Zhou, Mei H. v. Gonzales, Alberto , 230 F. App'x 588 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 17, 2007*
Decided April 18, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 06-3475
MEI HUA ZHOU Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A78 015 948
ALBERTO R. GONZALES,
Respondent.
ORDER
Mei Hua Zhou asserts that the Chinese government forced her to undergo an
abortion in the eighth month of her pregnancy and that she fears involuntary
sterilization, detention, and physical abuse if she returns to China. Zhou applied
for asylum, withholding of removal, and protection under the Convention against
Torture, but the Immigration Judge denied her relief after finding her testimony
*
On March 12, 2007, we granted the petitioner’s motion to waive oral
argument. Therefore, the petition for review is submitted on the briefs and the
record. See Fed. R. App. P. 34(f).
No. 06-3475 Page 2
not credible and faulting her for not submitting hospital records to corroborate her
abortion account. The Board of Immigration Appeals affirmed, and Zhou petitions
for review. We grant the petition because the IJ’s adverse credibility determination
is not supported by substantial evidence and he demanded corroborating evidence
without explaining if that evidence would have been available to Zhou.
Zhou arrived in the United States in July 2002 at the Los Angeles
International Airport, but she did not present a valid passport and visa, and
consequently an immigration officer placed her under oath and interviewed her at
the airport. This interview was conducted in Mandarin, although Zhou is
unfamiliar with this language and speaks the Fuzhou dialect. During this
interview, Zhou stated that she flew in from London, where she had been on
vacation. There, by chance encounter on the street, she met a “Brother Li” who
convinced her to apply for asylum in the United States and for $3,000 provided her
with a false passport to get there. Zhou then added that she left China to avoid an
arranged marriage, but she did not mention undergoing a forced abortion. She was
briefly detained following this interview and eventually placed in removal
proceedings.
Zhou later conceded that she is removable. But at a June 2003 preliminary
hearing before an immigration court in New York, she, with the help of counsel,
filed an application for asylum claiming political persecution on account of her
opposition to China’s coercive population control program. In an affidavit attached
to this application, Zhou explained that in 1994 she became pregnant but was not
allowed to marry the father because he was below the legal age of consent for
marriage. Having a child out of wedlock was prohibited by the family planning
laws, so Zhou hid at her sister and brother-in-law’s house awaiting the birth of her
child. But according to her affidavit, four or five family planning officials came to
her sister’s home eight months into her pregnancy. She was there alone, and the
officials dragged her to a hospital and forcibly aborted her pregnancy by giving her
an injection that caused “horrible pain” and induced her to deliver a dead fetus.
Zhou recounted that she and her boyfriend still married once they were old enough,
but her husband lost his job as punishment for their attempt to flout the family
planning policy. He left for the United States in search of work and they divorced
following a four-year separation. Shortly after the divorce, Zhou decided to flee
from China herself.
At the June 2003 preliminary hearing Zhou also conceded through a Fuzhou
interpreter that she had lied about traveling to London before arriving in Los
Angeles. Instead, she said that a smuggler named Li, whom she met in Fuzhou
City, told her to inform immigration officials that she traveled through London.
But she reiterated that she had been forced to terminate her pregnancy.
No. 06-3475 Page 3
After filing her asylum application, Zhou married another man and gave
birth to her first child. She then moved to Indiana, and venue was transferred to
the immigration court in Chicago. Before her merits hearing, Zhou filed additional
documents, including a supplemental asylum application adding that she fears
being forcibly sterilized if returned to China since she now has a child. She also
submitted an affidavit from her father confirming that she hid at her sister’s home
in hopes of avoiding family planning officials. He stated that he found out about the
abortion only after it occurred, and that all he could do “was take her home after
she was discharged from the hospital.” She also submitted an affidavit from her
brother-in-law confirming that she hid at his home during her pregnancy. Both
affidavits corroborate the details of her account, including the date of the abortion
and the hospital where the procedure occurred.
During her merits hearing Zhou testified consistently with her asylum
application and the affidavits provided by her family. She explained, through a
Fuzhou interpreter, that she did not know that undergoing a forced abortion could
establish asylum eligibility until she was detained following her airport interview.
She also added that she wants to have two more children and believes that, if she
returns to China, she will be forcibly sterilized before she can. Zhou, though,
reverted back to the story she gave at the airport about meeting Brother Li in
London. But rather than cross-examine her about her earlier recantation of this
account, the government pointed out that Zhou was now saying that she decided to
apply for asylum only after being detained in the United States, which conflicted
with her statement during the airport interview that Brother Li convinced her to
apply for asylum while she was in London.
The IJ denied Zhou’s asylum application as untimely. Zhou had filed her
application with the immigration court in New York within a year of her arrival,
but the IJ reasoned that it was untimely since the Chicago immigration court did
not receive the application until after the one-year deadline. The IJ went on to
evaluate Zhou’s eligibility for withholding of removal but denied that relief after
finding her not credible. The IJ reasoned that Zhou’s testimony conflicted with
general background information on China in two ways. First, the IJ explained, the
2003 Department of State Country Report on Human Rights Practices in China
identifies a “social compensation fee” as the punishment for a single woman who
bears a child. Secondly, the IJ took administrative notice of the 2004 Profile of
Asylum Claims and Country Conditions, which recounts that United States officials
visiting the province of Fujian have “found that coercion through public and other
pressure has been used, but they do not find any cases of physical force employed in
connection with abortion.” The IJ also rejected as implausible Zhou’s testimony
that she met Brother Li by chance in London and noted that Zhou testified
inconsistently about when she decided to apply for asylum. Finally, the IJ
concluded that Zhou failed to provide “adequate support” for her claim of past
No. 06-3475 Page 4
persecution since she “never obtained any evidence that she was forcibly aborted”
like a “record of a hospital stay.” The IJ reasoned that Zhou could have obtained
such a document, but he pointed to no factual support for this conclusion and failed
to mention the affidavits from Zhou’s father and brother-in-law.
Zhou appealed. The BIA rejected the IJ’s conclusion that Zhou’s application
was untimely, but upheld the IJ’s adverse credibility finding and denied her
applications for asylum, withholding, and relief under the CAT. The BIA focused on
the inconsistencies in Zhou’s testimony about her trip to London and how she
learned about the asylum process. The BIA acknowledged that these discrepancies
are “perhaps not directly pertinent to her claim of forced abortion,” but nonetheless
found them “not minor.”
Zhou now contends that none of the IJ’s reasons for rejecting her testimony
are supported by substantial evidence. The IJ’s adverse credibility finding is
critical because her testimony if believed would have demonstrated that she
suffered past persecution. See 8 U.S.C. § 1101(a)(42); Dong v. Gonzales, 421 F.3d
573, 578 (7th Cir. 2005) (“[O]ne forced abortion is sufficient to show persecution”);
Dawoud v. Gonzales, 424 F.3d 608, 612 (7th Cir. 2005) (noting that applicant’s
credible testimony can sustain burden to prove asylum eligibility). And a finding of
past persecution shifts to the government the burden of rebutting the presumption
that an applicant has a well-founded fear of future persecution. Bace v. Ashcroft,
352 F.3d 1133, 1137 (7th Cir. 2003). Since the BIA approved with some additions
the IJ's decision, that decision, as supplemented, is the basis for our review. See
Prela v. Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005). We review the
decision—including the adverse credibility finding—under the substantial evidence
standard. Id. We will overturn an IJ’s adverse credibility determination if it is not
supported by “specific, cogent reasons” that “bear a legitimate nexus to the finding.”
Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006) (citations and quotations
omitted).
Zhou contends, and we agree, that the IJ erroneously discounted her
testimony on account of perceived conflicts with general background reports
released by the Department of State. The contradictions between Zhou’s account
and the reports are illusory; indeed, the relevant Department of State reports tend
to support Zhou’s testimony. The reports on which the IJ relied summarize events
that occurred in 2003, seven years after the relevant time period. According to the
country report for 1995, “Chinese officials acknowledge that there are instances of
forced abortions,” COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1995:
CHINA, U.S. DEPT. OF STATE 581 (1996), and the same report for 1996 notes that
there were “credible reports that several women were forced to undergo abortions of
unauthorized pregnancies in Fujian,” COUNTRY REPORTS ON HUMAN RIGHTS
PRACTICES FOR 1996: CHINA, U.S. DEPT. OF STATE (1997), available at
No. 06-3475 Page 5
http://www.state.gov/www/global/human_rights/1996_hrp_report/china.html (last
visited March 27, 2007). See Giday v. Gonzales, 434 F.3d 543, 556 (7th Cir. 2006)
(taking judicial notice of Department of State reports); Medhin v. Ashcroft, 350 F.3d
685, 689-90 (7th Cir. 2003) (same).
Nor can the IJ depend on country reports suggesting that China does not
generally force women to abort their pregnancies to refute Zhou’s consistent
testimony of undergoing a forced abortion, especially when those reports do not rule
out the possibility that forced abortions occur. We rejected this very reasoning in
Dong, 421 F.3d at 578; see also Kllokoqi v. Gonzales, 439 F.3d 336, 343 (7th Cir.
2006); Zhang v. Gonzales, 434 F.3d 993, 1000 (7th Cir. 2006); Lin v. Ashcroft, 385
F.3d 748, 754 (7th Cir. 2004); Bace, 352 F.3d at 1139 (noting that it “would be
improper to find that a witness’s testimony about specific events could be
‘contradicted’ by a generalized State Department report broadly discussing
conditions in the applicant’s country of origin”). The country report for 2003 does
state that a social compensation fee is the official punishment for a single woman
who bears a child out of wedlock, but that same report acknowledges that “intense
pressure to meet birth limitation targets set by government regulations has
resulted in instances of local birth planning officials reportedly using physical
coercion to meet government goals.” And although the profile of asylum claims for
2004 recounts that the Department of State found no proof that officials in Fujian
currently force women to abort their pregnancies, the report acknowledges that the
“use of physical coercion is difficult to document, even for government authorities.”
Even still, the profile notes that the press has reported the continued use of forced
abortions in certain parts of China. Neither report rules out the possibility that
forced abortions occur in China; thus, the IJ erred in using the reports to reject
Zhou’s account.
Zhou also maintains that the IJ improperly denied relief based on her
inability to produce documentary evidence of her forced abortion, like a record of
her hospital stay. The IJ declared that such a hospital record is “information that
[Zhou] could have obtained and did not,” but did not explain this conclusion. We
must defer to an IJ’s determination that corroborating evidence is available, see
REAL ID Act of 2005 § 101(e), 8 U.S.C. § 1252(b)(4), but the “precondition to
deference is that the immigration judge explain (unless it is obvious) why he thinks
corroborating evidence, if it existed, would have been available to the alien.”1 Hor v.
1
Under the REAL ID Act of 2005, Pub. L. No. 109-13, § 101(a)(3)(B)(ii), 119
Stat. 231, an IJ may require an otherwise credible applicant to provide
corroborating evidence unless the applicant does not have the evidence and cannot
reasonably obtain it. This provision, unlike § 101(e), which cabins our scope of
(continued...)
No. 06-3475 Page 6
Gonzales, 421 F.3d 497, 501 (7th Cir. 2005); see also Diallo v. Gonzales, 439 F.3d
764, 766 (7th Cir. 2006); Zhang, 434 F.3d at 998-99. Here, the IJ failed to meet this
precondition; he did not explain why he thought the hospital would document a
forced abortion or an associated stay at the hospital, let alone give Zhou a copy of
such a record. Indeed, since Zhou’s hearing we have repeatedly held that the
absence of such a hospital record provides no reason to doubt an applicant’s account
of a forced abortion. See Kwok v. Gonzales, 455 F.3d 766, 771 (7th Cir. 2006);
Zhang, 434 F.3d at 999-1000; Lin, 385 F.3d at 753-54. And we have even upheld an
adverse credibility finding because an applicant presented the same type of record
that the IJ expected Zhou to produce; we observed that the existence of such a
certificate suggests that the applicant underwent an abortion voluntarily. See
Huang v. Gonzales, 453 F.3d 942, 947 (7th Cir. 2006).
We also are troubled that the IJ concluded that Zhou had “not really provided
adequate support” for her account, but failed to mention the affidavits from her
father and brother-in-law. Both affidavits corroborate Zhou’s consistent testimony,
including the details of when the abortion took place, where the family planning
officials apprehended Zhou, and at which hospital the procedure occurred. Zhou’s
father confirmed that he picked Zhou up from the hospital following the abortion,
and her brother-in-law confirmed that she hid at his home during her pregnancy to
avoid a forced abortion by the family planning officials. See Ayi v. Gonzales, 460
F.3d 876, 883-84 (7th Cir. 2006) (reversing credibility finding that disregarded
asylum applicant’s evidence without explanation); Gjerazi, 435 F.3d at 813 (“[A]n
applicant is entitled reasoned analysis, not one which wholly ignores or disregards
relevant, probative evidence.”); Sosnovskaia v. Gonzales, 421 F.3d 589, 593 (7th Cir.
2005) (holding that it is improper for IJ to ignore letter from alien’s mother that
corroborates asylum claim).
Finally, Zhou contends that the remaining reasons that the IJ discredited her
testimony do not go to the heart of her asylum claim, and therefore cannot form the
basis of the adverse credibility finding. Misrepresentations that do not relate to the
basis of an asylum applicant’s alleged fear of persecution can serve as “a factor in
the credibility calculus,” Balogun v. Ashcroft, 374 F.3d 492, 504 (7th Cir. 2004)
(emphasis in original), but an adverse credibility finding cannot rest solely on such
minor, immaterial inconsistencies, see Adekpe v. Gonzales, No. 05-3951, 2007 U.S.
App. LEXIS 5840, at *16, *24 (7th Cir. Mar. 14, 2007) (vacating credibility
determination based on inconsistencies that do not “go to the heart of the asylum
1
(...continued)
review, affects only asylum applications filed after May 11, 2005, and therefore did
not apply at Zhou’s hearing before the IJ. See Dawoud v. Gonzales, 424 F.3d 608,
613 (7th Cir. 2005).
No. 06-3475 Page 7
applicant’s claim”); Rodriguez Galicia v. Gonzales, 422 F.3d 529, 537 (7th Cir. 2005)
(same); Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir. 2003) (same).
The BIA acknowledged that the remaining discrepancies—Zhou’s
inconsistent testimony regarding whether she obtained false documents to enter the
United States in London or China and whether she decided to apply for asylum en
route to the United States or once she was detained here—were “perhaps not
directly pertinent to her claim of forced abortion,” and we agree. See Rodriguez
Galicia, 422 F.3d at 537-38 (noting that inconsistencies regarding how asylum
applicant obtained false passport to enter the United States were irrelevant to
heart of asylum claim); Dong, 421 F.3d at 579 (noting that “use of false documents
to enter the United States has no bearing on whether [applicant] was forced to
terminate her pregnancy”). In fact, Zhou testified consistently about the
circumstances of her forced abortion in an affidavit attached to her asylum
application, during a preliminary hearing, and during her merits hearing. The
immaterial inconsistencies are the only remaining basis articulated by the IJ for his
adverse credibility finding, and although the IJ did not err in considering them,
they cannot alone justify that finding. Having concluded that the other reasons
given by the IJ to discredit Zhou’s testimony are unsupported, we cannot affirm the
IJ’s decision on this weak ground. See Dong, 421 F.3d at 579 (concluding that
inconsistent statements are valid reasons for discrediting alien, but alone are too
weak to save the IJ’s otherwise undermined adverse credibility finding); Georgis v.
Ashcroft, 328 F.3d 962, 969-70 (7th Cir. 2003) (refusing to defer to IJ's credibility
determination after concluding that five out of the IJ’s six reasons were
unsupported).
Accordingly, the petition for review is GRANTED, the order of removal is
VACATED, and this case is REMANDED for further proceedings.