441

Court: Court of Appeals for the Third Circuit; August 31, 2005; Federal Appellate Court

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Qin Li Zheng, a native of China, appeals the Board of Immigration Appeals (BIA) decision that upheld an Immigration Judge's denial of his asylum application, withholding of removal, and relief under the United Nations Convention Against Torture (CAT). The Immigration Judge failed to assess whether Zheng has a well-founded fear of persecution upon his return to China. Zheng, who initially submitted a false asylum application in 1994 claiming involvement in the Tiananmen Square protests, later filed a new application in 2001 citing persecution due to China's 'one-couple, one-child' policy. He admitted to the untruthfulness of his first application and detailed his experiences in China, including threats from family planning officials after the birth of his daughters. Zheng fled China in April 1990 when his wife became pregnant with their second child, and she later also sought asylum in the U.S. The couple's daughters, born in the U.S., also emigrated, while their family faced potential repercussions from Chinese authorities for their violations of family planning policies. Zheng provided an affidavit from demographer John Shields Aird, which outlines the coercive practices of Chinese family planning officials and argues against the notion that returning citizens with children born abroad would be exempt from punishment. The court partially grants Zheng's petition and remands the case for further proceedings.

Chinese couples returning home with unauthorized children face enforcement of the country’s family-planning policy, as neglecting these violations could undermine the policy's authority. The Chinese government aims to prevent the perception that couples can circumvent the one-child limit by having unauthorized children abroad. Penalties for such violations may include forced abortion and sterilization. The Immigration Judge (IJ) denied Zheng’s request for relief, largely due to an adverse credibility finding linked to Zheng's false asylum application in 1994, without considering evidence regarding the treatment of returning citizens with foreign-born children. Zheng's appeal of the Board of Immigration Appeals (BIA) decision is currently being reviewed under the Immigration and Nationality Act (INA) jurisdiction. The IJ’s findings will be upheld unless a reasonable adjudicator would reach a different conclusion, and the court must support the IJ’s determination if substantial evidence exists in the record.

To qualify for asylum, an applicant must be deemed a 'refugee' due to a well-founded fear of persecution based on specific criteria such as race or political opinion. The burden of proof lies with the applicant to establish eligibility and the discretionary merits of their case. Resistance to China’s one-child policy is considered a form of political opinion persecution. Although the BIA previously ruled that the one-child policy alone does not constitute persecution, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 expanded the definition of 'refugee' to include those who have faced or fear coercive population control measures, recognizing such experiences as persecution based on political opinion.

To qualify for withholding of removal, an applicant must demonstrate a 'more likely than not' chance of facing persecution based on enumerated characteristics if returned to their country, as outlined in 8 U.S.C. § 1231(b)(3)(A) and 8 C.F.R. § 208.16(b). B. Zheng asserts he cannot return to China due to a well-founded fear of persecution related to China's family planning policies, specifically the threat of forced sterilization. The Immigration Judge (IJ) initially found insufficient evidence of past persecution but was required to evaluate the objective reasonableness of Zheng’s fear, regardless of past claims. The IJ's adverse credibility determination was influenced by Zheng’s prior submission of a false asylum application, yet the decision to dismiss his claims solely based on credibility was inappropriate. Even with credibility issues, the IJ should have considered objective evidence of conditions in China that relate to Zheng's claims. Past rulings, such as Guo v. Ashcroft, clarify that a prior adverse credibility finding does not automatically invalidate subsequent asylum claims based on distinct grounds. The IJ’s approach effectively applied the principle of falsus in uno, falsus in omnibus, which is not permissible in this context. Furthermore, the IJ's pre-hearing comments indicated a bias against Zheng, suggesting that his judgment may have been unduly influenced by Zheng’s past untruthfulness rather than the merits of the current claims.

Zheng's claim for future persecution was primarily denied based on credibility issues and the assumption that his children would not accompany him back to China. The court found the immigration judge's (IJ) reasoning questionable for several reasons: the potential family breakup contradicts U.S. immigration policy; the IJ's implication that Zheng's arrival without his children indicates a lack of commitment to family reflects a subjective judgment rather than a factual assessment of his refugee status; the suggestion that Zheng could abandon his children contradicts U.S. asylum objectives; and the IJ's conclusions were speculative and unsupported by evidence. Consequently, the case is remanded for a reevaluation of Zheng's asylum and withholding of removal claims, with a recommendation to assign a new IJ due to the previous IJ's comments.

Regarding the claim for relief under the Convention Against Torture (CAT), the applicant must demonstrate a likelihood of torture upon removal. Zheng argues that his unauthorized exit from China may lead to imprisonment and potential torture if returned. However, the court has previously determined that the mere possibility of imprisonment in China does not warrant CAT relief. Zheng failed to provide additional evidence to support his claim, leading to its rejection.

In conclusion, Zheng's petition is partially granted for his asylum and withholding of removal claims but denied for the CAT claim, with the case remanded to the Board of Immigration Appeals (BIA) for further proceedings. The document also clarifies Zheng's name usage and notes the historical context of the INS's dissolution and its functions' transfer to the DHS.

Zheng's argument for past persecution is deemed waived due to his failure to substantiate it beyond a conclusory assertion, as established in Reynolds v. Wagner. Two of his four children are U.S. citizens, aged eight and seven. Asylum applications must typically be filed within one year of arrival in the U.S., per 8 U.S.C. § 1158(a)(2)(B), unless extraordinary circumstances exist. Zheng contends that this one-year limitation should not apply to him because he filed his initial application before the amendment that established the time frame, and his subsequent application was a continuation of the initial one. The Immigration Judge (IJ) previously considered this one-year limitation in relation to Zheng’s 2001 application. The Board of Immigration Appeals (BIA) may also find that an exception to the one-year rule applies. The resolution of these § 1158 issues is left for consideration on remand.