Argued March 3, 2015.
Petition for Review of an Order of the Board of Immigration Appeals. No. A200 025 604.
For Tie Xia Chen, Petitioner: James Charles Ten Broeck Jr., Attorney, Chicago Immigration Advocates, Chicago, IL.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: Tracie N. Jones, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC.
Before POSNER, KANNE, and TINDER, Circuit Judges.
Tie Xia Chen, a Chinese citizen, seeks relief from removal on the ground that he will be persecuted for violating his country's one-child policy. He petitions for review of the Board's denial of his motion to reopen. In that motion, Chen argued that his attorneys had mishandled his case by neglecting to offer available evidence that would have resolved deficiencies in his asylum application identified by an immigration judge. Because the Board largely ignored this potentially meritorious argument, its ruling is procedurally defective, so we grant the petition and remand for further proceedings.
Chen entered the country in 2005. The Department of Homeland Security now seeks to remove him on the ground that he is " an alien present in the United States without being admitted or paroled." See 8 U.S.C. § 1182(a)(6)(A)(i). Conceding removability, Chen has applied for asylum, withholding of removal, and relief under the Convention Against Torture. He contends that Chinese authorities will persecute him for refusing, by having two children, to follow the one-child policy.
At his removal hearing Chen testified about his claim of persecution. He explained that he fled China after he was arrested and beaten in his home province of Fujian when officials found out that his wife was pregnant with their second child. Police detained, interrogated, and beat him for six months in 2004 and early 2005 as they tried to find the whereabouts of his wife. The police released him after his parents paid 3,000 yuan (about 480 dollars), on the condition--as reflected in written notices--that his wife undergo forced sterilization or they pay a fine of 20,000 yuan (approximately 3,200 dollars) to register the son. He testified that his wife has refused to be sterilized. (His written application for relief from removal, in one translation from Mandarin, implied that his wife has already been sterilized.) Chen fled the country without paying any fine, and his wife and daughter now hide from authorities at a relative's house;
their son lives with Chen's parents. Chen explained that he could not hide in China and still find work. (When a border agent detained him temporarily in Texas, Chen similarly told the agent that he had come to this country to seek work.) Chen's brother's adoptive father, Patrick Meredith, also testified at the hearing. He said that he met Chen's two children when visiting China in 2005.
During the removal proceedings, the case boiled down to whether Chen in fact has two children. His first attorney, Marian Ming, requested from Chen and submitted to the IJ documents to corroborate Chen's claim that he has two children. These included photographs of Chen's children, notices from the birth control office threatening sterilization or a fine, and birth certificates for Chen (translated into Spanish), his wife, and his son and daughter. The Forensic Document Laboratory of the Department of Homeland Security determined that the son's birth certificate was counterfeit. According to Chen, Ming did not tell him that the lab deemed the birth certificate a counterfeit and instead just told him that it was " useless." Because, Chen explained, Ming told him that he needed another birth certificate and Chen wanted to comply with his attorney's request, he asked his father to get a new one, which the Forensic Document Laboratory determined was also counterfeit. Although Chen knew that because his son was not registered a genuine birth certificate is generally not available, he believed that his son's documents were authentic because his father got them from a government office. Chen later replaced Ming with attorney Yongbing Zhang, who represented him when he testified at his removal hearing. Zhang submitted additional evidence to corroborate Chen's claim that he had two children in violation of the one-child policy, including letters from Chen's parents and wife that refer to both children, and a message from his daughter.
Focusing initially on Chen's testimony, the IJ denied relief. She explained that testimony alone, if found credible, can satisfy an applicant's burden, but that, because of several " major" inconsistencies, Chen's " testimony [was] insufficiently persuasive to meet his burden of proof." The " most significant inconsistency" was that Chen's translated asylum application asserted that his wife already had been sterilized while he testified she would be sterilized if caught. The IJ also noted that (1) Chen could not explain why his birth certificate was translated into Spanish; (2) Chen's testimony about meeting Patrick Meredith changed (he supposedly said that he first met him in China, but later placed the first meeting in the United States; Chen also supposedly varied his account of whether he and Meredith met while Chen was ...