Zhao v. Reno: 2d Circuit Finds BIA Abused Discretion, Remands "One Child Policy" Asylum Case

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

ZHAO V. RENO: 2D CIRCUIT FINDS BIA ABUSED DISCRETION, REMANDS "ONE CHILD POLICY" ASYLUM CASE
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

In the case of a Chinese national who applied for asylum based on his claim that he was a victim of China's "one family, one child" policy, the Second Circuit Court of Appeals has reversed a decision by the Board of Immigration Appeals to deny the applicant's motion to reopen and has remanded the case for further proceedings. The court found that the BIA had abused its discretion and had acted arbitrarily and capriciously in denying the asylum applicant's motion.

The asylum applicant is Ke Zhen Zhao, a citizen of the People's Republic of China who arrived in the U.S. with a false passport in February 1992. After questioning him, the Immigration and Naturalization Service placed him in exclusion proceedings.

Zhao applied for asylum in September 1992. In support of his asylum application, Zhao filed copies of several documents, including a family planning registration card indicating that his wife had undergone a tubal ligation. At his exclusion hearing in February 1994, he testified that he had worked in construction for a private company in the Fujian Province of China. His wife became pregnant four times during their marriage, but because she suffered a miscarriage and aborted one child, had borne only two sons. When he was asked at his hearing whether he could have more children, Zhao answered that his wife had been sterilized in September 1989. He said she underwent the sterilization after having been ordered to by Chinese government authorities.

Zhao claimed that he had voiced opposition to his wife's sterilization and promised not to have any more children, but he said the officials insisted that his wife be sterilized. Zhao testified that prior to his wife's sterilization, he was fined 20,000 yuan, and he stated that officials attempted to arrest him for his failure to pay the fine and because he had not immediately agreed to his wife being sterilized. Zhao escaped arrest by leaving Fujian before his wife underwent sterilization.

The immigration judge found Zhao's testimony to be not credible. The IJ pointed out that Zhao's written asylum application made no mention that Zhao's wife had undergone a sterilization procedure, even though he had submitted documentation showing she had undergone an oviduct ligation.

Zhao filed a timely appeal with the BIA in March 1994. The BIA did not issue its decision dismissing the appeal until August 1998. The BIA dismissed the appeal despite the fact that the law had changed in 1997, when the BIA ruled in another case that an individual whose spouse was forcibly sterilized could establish that he had suffered past persecution on account of political opinion. See In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA June 4, 1997). Despite the fact that Zhao's hearing testimony had focused on his wife's sterilization, the BIA summarily stated that it found substantial evidence to support the IJ's adverse credibility finding and affirmed the IJ's decision.

Zhao filed a motion asking the BIA to remand his case to the IJ. The BIA returned that motion because the case was no longer pending before it but advised Zhao to file a motion to reopen or reconsider. Zhao then filed a motion to reconsider on the basis of ineffective assistance of counsel and the production of additional evidence of his wife's sterilization in the form of radioactive dye tests performed in May 1998.

In its decision denying the motion to reconsider, the BIA first reasoned that because Zhao's present motion did not identify a legal or factual error in the ruling dismissing his appeal, the proper motion was not one for reconsideration. It therefore recast the motion as one to reopen his case. The BIA then denied the ineffective assistance claim. With respect to the radiographic dye tests, the BIA held that Zhao's wife was already sterilized when he presented his claims to the immigration judge and the "Immigration Judge so found." The BIA concluded that Zhao could not buttress his claim with a subsequent test when that test could have been conducted earlier and presented at the former hearing. Thus, his motion to reopen was denied. Zhao then filed a petition for review of the denial.

On appeal, the Second Circuit concluded that the BIA had properly re-characterized Zhao's motion to reconsider as a motion to reopen. As Zhao's case required a review of a motion to reopen, the appellate court could reverse the BIA only if it found an abuse of discretion. An abuse of discretion may be found in those circumstances where the BIA's decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.

In considering Zhao's claim, the appellate court reviewed the case law on cases involving China's strict family planning policy. It noted that as a result of the decision in In re Matter of Chang, 20 I. & N. Dec. 38 (BIA 1989), asylum applications based on claims arising from the family planning policy had been routinely denied except in instances where, according to the Second Circuit's decision, applicants produced "evidence that persecution would be or was taken for a reason other than general population control" [sic]. However, in 1996, Congress added the following language to the definition of "refugee": "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 [be] 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." INA § 101(a)(42).

Subsequently, the BIA ruled in X-P-T, 21 I. & N. Dec 634 (BIA 1996), that individuals forced to undergo sterilization pursuant to population control programs should be deemed to have suffered past persecution on account of political opinion and are entitled to a presumption of a well-founded fear of future persecution. X-P-T was followed by In re C-Y-Z, 21 I. & N. Dec 915 (BIA 1997), holding that an individual can establish past persecution and become entitled to the presumption of a well-founded fear of future persecution if he can show that his spouse was forced to undergo sterilization.

Zhao based his claim that the BIA had abused its discretion in denying his motion to reconsider on the fact that, regarding the issue of his wife's sterilization, the BIA simply stated that the "Immigration Judge so found." Zhao contrasted that ambiguous "finding" with the ruling stating that Zhao's application could not be buttressed with the results of radioactive dye tests that the BIA concluded could have been conducted earlier and presented at the 1994 exclusion hearing. Zhao insisted that once the BIA recognized that his wife had been sterilized, it was obligated to apply the IIRIRA and the holding of C-Y-Z.

The Second Circuit agreed with Zhao and stated that no matter how one construed the BIA's reference to what the IJ had "found" at the exclusion hearing, it was an abuse of discretion to deny Zhao's motion to reopen. The court held that if the BIA had considered the fact of Zhao's wife's sterilization established, it should have explained why Zhao's case would not be reopened in light of In re C-Y-Z. The court proceeded to analyze the similarities between Zhao's case and C-Y-Z and ultimately concluded that, if the BIA had accepted that Zhao's wife was sterilized, it abused its discretion by not reaching the same conclusion in his case as it did in C-Y-Z. It cited Vargas v. INS, 938 F.2d 358, 362 (2d Cir. 1991), for the proposition that application of agency standards in a plainly inconsistent manner across similar situations evinces a lack of rationality as to be arbitrary and capricious.

The government argued that no finding had been made regarding the sterilization. It also argued that in his motion to reopen Zhao was required to show that the evidence he sought to offer was not available at his first hearing, and that he failed to explain why the tests results could not have been obtained earlier. The court agreed with the government that the transcript of the IJ's decision contained no explicit finding that Zhao's wife was sterilized. The court concluded, however, that the BIA had nevertheless abused its discretion. The court reasoned that if the BIA did not acknowledge that Zhao had already established that his wife had undergone a tubal ligation, it should have afforded him an evidentiary hearing so that he could introduce his new evidence.

The court of appeals noted that the BIA, on its own accord, converted Zhao's motion to reconsider to a motion to reopen. It also highlighted the fact that the BIA never afforded Zhao an opportunity to provide an explanation as to why the dye tests were not previously obtainable. Such an explanation would have been unnecessary with a motion to reconsider but was critical to a motion to reopen. In failing to provide that opportunity, the court held, the BIA then abused its discretion by summarily stating that the tests could have been conducted earlier and presented at the former hearing. The court held that because the change to the definition of "refugee" and the decision in C-Y-Z came much later than Zhao's exclusion hearing, the significance of the tests would not have been known at the time of Zhao's exclusion hearing. With these observations, the court concluded that the BIA improperly engaged in speculation when it concluded that the tests on Zhao's wife could not have been conducted at the time of the original hearing.

The court further stated that the BIA's analysis, which addressed Zhao's new evidence in two sentences, amply demonstrated that the BIA created controversy and confusion. Citing Anderson v. McElroy, 953 F.2d 803, 806, the court stated, "Failure to explain a decision adequately provides a ground for reversal." Accordingly, the court reversed the denial of the motion to reopen and remanded the case to the BIA.

Zhao v. Reno, 265 F.3d 83 (2d Cir. 2001).