Wang v. Atty Gen USA ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-21-2005
Wang v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 04-2866
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 04-2866
___________
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)
__________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 8, 2005
BEFORE: FUENTES, VAN ANTWERPEN, and BECKER,
Circuit Judges
_______________________
(Opinion Filed: September 21, 2005 )
_______________________
1
Dehai Zhang
Suite 207
39-15 Main Street
Flushing, NY 11354
ATTORNEY FOR PETITIONER
Jonathan Porter
Emily Radford
Allen Hausman
Blair T. O’Connor
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
ATTORNEY FOR RESPONDENT
__________________
OPINION OF THE COURT
___________________
FUENTES, Circuit Judge.
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
2
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.
3
B. Proceedings in the United States
Wang arrived in the United States in January 2002 without
valid entry documents. The former Immigration and
1
Naturalization Service (INS) 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
1
The Immigration and Nationality Act was amended by
the Homeland Security Act of 2002, Pub. L. No. 107-296, § 471,
116 Stat. 2135, 2192, 2205 (Nov. 25, 2002), which, on March 1,
2003, transferred the functions of the INS to various bureaus,
including the Bureau of Citizenship and Immigration Services
within the Department of Homeland Security. The functions of
the Executive Office for Immigration Review continue to reside
in the Department of Justice, under the direction of the Attorney
General. See Dia v. Ashcroft, 353 F.3d 228, 236 n.3 (3d Cir.
2003).
4
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?
5
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 the sources that you’re describing to me?
A.Yes, my trip was arranged by snake head.
Q.Well understand clearly, I have no sympathy with your problem about
that.
A.R. 129-31.
When Counsel Poon attempted to question Wang further about the
pension, the IJ instructed her to “Get off the pension thing,” but
she then persisted in pursuing the very theme she told counsel to
avoid. A.R. 70. Her exchange with Poon went as follows:
JUDGE TO MS. POON:
Q:It’s ridiculous. Go away from this issue and move on because it’s just
insane.
A.I am not trying to stick on it. I’m only trying because I was asked for
him to explain why he edit [his asylum claim] now.
Q.I don’t even know why he put it in. To me it just makes me more
convinced that your client is willing to do anything, even to the
detriment of his parents, to take care of himself. You and I both know,
6
there is nothing that happened in this case, nothing in the sworn
statement that’s even going to begin to explain why he chose to come
here at the moment that he did, okay.
A.I will ask him.
Q.And you can ask him and I know what he’s going to say. He finally
had the money together or whatever he needed to pay the smugglers
because there’s nothing here at all and maybe we’ll learn something
suddenly today. That there’s nothing here about the timing and there’s
nothing to convince me that he shouldn’t have gone ahead and paid that
fine first before he came here.
A.Because he had no money when he was in China.
Q.I don’t know about that.
A.That’s what he said.
Q.Well, that’s what, he can say anything he wants.
A.R. 134.
When Poon later objected that the government fine for having a
second child should not be linked to the engagement of a smuggler
to leave China, Judge Garcy responded:
Well, it sure does. He’s complaining about how his parents [sic]
pension is being taken away because the fine isn’t paid, and I’m saying,
pay the stupid fine and then complain about it later because if his claim
is oh, boo who, you know, this horrible fine is being imposed upon me
and I’m entitled to asylum, there’s absolutely no reason why the claim
can’t be made even after the fine gets paid.
7
A.R. 136.
Ultimately, counsel was able to move on to more pertinent issues,
such as why Wang’s wife did not accompany him to the United
States, or travel here instead of him, why he left China when he
did, why he would not want to return to China, his dealings with
the American Consulate General Office, his employment in China,
his understanding of the prevailing birth control regulations and
his various encounters with the birth control authorities, his wife’s
current situation in China and her reasons for returning home after
the birth of the second child. In connection with the last issue, the
IJ asked Wang:
Q.Why couldn’t she have stayed longer than a year and helped take care
of that sick relative and everything like that?
A.Because while my wife was there my handicapped child was there as
well.
Q.Well, wherever your wife goes the child with the disability goes,
right?
A.Yes, yes.
Q.And let’s talk about her. Have you ever had medical records about
your darling first child Ming Wang brought to the United States of
America? Yes or no. I want a short answer, yes or no. Do you have her
medical records here, yes or no?
A.Only photos.
Q.Okay. Well why haven’t you ever, ever gone to a doctor in the United
States with medical records about your first born child to see whether
8
there’s a better treatment for her here in this country?
A.I did produce my daughter’s old x-ray film to my cousin and my
cousin helped me to inquire doctors and we were told that in America
she might need operation.
Q.Well why don’t you have any medical records here to prove to me that
you care enough about your daughter to have asked the doctor here
about her welfare?
A.I really indeed care my daughter, but I just was not aware that I need
such document be produced into the Court.
Q.Well you care about your daughter, that’s interesting because all you
write about in your application here is how you want to try to have your
wife come here because you’re upset about his fine and you’re upset
about how you can’t produce a son. Why is it in all these pages you’ve
never once made any effort to try to find out whether medical care
would be available to your child here potentially even on a visa for her
to travel to this country?
A.Indeed I am a father of a child. I really care for my kids especially my
daughter and I just did not, I was just not aware that I need to produce
such a particular document to this Court.
A.R. 174-75.
The Judge eventually moved on to ask Wang about the similarities
between his wife’s submission to the Court, and his own account.
She then again asked Wang why he delayed his departure from
China for such a long time. Wang responded:
A.Actually when my wife was forcefully sterilized I had such
desire to leave the country, but as I explained before it’s not the
easy that whenever you want to leave you want to go to America
9
you can easily achieve such goal. You have to go through many
people’s help.
Q.I guess one of the things you had to do was you had to invent
some kind of a lie and go over to the Embassy and try to be an
imposter and try to lie about trying to get a visa under another
name first, that was important for you to try to do that first, is that
right? You didn’t want to miss a chance to do that now did you?
A.No, not exactly the case. Actually when I, especially my wife
was sterilized, my family was persecuted and I did not know many
alternatives and eventually my friend help me and obtain the visa
for me and try a visa to come here.
A.R. 179-80.
The IJ inquired further as to why Wang’s wife has not come to the
United States instead of Wang, and then terminated the hearing.
2. Oral Opinion of the Immigration Judge
The IJ’s oral opinion was consistent in tone and substance
with her comments during the preceding hearing.
“[E]mbarass[ed]” to have Wang in her court room, in her oral
opinion, she described Wang as “obsessed” with having a son and
maligned him for “ignor[ing]” his daughter. A.R. 50-51. She
reiterated her horror that Wang was interested only in “his wife’s
ability to reproduce . . . instead of taking responsibility for the
child that is in existence at the present time. That is an outrageous
thing.” A.R. 51. She observed that she was “comfortable denying
asylum to the respondent as a matter of discretion because he’s a
horrible father as far as the Court’s concerned because he pays no
attention to his daughter except to the extent that a picture of her
arm might win the heart of the undersigned so as to have the
respondent granted asylum in this Court.” A.R. 19. She indicated
that she was not bothered “about the respondent’s plight.” Id.10
The IJ found Wang’s wife’s statement of events incredible
in part because she too failed to exhibit the sentiments the IJ was
looking for. The IJ explained that “[b]oth the respondent and his
wife, shocking to the conscious [sic] of the undersigned, make
absolutely no comments about how they wish that they could come
to the United States for careful medical treatment of their first born
daughter who apparently has limited physical mobility in her
arms.” A.R. 36-37. She concluded from this that “the wife’s
statement was obviously designed for her to sign” and untruthful.
A.R. 37. In her disdain for the Wangs, the IJ seriously considered
the possibility that Wang’s wife was sterilized after Wang arrived
in the United States, perhaps to aid his asylum application. A.R.
39.
In her opinion, the IJ affirmed her earlier characterization
of Wang as selfish for refusing to pay the fine for his second child:
“That’s just so horrible that the respondent would allow his parents
to have their pension taken away because the respondent
egotistically doesn’t want to pay a fine that’s imposed upon him
and his family.” A.R. 43-44. The IJ later continued: “In other
words, he thinks it’s more ethical to make his wife and his parents
suffer than it is to pay smugglers.” A.R. 48.
Finding it ridiculous that Wang had not made headway on
the fine while working in the United States, the IJ warned Wang:
“If the respondent thinks that this Court is going to be sympathetic
to the fact that he owes smugglers and he’s worried about his
welfare here, the respondent is sadly mistaken. There is absolutely
nothing noble, not even for 10 seconds in paying a smuggler even
one cent of money when the respondent is here in the federal
building that houses the United States Attorneys’ office” and could
file a statement against the smuggler. A.R. 46. Based on this
reading of the situation, the IJ found “that the respondent’s
problem with the fee is self imposed because the respondent has
chosen to pay a smuggler instead of paying off a fee.” A.R. 52.
In the course of her opinion, the IJ focused repeatedly on
Wang’s actions towards his elder daughter and parents. The IJ
found “infuriating” and “beyond comprehension” that Wang
“never even one time did anything honest” on behalf of his
disabled daughter, i.e., he allegedly failed to pursue free medical
11
treatment for his elder daughter in the United States. A.R. 44.
Accordingly, the IJ chose to humiliate Wang, observing that:
[Wang] [s]pends a lot of time talking about how he can get his
wife’s sterilization reversed so that he could have more kids and
doesn’t spend one line talking about what he might do for his child
that he actually has. For the child that is alive. For the child that
should matter. For the child who apparently can’t even feed
herself and dress herself. That’s a situation that the respondent has
crafted that obviously is troubling to the Court because it certainly
does reveal somebody who acts with selfishness and who acts with
complete disdain for honesty with regard to an application for a
non-immigrant visa, and frankly, with complete lack of concern
about somebody who he has created.
App. 45-46.
The IJ appeared to believe these considerations were
relevant to “the sensibleness of the claim that’s presented,
discretionary factors that this Court feels comfortable to consider
under the Immigration & Nationality Act; and frankly just the law
applicable to the case.” A.R. 38.
3. Appeal to the Board of Immigration Appeals
After the IJ rejected Wang’s claims, he appealed her order
to the BIA. The BIA, addressing only Wang’s asylum claim,
dismissed the appeal in June 2004. In a one-paragraph opinion,
the BIA upheld the IJ’s adverse credibility determination as “not
clearly erroneous” and agreed with her that the events described by
Wang were “inherently implausible.” A.R. 2. As examples of the
“inconsistencies and implausibilities” in Wang’s account, the BIA
wondered why Wang’s wife returned home after successfully
hiding at her parents’ house and why Wang remained in China
after the persecution began. A.R. 2-3. It also noted the absence of
corroborating evidence showing that family planning officials
were penalizing Wang’s parents as a result of Wang’s birth control
policy violation. A.R. 3.
II.
12
Wang now appeals the order of the BIA.2 Where an
opinion issued by the BIA essentially adopts the opinion of the IJ,
we review the latter. See Gao v. Ashcroft, 299 F.3d 266, 271 (3d
Cir. 2002). In this case, the BIA’s brief opinion relies heavily on
the opinion of the IJ. Cf. Alaelua v. INS, 45 F.3d 1379, 1381-82
(9th Cir. 1995) (finding that the BIA adopted the IJ's opinion
where the BIA failed to analyze the relevant factors in a
one-paragraph opinion); Gandarillas-Zambrana v. BIA, 44 F.3d
1251, 1255 (4th Cir. 1995) (reviewing opinion of the IJ directly
where BIA adopted the IJ’s findings and reasoning in a one-
paragraph opinion). Accordingly, we will review the IJ’s conduct
and her opinion to the extent that the BIA relied upon them.
In its short opinion, the BIA did cite three “example[s]” of
Wang’s alleged “inconsistencies”: first, Wang’s wife returned
home after successfully hiding; second, Wang did not immediately
leave China after he was denied a birth permit; and third, Wang
did not corroborate his claim regarding his parents’ pension. None
of those three aspects of Wang’s account amount to
“inconsistencies.” Nor is their “inherent implausib[ility]” evident
to us. Since Wang did explain that his wife came out of hiding in
order to relieve her parents of the burden of hiding her, and
because she wished to return home, and since Wang also explained
that it takes time to arrange sufficient funds to exit China illegally,
it appears that the BIA relied not on the absence of explanation
altogether, but on the perceived absence of “adequate
explanation.” Because Wang’s explanations do not seem facially
unreasonable to us, we conclude that the BIA borrowed that
assessment from the IJ and we will review the IJ’s credibility
determination directly.3
2
As Wang’s arguments challenging the IJ’s, and later the
BIA’s, adverse credibility determinations appear directed to
both the asylum and withholding claims in their respective
orders, we will address both of those claims. However, because
Wang does not meaningfully pursue his CAT claim on appeal,
we deem that claim waived.
3
To the extent that the BIA relied on the alleged absence
of adequate explanation for these choices and claims in the
13
III.
Time and time again, we have cautioned immigration
judges against making intemperate or humiliating remarks during
immigration proceedings. Three times this year we have had to
admonish immigration judges who failed to treat the asylum
applicants in their court with the appropriate respect and
consideration. In a case involving asylum claims similar to those
raised here, Zhang v. Gonzales, 405 F.3d 150, 159 (3d Cir. 2005),
Judge McKee expressed his concerns about the IJ’s apparent
“search for ways to undermine and belittle” the alien’s testimony,
and the possibility that the IJ’s decision “was influenced by his
view of Zhang’s parenting.” Id. at 158-59. Also this year, we
described an IJ’s opinion as “crude” and “cruel,” and noted its
“hostile” tone and sometimes “extraordinarily abusive,” “bullying”
and “extreme[ly] insensitiv[e]” behavior. Fiadjoe v. Attorney
General, 411 F.3d 135, 144, 146, 154, 155 (3d Cir. 2005). In that
case, we concluded that “[t]he conduct of the IJ itself would
require a rejection of his credibility finding.” Id. at 155. In
Korytnyuk v. Ashcroft, 396 F.3d 272 (3d Cir. 2005), we requested
that a case be reassigned upon remand and required that the BIA
take into explicit consideration “the extreme hostility the IJ
exhibited toward [the petitioner] throughout the hearing,
commencing at its very inception, as well as the inevitable effect
upon an individual seeking asylum of an interrogation conducted
in so intimidating a manner by a government official supposed to
be a neutral arbiter.” Id. at 287 n.20 (internal quotation omitted).
A few years ago, in Dia v. Ashscroft, we concluded that an IJ’s
adverse credibility determination was not supported by substantial
evidence because “[h]er opinion consist[ed] not of the normal
drawing of intuitive inferences from a set of facts, but, rather, of
a progression of flawed sound bites that [gave] the impression that
she was looking for ways to find fault with Dia’s testimony.” 353
record, such reliance on the record was misplaced in this case.
As we discuss below, the proceedings before the IJ were
conducted in too intimidating and hostile a manner to afford
Wang a meaningful opportunity to develop the factual
predicates of his claim, yet alone to respond to any legitimate
concerns about his claim.
14
F.3d 228, 250 (3d Cir. 2003) (en banc). Thus, we have repeatedly
sought to remind IJs of their duty to remain neutral and impartial
when they conduct immigration hearings. See Abdulrahman, 330
F.3d at 596. We have also noted that “that obligation is especially
important where, as in this class of cases, the determinations of the
trier of fact are subjected to particularly narrow appellate scrutiny.”
Id. at 599; see also Alexander v. Primerica Holdings, Inc., 10 F.3d
155, 166 (3d Cir. 1993) (“When the judge is the actual trier of fact,
the need to preserve the appearance of impartiality is especially
pronounced.”).
A disturbing pattern of IJ misconduct has emerged
notwithstanding the fact that some of our sister circuits have
repeatedly echoed our concerns. In Reyes-Melendez v. INS, the
Ninth Circuit held that an IJ violated an alien’s due process rights
by abandoning her role as a neutral factfinder. 342 F.3d 1001,
1007 (9th Cir. 2003). As that Court described, in that case too the
IJ accused the alien of “moral impropriety” and “became
aggressive and offered a stream of non-judicious and snide
commentary.” Id. There also the IJ was rebuked for her “sarcastic
commentary and moral attacks” on the alien. Id. In another case,
where an IJ appeared to rest an adverse credibility determination
at least in part on the fact that the alien had not married the mother
of his children, the Ninth Circuit specifically warned that IJs may
not use the “personal choices that an asylum applicant has made
concerning marriage, children, and living arrangements” to
evaluate an alien’s credibility. Damaize-Job v. INS, 787 F.2d
1332, 1337 (9th Cir. 1986); see also Abovian v. INS, 219 F.3d
972, 979 (9th Cir. 2000) (“Non-evidence based assumptions about
conduct in the context of other cultures must be closely
scrutinized.”) (citations omitted). In still another case, the Ninth
Circuit rejected an IJ’s credibility determination because his
assessment of certain domestic violence allegations were “skewed
by prejudgment, personal speculation, bias, and conjecture.”
Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1054 (9th Cir. 2005);
see also Hassan v. Gonzales, 403 F.3d 429, 437 (6th Cir. 2005)
(concluding that while IJ’s language was “brusque” and less than
“artful,” alien received due process).
In yet another case of improper conduct by an IJ, the
Seventh Circuit refused to uphold an adverse credibility
15
determination by an IJ who aggressively questioned an asylum
applicant based on his own assumptions about Catholicism.
Huang v. Gonzales, 403 F.3d 945, 950 (7th Cir. 2005). The Court
found that the IJ had mischaracterized the alien’s testimony and
exceeded his proper role. Id. at 950-51. Earlier, in Iliev v. INS,
127 F.3d 638 (7th Cir. 1997), the Seventh Circuit explained why
it is so important that immigration hearings are conducted without
even the appearance of partiality: “In a country built on the dreams
and accomplishments of an immigrant population, a particularly
severe wound is inflicted on [the principle that anyone who
appears in an American courtroom is treated with dignity and
respect] when an immigration matter is not conducted in accord
with the best of our tradition of courtesy and fairness.” Id. at 643.
The general principle invoked by the Seventh Circuit has
long been established by the Supreme Court. “[N]o person [may]
be deprived of his interests in the absence of a proceeding in which
he may present his case with assurance that the arbiter is not
predisposed to find against him.” Marshall v. Jerico, Inc., 446 U.S.
238, 242 (1980). That assurance is absent – and judicial conduct
improper – whenever a judge appears biased, even if she actually
is not biased. See In re Antar (SEC v. Antar), 71 F.3d 97, 101 (3d
Cir. 1995); cf. Liteky v. United States, 510 U.S. 540, 548 (1994).
Public confidence in the judicial system turns on “the appearance
of neutrality and impartiality in the administration of justice.”
LaSalle Nat’l Bank v. First Conn. Holding Gr., LLC XXIII, 287
F.3d 279, 292 (3d Cir. 2002) (citing Primerica Holdings, Inc., 10
F.3d at 157). Thus, even if the IJ was not actually biased – and we
do not speculate here as to her state of mind – the “mere
appearance of bias” on her part “could still diminish the stature”
of the judicial process she represents. Clemmons v. Wolfe, 377
F.3d 322, 327 (3d Cir. 2004). In other words, “justice must satisfy
the appearance of justice.” Offutt v. United States, 348 U.S. 11,
13 (1954); see also Peters v. Kiff, 407 U.S. 493, 502 (1972).
Nor were the IJ’s editorial comments excused on the theory
that her apparent bias arose in the course of the immigration
hearing itself, rather than from an extrajudicial predisposition
against Wang or all similarly situated asylum applicants. First, the
IJ’s comments seem related to her broader views about family
obligations. Second, even if the IJ was reacting spontaneously to
16
Wang’s testimony, her attitude still may be characterized as “‘bias”
or “prejudice” if her comments are so antagonistic or “so extreme
as to display clear inability to render fair judgment.” Liteky, 510
U.S. at 551, 555. We have previously expressed our disapproval
of all “‘wrongful or inappropriate’ bias, regardless of whether the
improper bias arises from evidence adduced at trial or from some
extraneous source.” United States v. Bertoli, 40 F.3d 1384, 1412
(3d Cir. 1994).
In light of the clear standards governing immigration
proceedings, outlined in the above cases, we are sorely
disappointed that the IJ here chose to attack Wang’s moral
character rather than conduct a fair and impartial inquiry into his
asylum claims. The tone, the tenor, the disparagement, and the
sarcasm of the IJ seem more appropriate to a court television show
than a federal court proceeding. But we hasten to emphasize that
our concerns about the IJ’s opinion are not limited to her choice of
words. Substantively, many of the issues addressed by the IJ at
length, and to which she gave substantial weight, were irrelevant
to Wang’s asylum, withholding, and CAT claims. Cf. Reyes-
Melendez, 342 F.3d at 1008 (“[T]he IJ’s remarks evince her
reliance of improper considerations.”). The factual issue before
the IJ was whether Wang’s wife had been forcibly sterilized and
whether, if he returned to China, the Chinese government would
inflict improper punishment on him for leaving the country. The
IJ was not called upon to determine whether Wang was a good
father and son. See Zhang, 405 F.3d at 160 (McKee, J.,
concurring) (“The issue before the Judge was, after all, whether
Zhang qualified as a ‘refugee,’ not the quality of her parenting, or
her presence in the home.”).
While the IJ explicitly deemed her broad character
judgments relevant to her decision, they were not.4 “The personal
4
We note that even if some of these factors were
appropriately considered in the exercise of discretion with
respect to Wang’s asylum claim, there is no analogue to this
discretion in the context of mandatory withholding relief. See
INS v. Doherty, 502 U.S. 314, 332-33 (1992) (Scalia, J.,
concurring in part and dissenting in part).
17
choices that an asylum applicant has made concerning marriage,
children, and living arrangement should not be used to evaluate the
applicant’s credibility concerning his claims of persecution, unless
they reflect some inconsistency in a relevant portion of the
applicant’s testimony.” Damaize-Job, 787 F.2d at 1337; see also
Dia, 353 F.3d at 249 (adverse credibility determinations are
“appropriately based on inconsistent statements, contradictory
evidences, and inherently improbable testimony in view of the
background evidence on country conditions”) (citation omitted).
In summary, the IJ’s opinion in this case was highly
improper for both its contemptuous tone and its consideration of
personal issues irrelevant to the merits of Wang’s asylum claim.
IV.
We now have to confront the consequences of the IJ’s
intemperate remarks and her reliance on irrelevant character
evaluations. Wang argued before the BIA that the IJ “apparently
misguided her emotions towards the respondent and blinded her
own judgment by being emotional and unprofessional.” Before
this Court, Wang again points to a number of emotionally charged
and otherwise irrelevant comments by the IJ, littered throughout
her opinion. Wang does not raise a Due Process claim with
respect to the IJ’s partiality but he does suggest that her apparent
negative attitude toward Wang, rather than relevant facts on the
record, motivated her adverse credibility determination.
Generally, “if the IJ’s conclusion is not based on a specific,
cogent reason, but, instead, is based on speculation, conjecture, or
an otherwise unsupported personal opinion, we will not uphold it
because it will not have been supported by such relevant evidence
as a reasonable mind would find adequate. In other words, it will
not have been supported by substantial evidence.” Dia, 353 F.3d
at 250. As a result of the pervasive influence of the IJ’s unduly
harsh character judgments, we cannot credit her adverse credibility
determination in this case.
“[A]n IJ’s adverse credibility determination does not pass
muster under the substantial evidence rubric when it is not
supported by an adequate explanation of the IJ’s reasoning.” Id.
at 254. In SEC v. Chenery Corp., the Supreme Court held that a
18
“simple but fundamental rule of administrative law [is] that a
reviewing court, in dealing with a determination or judgment
which an administrative agency alone is authorized to make, must
judge the propriety of such action solely by the grounds invoked
by the agency.” 332 U.S. 194, 196 (1947). The corollary to this
rule is that the basis of an administrative action “must be set forth
with such clarity as to be understandable.” Id. at 241; see also Dia,
353 F.3d at 250 (“[P]erhaps because of the difficult nature of these
types of cases, and the critical importance of resolving them
properly–for the stakes are very high indeed–the soundness of the
basis of the decision making, even if experiential or logical in
nature, must be apparent.”). Although we ask, in evaluating
whether an agency determination is supported by substantial
evidence, “whether a reasonable fact finder could make such a
determination based upon the administrative record,” id. at 249, we
will not supply the basis for its decision where appropriate reasons
are not set forth by the administrative agency itself, see id. at 256
n. 25. See also SEC v. Chenery Corp., 318 U.S. 80, 95 (1943)
(“an administrative order cannot be upheld unless the grounds
upon which the agency acted in exercising its powers were those
upon which its action can be sustained.”).
Under these principles, it is clear that the IJ’s opinion
cannot support an adverse credibility determination. See Fiadjoe,
411 F.3d at 155 (“The conduct of the IJ by itself would require a
rejection of his credibility finding.”); cf. Dia, 353 F.3d at 251(describing IJ’s opinion as “aggregation of empty rationales that
devolve into an unsupported finding of adverse credibility”). As
in Dia, “the IJ did not rely on her personal observations of Dia’s
demeanor or any other observations to which we must accord” an
especially high degree of deference. Id. at 252 n.23. Instead, the
IJ appears to have relied on a number of irrelevant personal
judgments, her repetitive recitation of which we deplore.
Moreover, the IJ’s conduct so tainted the proceedings below that
we cannot be confident that Wang was afforded the opportunity
fully to develop the factual predicates of his claim. We stress that
we have only considered the IJ’s findings to the extent that the
BIA relied upon them. Based on this review, we conclude that we
cannot credit the IJ’s conclusions as to Wang’s credibility and find
that her denial of Wang’s claims was unsupported by substantial
19
evidence.
V.
For the foregoing reasons, we will grant the petition for
review. In doing so, we note that, “while we recognize that
assignment of an IJ is within the province of the Attorney General,
if on remand an IJ’s services are needed, we believe the parties
would be far better served by the assignment [of] [these]
proceedings [to] a different IJ.” Korytnyuk, 396 F.3d at 287 n.20
(internal quotation omitted).
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