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Zhang v. Gonzales

January 19, 2006; as amended January 27, 2006

JUNSHAO ZHANG, PETITIONER-APPELLANT,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, AND DEPARTMENT OF HOMELAND SECURITY,*FN1 RESPONDENTS-APPELLEES.



Petition for Review of an Order of the Board of Immigration Appeals. No. A73-488-569.

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

ARGUED APRIL 12, 2005

Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

Junshao Zhang, a native of the People's Republic of China, arrived in the United States at New York's JFK airport in January 1995, at which time he was placed in exclusion proceedings. The government alleged that Zhang lacked a valid passport, visa or border-crossing card in violation of §§ 212(a)(7)(A)(i)(I), (B)(i)(I), and (B)(i)(II) of the Immigration and Nationality Act (INA), and that he presented a fraudulent passport to seek to gain entry into the United States in violation of INA § 212(a)(6)(C)(I). Zhang sought political asylum and withholding of deportation to China.*fn2

At the immigration hearing, Zhang admitted the allegations regarding the lack of a non-immigrant visa, lack of an immigrant visa, and lack of a travel document, but denied the allegation of fraud under § 212(a)(6)(C)(i). The government subsequently withdrew the fraud charge, which the immigration judge (IJ) acknowledged at the hearing. The IJ held that Zhang's excludability was established by his admissions as to the other charges, and turned to Zhang's request for asylum and withholding of deportation. After hearing Zhang's testimony, the IJ found that Zhang's claim was based principally on his opposition to the forced family planning regulations in China, and his experience as a victim of that policy in China. The IJ found that Zhang's testimony was credible, and made findings of fact based on that credibility assessment. Specifically, the IJ found that: Zhang is opposed to the Chinese birth control policy; Zhang and his wife had a marriage ceremony at home, but never officially registered the marriage because he was under the age of 22 and she was under the age of 20, which are the legal ages of marriage for males and females respectively in China; in June of 1994, his wife was detained by Birth Control Bureau personnel and was forced to have an abortion because she was underage; and his wife was held for 2 days, and Zhang was ordered to pay a fine.

Although crediting Zhang's testimony and finding those facts in his favor, the IJ nevertheless denied the requested relief based on Matter of Chang, 20 I. & N. Dec. 38 (BIA 1989). In Chang, the Board held that implementation of the one-child policy does not, by itself, create a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Accordingly, the IJ held that Zhang was statutorily ineligible for a grant of asylum.

Congress subsequently enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546 (IIRIRA). Section 601(a)(1) of the IIRIRA amended the definition of refugee by providing:

(A) [a] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.

§ 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (Supp. II 1996). The impact of that amendment was to overrule Chang, and allow for the granting of asylum applications in cases in which the claim of persecution stemmed from the enforcement of China's coercive population control policies.

After the enactment of that amendment, the Board was presented with requests by many asylum applicants to reopen their cases. Many of those motions to reopen were untimely because the change in law came after the time for reopening had expired. See 8 C.F.R. § 3.2(c); In re X.G.W., 22 I. & N. Dec. 71 (1998). The Board nevertheless recognized the Congressional desire to provide relief to individuals suffering persecution because of China's coercive population control policies. Accordingly, the Board declared that it would exercise its "limited discretionary powers under the regulations to reopen or reconsider cases sua sponte in unique situations where it would serve the interest of justice." Id. at 73. Specifically, the Board held that it would grant reopening of asylum claims based on coercive family planning policies where the alien had presented persuasive evidence of persecution based on China's "one-couple, one child" policy, and where asylum had previously been denied based on Chang. X-G-W, 22 I. & N. Dec. at 74. The Board in X-G-W granted reopening on that basis, and granted the application for asylum. Id.

In 2002, the Board in In re G-C-L, 23 I. & N. Dec. 359 (2002), declared that its liberal reopening policies for such untimely claims would end in 90 days, reasoning that those with final orders of exclusion or deportation had been provided a reasonable period of time in which to seek relief during the five years in which untimely reopening was allowed. The Board proceeded to consider the applicant's claim in G-C-L. The Board began by accepting the Immigration Judge's positive credibility finding. Id. at 361. Given that credibility finding, the Board held that the applicant had established that he suffered past persecution in China on account of political opinion, and was thus presumed to have a well-founded fear of future persecution. Id. Although that presumption could be rebutted by a showing that there had been a fundamental change in circumstances such that the applicant no longer had a well-founded fear of persecution if returned to China, the INS had not offered any such rebuttal evidence and therefore the Board granted the application for asylum. Id.

Zhang moved to reopen his case within the window of time in which the Board was allowing such reopening. The Board determined that Zhang had established prima facie eligibility for asylum based on the new definition of "refugee" in the IIRIRA, and remanded the case to an IJ to consider the claim under current law and for entry of a new decision.

Rather than rely on the fact findings by the prior IJ, and update the record as to any changes in circumstances in the interim, the IJ conducted a new hearing at which he made new fact findings contrary to those determined in that initial hearing. First, the IJ questioned whether Zhang was married at all, not because he found Zhang's testimony inherently incredible, but because Zhang presented no corroborating evidence from his former spouse (Zhang testified that after he left China, his wife moved to another town and eventually remarried.) Even assuming that a marriage ceremony took place, the IJ held that Zhang had the burden to establish that the ceremony constituted a marriage under Chinese law, and that he had failed to do so.

The IJ also held that Zhang had failed to prove by credible evidence that his wife had been subjected to a forcible abortion. The IJ declared that there was reason to doubt Zhang's description of what happened to his wife because there was no corroboration for it from others such as his wife, nor any hospital record produced of the abortion. Moreover, the IJ held that Zhang's testimony was at variance with the State Department Profile of Asylum Claims and Country Conditions, and the Immigration and Nationality Directorate of the U.K. Finally, the IJ noted that the initial immigration judge had found Zhang's testimony credible and his demeanor appropriate in 1995, but the IJ then reached the opposite conclusion at this hearing. The IJ noted that Zhang gave answers quickly and readily on direct examination, but was more hesitant and claimed very often not to remember on cross-examination and when questioned by the Court. As an example, the Court noted his responses when questioned as to what he told the immigration officers in 1995. The IJ questioned Zhang at length concerning his use of a fraudulent passport ...


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