Opposition Brief — Immigration and Naturalization Service v. Yi Quan Chen

No. 02-25 | St 2902

In The OFFICE OF TE THE CLERK

Supreme Court of the Anited States

5

IMMIGRATION AND NATURALIZATION SERVICE,

Petitioner,

Vv.

YI QUAN CHEN,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

RESPONDENT?’S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

e

MONICA SCHURTMAN

(Counsel of Record)

UNIVERSITY OF IDAHO,

COLLEGE OF LAW

Legal Aid Clinic

PO Box 442322

Moscow, ID 83844-2322

(208) 885-6541

Of Counsel

WILLIAM SCHURTMAN

160 E. 38 St. #16 E

New York, N.Y. 10016

THOMAS C. GOLDSTEIN

AMY HOWE

GOLDSTEIN & HOWE, P.C.

4607 Asbury PI. N.W.

Washington, D.C. 20016

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

RESPONDENT'S COUNTERSTATEMENT

OF QUESTIONS PRESENTED

1. Whether the court of appeals relied upon and

applied the proper scope and standard of judicial review

when it overturned a determination by the Board of

Immigration Appeals (BIA) that respondent did not testify

credibly when seeking asylum and withholding of removal

from the United States.

2. Whether the court of appeals erred when, after

reversing the BIA’s determination that respondent was not

credible, the court, based on the administrative record as a

whole, found that respondent was eligible for asylum and

entitled to withholding of removal from the United States,

rather than remanding the case to the BIA.

TABLE OF CONTENTS

Page

RESPONDENTS COUNTERSTATEMENT OF QUES-

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RESPONDENT’S BRIEF IN OPPOSITION TO THE

PETITION FOR CERTIORARL..............00:000000000060:

STATUTORY AND REGULATORY PROVISIONS

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RESPONDENTS COUNTERSTATEMENT OF LAW..

RESPONDENT’S COUNTERSTATEMENT OF

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I. THE COURT BELOW CORRECTLY RELIED

UPON AND APPLIED WELL-ESTABLISHED

RULES FOLLOWED BY OTHER CIRCUITS

GOVERNING THE SCOPE AND STANDARD

OF REVIEW WHEN IT REVERSED THE

BIAS ADVERSE CREDIBILITY DETERMI-

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II. THE DECISION OF THE COURT BELOW

NOT TO REMAND ON THE MERITS

WHERE THE RECORD CLEARLY ENTI-

TLES RESPONDENT TO RELIEF DOES

NOT VIOLATE PRINCIPLES OF ADMINIS-

TRATIVE LAW AND IS CONSISTENT WITH

DECISIONS IN OTHER CIRCUITS................

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TABLE OF AUTHORITIES

Page

CASES:

Abovian v. INS, 219 F.3d 972 (9th Cir. 2000)................ 9,11

Alvarado-Carillo v. INS, 251 F.3d 44 (2d Cir.

IMAM ALAK iirdedadiahcpnrbubiddudiReneitbeventniosiesarorsensens 5, 11, 24

Balasubramanrim v. INS, 143 F.3d 157 (3d Cir.

Naat ia Lindh itis bd eeiicekkciedbbssakeknsenbesbeekessuveonenes 4

Bandari v. INS, 227 F.3d 1160 (9th Cir. 2000).................. 10

Begzatowski v. INS, 278 F.3d 665 (7th Cir. 2002)............. 24

Bojorques-Villanueva v. INS, 194 F.3d 14 (1st Cir.

iets nbadaheh tbs digebtwkind sind Tadedetescvnnveivkeaysssavi 5, 7

Chang v. INS, 119 F.3d 1055 (3d Cir. 1997)................ 20, 22

Chang, Matter of, 20 1. & N. Dec. 38 (BIA 1989)............... 27

Chun v. INS, 40 F.3d 76 (5th Cir. 1994) .0..... ee ceceeeeeees 7

Cordero-Trejo v. INS, 40 F.3d 482 (1st Cir. 1994)............ 4,8

Damaize-Job v. INS, 787 F.2d 1332 (9th Cir. 1986)......5, 10

Davis v. Shalala, 985 F.2d 528 (11th Cir. 1993).........00..... 17

De Leon-Barrios v. INS, 116 F.3d 391 (9th Cir.

AE silica ailaltehtiaah ctalicid Seduaaban Leah wivabiusdindentsonennteuicevs 7

Ezeagwuna v. Ashcroft, No. 01-3294, 2002 U.S. App.

Ee ROOD CO CAE. BOUB) oi evessesesnseevesserssoenvssenageoseovonss 23

Faucher v. Secretary of Health & Human Services,

Pe BBE 6 UE I hci crssessivevnssssncssisnnsaninsvensssvniaie 17

Fergiote 0. ING, 138 F.8d 14 (1098).........0c0sescsccsceresessseseeses 23

Pemeee U. HOt, 430 UB. TET CIBTT) .....00csccessvsseesesvsesserovssenes 28

Figeroa v. INS, 886 F.2d 76 (4th Cir. 1989)... eeeseeeees 4

iv

TABLE OF AUTHORITIES — Continued

| Page

Florida Power & Light Co. v. Lorion, 470 U.S. 729

Ee coi ba tiiisleacibsioineaisadbistntilitamiahisks cinaentiaadiiianinsnpesassion 18, 29

FPC v. Idaho Power Co., 344 U.S. 17 (1952)............... 21, 29

Gailius v. INS, 147 F.3d 34 (1st Cir. 1998)................. 4, 25

Hamzehi v. INS, 64 F.3d 1240 (8th Cir. 1995)... ee 4

Harisiades v. Shaughnessy, 342 U.S. 580 (1952).............. 28

Harris v. Secretary of Health and Human Services,

BE Fe Oe Cte Gs FI Pivischecescectcvnsiivsericenssansenpecinns 17

Hartooni v. INS, 21 F.3d 336 (9th Cir. 1994)... 5

Hutsell v. Massanari, 259 F.3d 707 (8th Cir. 2001)........... 17

INS v. Abudu, 485 U.S. 94 (1988).................c.cscsssssssssssesees 19

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)......... 6, 16, 21

INS v. Doherty, 502 U.S. 314 (1992) ......ssssssss Sitaram 21

INS v. Elias-Zacarias, 502 U.S. 478 (1992)...4, 7, 20, 21, 23

Ivy v. Sullivan, 898 F.2d 1045 (5th Cir. 1990)..........0.000... 17

I.Z. and O.Z., In re, 221. & N. Dec. 23 (BIA 1998)............. 8

Jencks v. United States, 353 U.S. 657 (1957).................08 13

Jenkins v. Anderson, 447 U.S. 231 (1980)................ccceeeee 13

Khan v. INS, 237 F.3d 1143 (9th Cir. 2001)... 16

Kleindienst v. Mandel, 408 U.S. 753 (1972) ..............cce eee 28

Li Wu Lin v. INS, 238 F.3d 239 (3d Cir. 2001) ................. 23

Mansour v. INS, 230 F.3d 902 (7th Cir. 2000)................. 4,6

McDonnell Douglas Corp. v. National Aeronautics

& Space Corp., 895 F. Supp. 316 (D.D.C. 1995) ............ 19

Mejia-Paiz v. INS, 111 F.3d 720 (9th Cir. 1997)............... 10

TABLE OF AUTHORITIES — Continued

Page

Mosa v. Rogers, 89 F.3d 601 (9th Cir. 1996)... 5

Mowerey v. Heckler, 771 F.2d 966 (6th Cir. 1985)............. 17

Nader v. Allegheny Airlines Inc., 426 U.S. 290

Ene PasicwisdiaSasaunnsbesiiteehisiniealoassunisiiabindbdaieininesaedaaasaisuaumdaadian 18

National Communications Ass’n v. AT&T, 46 F.3d

kb ge |) RNC susouswsversssovsevseseonenentin 25

Navas v. INS, 217 F.3d 646 (9th Cir. 2000)...............0....... 22

Nelson v. United States, 64 F. Supp. 2d 1318 (N.D.

Gtk. TIO sinsadiscinconassecescdabendamamonagunshisomacuanimanenaelaal 19

O.D., In re, 211. & N. Dec. 1079 (BIA 1998)............... 11, 12

Paramasamy v. Ashcroft, 295 F.3d 1047 (9th Cir.

Pe sctnnsinnarscsiinatateiemntdoeanesbinabanancaaaia ads adden 16

Port of Portland v. United States, 408 U.S. 811

CIP n-scicistinsttinntepsassctinalaieeianiiuaniaas ici aaiaiadapiareiine ceabiade tied 18

Pula, Matter of, 19 I. & N. Dec. 467 (BIA 1987)................. 6

Rhoa-Zamora v. INS, 971 F.2d 26 (7th Cir. 1992)............. 25

Rucu-Roberti v. United States Department of

Justice, INS, 177 F.3d 669 (8th Cir. 1999)...................0.. 7

Seavey v. Barnhart, 276 F.3d 1 (1st Cir. 2001)................. 17

SEC v. Chenery Corp., 318 U.S. 80 (1948).................. 18, 26

Senathirajah v. INS, 157 F.3d 210 (3d Cir. 1998)......... 5, 11

Shah v. INS, 220 F.3d 1062 (9th Cir. 2000)....................00 10

Shaughnessy v. Mezei, 345 U.S. 206 (1953)... eee 26

Sierra Club v. Peterson, 185 F.3d 349 (5th Cir.

It <isiscivssscaipscsellb cir ieeiaitcdseiasgin cakaalaelaialiciaatidiaitn la hatha 25

vi

TABLE OF AUTHORITIES -— Continued

: Page

Stewart v. INS, 181 F.3d 587 (4th Cir. 1999)............: cece 25

Tejeda-Mata v. INS, 626 F.2d 721 (9th Cir. 1980)............. 16

United States v. Arvizu, 122 S.Ct. 744 (2002)................. 8,9

United States v. Bean, No. 01-7042 .............ccccseeceeeeees 729, 30

Universal Camera Corp. v. NLRB, 340 U.S. 474

(SOD) ercesvscsscsasisovissenmbinsstichntmminaiammeae 18

Vilorio-Lopez v. INS, 852 F.2d 1137 (9th Cir. 1988).......... 11

Yang v. McElroy, 277 F.3d 158 (2nd Cir. 2002)............ 23, 24

Zhao v. United States Department of Justice, 265

PB BB. (BE Cie, FRG E) vcccnscitnrecencveessoseesectsveonstreveinctovnans 27

Zubair v. INS, 191 F.3d 458 (7th Cir. 1999) (unpub-

RiateOE CREAN) 010s00000000.0000000ecesnosnccnevonvereubecanngseaseavesasounse 11

STATUTES, REGULATIONS AND RULES:

Pile: bi. Bie: PIE AG oriccieccoicsononticicnionceeeaanel 27

B U.S.C. LIQMAXKERKE) ...csrsccossccrreressenscesooees 1, 12, 14, 26, 27

BUT... SIGE scsvssnvecsorecisessrsenssrsateciovmenessttmmeniennaannl 26

SB UFB.C. LOGI cccesccesvesersicisasnsenterennesesonesmnernnmneies 47

CFR. DOR TIE vsecccstvccissceseinsenersmnssinensinianenaa 1

SCF TR. BE TIE secisicsicssvncsoncassssntrerrinsrintemvenamainie 1

OF, BU U wxcicansrernisrnissvinitisintinnenmmiamenanin 1

6 OFT. BOB IE cccscscnceserssssicstsmenenvtsnisieemnmane 1

B CT. BOG, MKD) sesccssscnscvcisonsescesessscnsenvmnenissmenensnnnees

CBR. BOG. 2GIO) siccccnesesernsrcessnnicsinisrenenreeniniannneaan 1

B CPB. B06. 1G) ..0resssererccessessssescscssesesisoovosounpesessoesencnsoennts 1

= ee =

Vii

TABLE OF AUTHORITIES — Continued

Page

Bs ei ca niehthionconcatevenecicanctcdinhishaniatepianidiiedwibiaenianes 1

re EE siiciccnecntivnceieabarsvccdcaniiectnninmnisannieniannian 26

ee GO ap stase chs eabiistnsccpccenaapibaccmmnaedecniansicbelanncichiadiiciiistoieleesen 26

Oe a diastase censencntaaveeeridiorininreimansemmencanats 26

Other Authorities:

SO Gla. TOE, Ge Ces tatnsseecsncsonenncrsecsscennrneacinntelt

Fe FR, Fe Ce iicrtccicensacnscentresnsnsannionsnesentnncenanees 5

Bureau of Population, Refugees, and Migrétion,

U.S. Dep’t of State, Analysis of Determination

that Kemp-Kasten Amendment Precludes Further

Funding to UNFPA under Pub. L. 107-115 (July

iis Mics debulhntnhdsddecidsidashunpilensbebanseiiiueiaudetbiaanwiankeoiieeis 27

D. Anker, Determining Asylum Claims in the

United States: A Case Study on Implementation

of Legal Norms in an Unstructured AUjudicatory

Environment, 19 N.Y.U. Rev. L. & Soc. Change

ITED sscntsthchsidctaneuadinsancaaannslataiiiatepadihiietiatianenetat 5

INS, Asylum Officer Basic Training Workbook,

RIT GUI BIO ciescnreescnssrisasetisesscnencenesetnesnnd 5, 8

Jeffrey L. Kestler, Questioning Techniques and

I Oe Ce is ER chinese tceniencabeintctinsenreniquatentns 12

2 Pierce, Administrative Law Treatise § 11.2 (2002) ........ 18

2 Pierce, Administrative Law Treatise § 14.1 (2002)........ 16

3 Pierce, Administrative Law Treatise § 18.1 (2002)........ 17 -

TABLE OF AUTHORITIES -— Continued

Report of the U.S. Senate Judiciary Committee, S.

I, Ta Se Ce niet tenreanicnnesncrtnnininnintitinninnncarieniinn 6

U.S: Dep’t of State, Press Statement: FY 2002

Funding for the UN Population Fund (July 22,

1

RESPONDENT'S BRIEF IN OPPOSITION TO THE

PETITION FOR CERTIORARI

Respondent Yi Quan Chen (“Chen”) respectfully

opposes the government’s petition for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Ninth Circuit in this case.

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

In addition to the provisions cited and reproduced by

the government, this case involves 8 C.F.R. 208.13(b)(2)

and (3) and 8 C.F.R. 208.16(b)(2) and (3), 208.16(c),

208.16(d) and 208.18, which are reproduced infra in

Respondent’s Appendix (“Resp. App.”).

RESPONDENT’S COUNTERSTATEMENT OF LAW

Respondent agrees with the government’s statement

of the relevant statutory and regulatory framework of this

case, except for its omission of 8 U.S.C. 1101(a\(42)B),

which amended the Immigration and Nationality Act to

include as a ground for asylum the “resistance to a coer-

cive population control program,” and is at the core of this

case.

In addition, 8 C.F.R. 208.16 and 208.18 are relevant because, in

_ the proceedings below, respondent also sought withholding of removal

under the Convention Against Torture. The agency rejected this claim,

and the court of appeals, in granting withholding of removal, did not

specifically invoke the Convention Against Torture. Accordingly,

respondent seeks to preserve this issue in the event that this Court

decides to remand the case.

eS eee

2

RESPONDENT’S COUNTERSTATEMENT

OF FACTS

Chen, a citizen of the People’s Republic of China, grew

up in a rural village in Fujian province. E.R. 79, 160. On

October 5, 1994, Chen, then twenty years old, married Ai-

Ling Jiang, then age nineteen. Their marriage was not

legally recognized because the couple married younger

than the law allowed. Jd. 82, 85. Therefore, they could

obtain neither a marriage permit, nor a birth-allowed

permit. Jd. 85-87. In China, when a woman becomes

pregnant without such permits, her pregnancy violates the

law. Id. 181-186. Chinese family planning officials fre-

quently punish those who violate these policies by such

methods as the use of physical force, detention, coerced

abortion, sterilization, exorbitant fines, and property

destruction. Jd. 86, 178-186. Those who seek to evade

punishment often go into hiding in China, or if they can,

leave the country and seek refuge elsewhere. Id. 186-187.

Chen’s wife became pregnant in February 1995. Family

planning officials attempted to detain the Chens because

the couple did not have the requisite permits. Chen’s

parents intervened, allowing the Chens to flee. Jd. 86. To

elude the authorities, the couple stayed with different

relatives. Family planning officials persisted in their

pursuit, repeatedly visiting the home of Chen’s parents

searching for him. On one occasion, Chen returned home,

and discovered family planning officials waiting for him.

Chen then hid in his aunt’s home. Id. 88-91.

In the spring of 1995, immigrant smugglers helped

Chen flee to the United States where he was placed in INS

detention. Id. 92-93, 126. While he was in the U.S., Mrs.

Chen received a notice requiring her to submit to an

abortion. Jd. 220. She subsequently gave birth to their son.

To evade family planning officials, Mrs. Chen and the child

have continued to change residences often. Id. 102, 120-

121. Chen’s lawyer prepared an asylum application based

on pro-democracy grounds, instructing him not to mention

that Chinese authorities sought him for his violation of

ao ORT OTOeR

Re SOR NS Sh A

3

China’s marriage and family planning laws, because if he

did so, he would “have less chance to win” his case. Id.

130. The IJ denied Chen’s 1995 claim, and in 1996, INS

deported him to China. Id. 93-94.

Chinese officials apprehended Chen at the Shanghai

airport and placed him in a detention center. Jd 127. They

beat him so severely that he required hospitalization, and

now bears a scar on his forehead. Id. 95-99, 129. Chen

escaped after approximately one month in the detention

center’s hospital. He learned that the Chinese government

had issued notification of his escape, and moved around a

lot to avoid capture. When he called home, hi: family told

him to stay away because family planning officials and the

police were searching for him. Jd. 99-102. Government

agents ransacked the home of Chen’s parents and detained

them looking for Chen and his wife. Jd. 200. During this

time, Chen saw his wife and son from a distance once, for

just a few minutes. He stayed away from them because he

feared for their safety. Jd. 103, 121.

Chen again fled to the U.S. in 1998. Jd. 105. The INS

detained him, holding him until he was granted withhold-

ing of removal in the fall of 2001. Resp. App. 17a. Chen

filed for asylum and withholding of removal, including

withholding under the Convention Against Torture. Pet.

App. 57a. Evidently reassured by his new counsel that it

was permissible to discuss his violations of China’s mar-

riage and family planning laws, Chen focused on those

areas in his 1998 application. See, e.g., id. 130, 168. He

submitted detailed country conditions evidence, admitted

in the administrative record, which confirms that the

Chinese government harshly punishes individuals who

resist coercive family planning practices, including those

who marry before the government-mandated age and

disregard abortion requirements. Jd. 181-187. Chen does

not speak English, and testified at his asylum hearing

through a translator via telephone. Jd. 69, 71-72, 95-96.

The IJ and BIA determined that Chen had not testified

credibly, and denied relief. These decisions, and the court

i ii ei

4

of appeals’ reversal will be discussed in the context of the

arguments below.

ARGUMENT

I. THE COURT BELOW CORRECTLY RELIED

UPON AND APPLIED WELL-ESTABLISHED

RULES FOLLOWED BY OTHER CIRCUITS

GOVERNING THE SCOPE AND STANDARD

OF REVIEW WHEN IT REVERSED THE BIA’S

ADVERSE CREDIBILITY DETERMINATION.

1. The court of appeals.employed the proper legal stan-

dard in reviewing the BIA’s conclusion that respondent’s

testimony was not credible. As the court correctly stated,

factual findings of the BIA “will be upheld on review

unless ‘any reasonable adjudicator would be compelled to

conclude to the contrary.’” Pet. App. 4a (quoting 8 U.S.C.

1252(b)(4)(B)). Accord INS v. Elias-Zacarias, 502 U.S. 478, |

481 (1992). The court held that this standard, although |

deferential, requires that the BIA have a “legitimate

articulable basis to question the [applicant’s] credibility” and

“a specific, cogent reason for any stated disbelief.” Pet. App. |

4a. Consequently, “minor discrepancies, inconsistencies, or

omissions that do not go to the heart of an applicant's asylum

claim” do not constitute substantial evidence. Jd. Otlier

courts of appeals also require that an adverse credibility

determination by the BIA be supported by “substantial

evidence” and “specific, cogent reasons” that “bear a legiti- |

mate nexus to the finding.” See, e.g., Gailius v. INS, 147 F.3d

34, 44, 47 (1st Cir. 1998); Balasubramanrim v. INS, 1438

F.3d 157, 162 (8d Cir. 1998); Figeroa v. INS, 886 F.2d 76,

78 (4th Cir. 1989); Mansour v. INS, 230 F.3d 902, 906 (7th

Cir. 2000); Hamzehi v. INS, 64 F.3d 1240, 1242 (8th Cir.

1995). Similarly, other circuits hold that although the

substantial evidence standard is deferential, deference “is

not due” when the BIA’s factual findings are based on

“inferences or presumptions that are not reasonably

grounded in the record, viewed as whole.” Cordero-Trejo v.

5

INS, 40 F.3d 482, 487 (1st Cir. 1994). Adverse credibility

determinations based on minor discreparicies, inconsisten-

cies or omissions that do not go to the heart of an appli-

cant’s asylum claim cannot constitute substantial

evidence. See Bojorques-Villanueva v. INS, 194 F.3d 14, 16

(1st Cir. 1999); Senathirajah v. INS, 157 F.3d 210, 221 (3d

Cir. 1998). See also Alvarado-Carillo v. INS, 251 F.3d 44,

56 (2d Cir. 2001) (finding that a plausible explanation may

suffice to overcome minor inconsistencies); Asylum Officer

Basic Training Workbook, “Credibility,” (March 1999) at

12, 27 (minor discrepancies that do not directly bear on

material aspects of an asylum claim cannot undermine an

applicant’s credibility). The Ninth Circuit has followed

these standards for more than fifteen years, see, e.g., Mosa

v. Rogers, 89 F.3d 601, 604 (9th Cir. 1996); Hartooni v.

INS, 21 F.3d 336, 342 (9th Cir. 1994); Damaize-Job v. INS,

787 F.2d 1332, 1338 (9th Cir. 1986); and did so in the

instant case.

In addition to crafting these standards, the courts of

appeals not only shaped uniform rules for reviewing

adverse credibility determinations in asylum claims, but

also effectuated the humanitarian purpose of the Refugee

Act of 1980, which governs asylum cases.’ See, e.g., 55 Fed.

Reg. 30674, 30675 (July 27, 1990) (explaining that the

Refugee Act reflects “a fundamental belief that the grant-

ing of asylum is inherently a humanitarian act distinct

* Such an approach is also mindful of the unusual circumstances

that an asylum applicant typically confronts, each of which was faced

by respondent during the asylum prc ess: fear and disorientation;

detention; unfamiliarity with the language, culture, and legal system in

the United States; absence of control over obtaining evidence; and the

obligation to testify at his hearing through a non-court certified

translator by telephone. See INS, Asylum Officer Basic Training

Workbook, “Credibility” at 6-11; D. Anker, Determining Asylum Claims

in the United States: A Case Study on Implementation of Legal Norms

in an Unstructured Adjudicatory Environment, 19 N.Y.U. Rev. L. & Soc.

Change 433 (1992/1993).

ee

6

from the normal operation and administration of the

immigration process”); Report of the U.S. Senate Judiciary

Committee, S. Rep. No. 96-256, at 1 (1980) reprinted in |

U.S.C.C.A.N, 141 (“The Refugee Act gives statutory |

meaning to our national commitment to human rights and

humanitarian concerns, not reflected in the Immigration

and Nationality Act of 1952 as amended”); Matter of Pula,

19 I & N Dec. 467, 476 (BIA 1987) (Heilman, concurring)

(stating that “asylum provisions are humanitarian in their

essence and indeed recognize that the forces which impel

persons to seek refuge may be so overwhelming that the

‘normal’ immigration laws cannot be applied in their usual

manner.”). As this Court recognized in INS v. Cardoza-

Fonseca, 480 U.S. 421, 449 (1987), the Refugee Act is

especially important because the “harsh measure” of

deportation is “all the more replete with danger when the

alien makes a claim that he or she will be subject to death

or persecution if forced to return to his or her home coun-

try.”

2. While the court in Chen properly followed the rules

adopted by other circuits for reviewing an adverse credibil-

ity determination in an asylum case, the government

nevertheless cites four cases that it claims conflict with

the decision, and with the Ninth Circuit’s approach gener-

ally. See Pet. 20. These cases, however, demonstrate

nothing of the sort.

In Mansour v. INS, 230 F.3d 902 (7th Cir. 2000), the

court affirmed the BIA’s adverse credibility determination

based on “significant” discrepancies in the alien’s applica-

tion “which were central to the respondent’s claim.” Id. at

906. The Seventh Circuit applied precisely the same

standard employed in this case: an adverse credibility

determination will be upheld if supported by “specific,

cogent reasons” (id.; compare Pet. App. 8a), including

discrepancies that “go to the heart of” (Pet. App. 8a) or are

“central to” (Mansour, 230 F.3d at 906) the applicant’s

asylum claim. The fact that the BIA’s adverse credibility

determination was upheld in Mansour and reversed in this

7

case does not demonstrate a “conflict with other courts of

appeals” (Pet. 20) as to the appropriate standard of review.

As in the instant case, in Bojorques-Villanueva v. INS,

194 F.3d. 14 (1st Cir. 1999), the court independently

evaluated each ground the BIA cited as a basis for finding

the applicant incredible. The court articulated a standard

virtually identical to the one set forth by the Ninth Circuit

in Chen, namely, that “an adverse credibility determina-

tion cannot rest on trivia but must be based on discrepan-

cies that ‘involved the heart of the asylum claim.’” Jd. at

16 (quoting De Leon-Barrios v. INS, 116 F.3d 391, 393-94

(9th Cir. 1997)). Similarly, Rucu-Roberti v. United States

Department of Justice, INS, 177 F.3d 669 (8th Cir. 1999),

upheld the BIA’s denial of eligibility for asylum and

withholding of deportation on the grounds that the appli-

cant “failed to present a consistent account of what alleg-

edly had happened” and that the applicant’s testimony

was “not detailed, consistent, and believable.” Jd. at 670.

While Rucu-Roberti contains no discussion of the standard

for reviewing a BIA adverse credibility determination, it

was decided on the same standard as the case at bar:

whether discrepancies were central to the merits of the

applicant’s claim.

The government misperceives the Fifth Circuit’s

decision in Chun v. INS, 40 F.3d 76 (5th Cir. 1994). In

Chun, the court declared that it “will not review decisions

turning purely on the immigration judge’s assessment of

the alien petitioner’s crecibility.” Jd. at 78. The Fifth

Circuit’s perspective therefore differs from every other

court of appeals to consider the issue because its deference

to the BIA’s credibility findings is not “substantial” but

total. Such an approach violates the standard for review-

ing factual findings enunciated by this Court in Elias-

Zacarias, and codified by Congress in 8 U.S.C. 1252

(b)(4)(B). The instant case is not an appropriate vehicle to

review the conflict between the Fifth Circuit and every

other court of appeals over whether courts should ever

overturn a BIA adverse credibility finding, since the

a i RI |

8

government's petition does not appear to defend the

extreme position taken in Chun. ©

3. The government contends that the court of appeals

erred in “treating each inconsistency or gap in Respon-

dent’s evidence as an isolated defect” and “failing to

consider that evidentiary defects may carry cumulative

significance” with respect to assessing an applicant’s

credibility. Pet. 18-20. This criticism is not justified in the

asylum context. For example, in Cordero-Trejo, 40 F.3d at

488-491, the First Circuit separately evaluated each of the

ten grounds the BIA cited as indicative of the applicant’s

lack of credibility, and vacated the BIA’s negative credibil-

ity ruliny because none of the bases was supported by

substantial evidence. The INS’ own Asylum Officer Basic

Training Workbook on Credibility (at 28) teaches that

“[nJon-material falsehoods cannot be added together to

find the applicant ineligible for asylum.” Consequently, the

government's proposed cumulative approach is not appropri-

ate in this case, because the grounds upon which the BIA

relied in making its adverse credibility determination are

immaterial to the elements of the asylum definition.’

The government nonetheless cites United States uv.

Arvizu, 122 S. Ct. 744 (2002) in an effort to bolster its “cumu-

lative evidence” position. Pet. 19. In Arvizu, a criminal casein-

volving suppression of evidence, and having nothing to do

* Contrary to the government’s argument (Pet. 19, n.7), such a

calculation is entirely different from that governing the evaluation of

whether harmful acts amount to persecution. The cumulative approach

to assessing whether harm amounts to persecution involves considera-

tion of whether several instances of lesser harms together rise to a level

of harm that constitutes persecution. See, e.g., In re I.Z. and O.Z., 22 I.

& N. Dec. 23 (BIA 1998). The difference is that in the context of

analyzing credibility, the cumulative approach improperly aggregates

faulty evidentiary determinations, while the cumulative approach to

evaluating whether individual harms to the applicant collectively

amount to persecution, aggregates probative evidentiary considera-

tions.

9

with asylum, this Court held that based on precedent in

“reasonable suspicion” traffic stop cases, a law enforce-

ment officer could consider that the totality of the circum-

stances warranted further investigation. 122 S. Ct. at 751-

752. Arvizu is thus inapposite to a review of BIA adverse

credibility determinations in asylum cases. Consistent

with the humanitarian nature of the Refugee Act, the

courts, the BIA, and the INS have developed well-settled

rules appropriate to reviewing credibility issues involving

asylum applicants. These rules, explained above, are

necessarily different than those appropriate to traffic stop

cases. Moreover, the temporal context of a traffic stop

decision is distinct from that of a credibility determination

in an asylum case. In a traffic stop, a law enforcement

agent must make a quick judgment based on his overall

impression of the circumstances in order to decide whether

further investigation of possible criminal activity is appro-

priate. In an asylum case, by contrast, the IJ and the BIA

have more time to examine each circumstance so that a

quick “totality of the circumstances” impression to assess

credibility is not necessary for proper enforcement of the

relevant laws.

4. The government argues that the court of appeals’

decision in this case is part of a “pattern of overreaching”

(Pet. 16) by the Ninth Circuit in its review of the BIA’s

adverse credibility findings in asylum cases. However,

most of the government’s quarrel with this “body of circuit

law” (Pet. 14) is not presented in this case. The petition

criticizes and cites with disapproval Abovian v. INS, 219

F.3d 972 (9th Cir. 2000), which held that the BIA may not

consider an applicant’s failure to support his claim with

documentary proof if the applicant testifies credibly. See

Pet. 13, 14, 16, 18, 24. Not only does petitioner fail to

explain what Abovian has to do with the instant case,

where respondent did, in fact, submit documentary evi-

dence to corroborate his claim (E.R. 169-203), but the BIA

also did not address this issue in its opinion. Similarly,

Chen is not an appropriate vehicle for this Court to review

Shah v. INS, 220 F.3d 1062 (9th Cir. 2000), since the court

10

below relied on Shah only as an alternative (and less

important) ground for its conclusion that respondent’s

birth records were irrelevant to respondent’s credibility. In

Chen, the court instead rested its determination primarily

on the ground that the BIA majority had ignored the long-

standing rule that “if discrepancies ‘cannot be viewed as

attempts by the applicant to enhance his claims of perse-

cution [they] have no bearing on his credibility.’” Pet. App.

7a-8a, citing Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th

Cir. 1986). The government’s critique of Bandari v. INS,

227 F.3d 1160 (9th Cir. 2000) is equally misplaced since

the Ninth Circuit in this case does not even cite Bandari.

Finally, the government purports to seek review of a “body

of circuit law that relieves the applicant of his burden of

proof in asylum cases.” Pet. 14. Yet petitioner fails to

explain how the court of appeals, by applying well-

established principles of judicial review of adverse credi-

bility findings to this case — principles followed by other

circuits in asylum cases — has improperly shifted the

applicant’s burden of proof.

5. In concluding that the three bases the BIA cited could

not constitute substantial evidence to support an adverse

credibility ruling, the Ninth Circuit not only followed long-

settled rules, it correctly applied them to the facts of this

case.

Counterfeit birth certificates: The court of appeals properly

concluded that there was no substantial evidence to

support the BIA’s view that the submission in respondent’s

first asylum case of counterfeit notarial birth records with

* The case at bar does not conflict with Mejia-Paiz v. INS, 111 F.3d

720 (9th Cir. 1997), despite the government’s suggestion to the contrary.

Pet. 15, n.4. Mejia-Paiz correctly states that the asylum applicant

“bears the burden of persuading the IJ that his evidence is credible.” Jd.

at 722. In contrast to Chen, however, Mejia-Paiz involved discrepancies

that “are not minor,” not explained, and went to the heart of the

applicant’s asylum claim. Jd. at 723-724.

11

an incorrect birth year undermined his credibility. Pet.

App. 8a. First, those certificates were offered to determine

whether respondent should be classified as a juvenile or

adult for purposes of INS detention, a matter wholly

collateral to the asylum claim. See E.R. 155, 157 (“Report

needed for custody determination. Juvenile vs. adult.”).

Second, respondent testified that he did not know the

certificates were fraudulent and had not noticed the

discrepant birth year; he explained that family members

had obtained them, and that somebody evidently made a

mistake. Jd. 110-113.

“Minor inconsistencies in the record such as discrep-

ancies in dates which reveal nothing about an asylum

applicant’s fear for his safety are not an adequate basis for

an adverse credibility finding.” See, e.g., Senathirajah, 157

F.3d at 221 (3d Cir. 1998) (quoting Vilorio-Lopez v. INS,

852 F.2d 1137, 1141 (9th Cir. 1988)). Similarly, a plausible

explanation can overcome minor discrepancies. Alvarado- ;

Carillo, 251 F.3d at 56, citing with approval Abovian, 219 °

F.3d at 979. Where such a date discrepancy is attributable

to mistakes by persons other than the applicant — as

occurred in the instant case (see Pet. App. 7a) — it may be

disregarded. Zubair v. INS, 191 F.3d 458 (7th Cir. 1999)

(unpublished). The BIA itself has recognized that a

fraudulent document presented for matters incidental to

claims of persecution does not undermine an applicant’s

credibility because it does not go the heart of his asylum

claim. Jn re O.D., 21 I. & N. Dec. 1079, 1081-82 (BIA 1998).

The court of appeals therefore correctly found that since

the birth certificates did not “enhance [respondent’s]

claims of persecution” or “reveal [anything] about his fear

for his safety,” and because respondent had provided a

logical explanation, the BIA improperly discredited re-

spondent on that basis. Pet. App. 8a-10a.

The government also attempts to paint the court of

appeals’ decision on this issue as “absurd[]” (Pet. 18) and

“plainly wrong” (Pet. 17) by citing an interrogation manual

for the proposition that a witness’s entire testimony can be

12

discredited if a witness lies on any point, “no matter how

irrelevant it may at first appear.” Pet. 17 (quoting Jeffrey

L. Kestler, Questioning Techniques and Tactics § 1:22 (3d

ed. 1999)). But the BIA’s reasoning in In re O.D. plainly

illustrates why, whatever the merits of Kestler’s technique

in an interrogation, the principle does not apply across the

board in asylum cases.’

Inconsistencies between the two applications: The court

below also correctly concluded that the two inconsistencies

cited by the BIA between respondent’s 1995 and 1998

asylum applications were irrelevant to the question of

credibility. The BIA determined that because, unlike the

1998 application, “respondent’s 1995 application did not

mention coercive population control as a basis of relief,”

the two applications were “inconsistent * * * with respect

to critical aspects of respondent’s claim.” Pet. App. 20a-

21a. But, as the BIA itself noted in setting aside the IJ’s

determination that the asylum petition was frivolous, this

omission was reasonable, given that resistance to China’s

population control policies was not a viable basis for an

asylum claim in 1995. It was not until 1996, when Con-

gress enacted Section 601 of ITRIRA, now codified at 8

USC 1101(a)(42)(B), which made “resistance to a coercive

population control program” a ground for asylum, that

respondent could seek asylum based on his defiance of

China’s family planning policies. Pet. App. 22a-24a. The

BIA further recognized that “the respondent testified at [his

1999] hearing that in 1995 he suffered persection (sic) on

account of both his political activities and his violation of

coercive population control policies.” Jd. at 23a. (emphasis in

* In re S.M.J. also illustrates why the government’s endorsement of

Kestler’s interrogation approach is misplaced in the asylum context.

1997 BIA LEXIS 3,*4 (recognizing that because “this Board, the

Immigration Judges, and the Immigration and Naturalization Service

are all bound to uphold [the international obligations incorporated into

the Refugee Act] * * * a “cooperative approach” is appropriate.)

= °° °° °° ” —'-™

13

the original). Noting the BIA’s inexplicably inconsistent

treatment of this issue, the court of appeals correctly

concluded that respondent’s “observance of immigration

law” could not constitute “a basis for finding him not to be

credible.” Pet. App. 9a.

The government’s citations (Pet. 17-18) to Jencks uv.

United States, 353 U.S. 657, 667 (1957) and Jenkins uv.

Anderson, 447 U.S. 231, 239 (1980) are misplaced. Both

Jencks and Jenkins were decided in a criminal law context

completely divorced from the circumstances of this case.

Nothing in Jencks addresses the proper means of analyz-

ing the circumstances under which previously made

statements are in fact probative of a current credibility

determination in any context, let alone in an asylum case.

The issue in Jenkins, the constitutionality of the use of

pre-arrest silence to impeach a criminal defendant, has

nothing to do with the matter at bar. The Jenkins Court

noted that a witness could be impeached by his “previous

failure to state a fact in circumstances in which that fact

naturally would have been asserted” (447 U.S. at 239), but

that observation is relevant to Chen only insofar as it

supports the court of appeals’ reasoning. Respondent did

not mention his persecution for resistance to family

planning in his 1995 asylum application, but that circum-

stance was plainly not one in which “that fact naturally

would have been asserted,” since resistance to China’s

population control policies was not a viable basis for an

asylum claim in 1995.

The second discrepancy between the two applications

that the BIA cites for regarding Chen as incredible is

also immaterial to his asylum claim and explained by

record evidence. The BIA correctly notes that respondent

marked “single” on his first application, while in his

second application, he indicated that he married in 1994,

prior to his first arrival in the U.S. Pet. App. 20a-21a.

Although the government tries to characterize this dis-

crepancy as central to respondent’s asylum application,

and therefore probative of his lack of credibility, the record

14

shows otherwise. Respondent testified that the Chinese

government considered his marriage to be illegal, because ©

he and his wife were underage when they married. Yet,

despite his government’s view, respondent and his wife

clearly considered themselves married. E.R. 82, 86. Under

such circumstances, respondent reasonably was confused

about how he should characterize his marital status on an

official government document such as his asylum applica-

tion. A reasonable adjudicator, cognizant of respondent’s

circumstances as set forth in the administrative record,

would be compelled to conclude that the BIA’s finding on

this point required reversal.

Further, 8 U.S.C. 1101(a)(42XB) provides that asylum

may be based on persecution the applicant suffered or

reasonably fears “for resistance to a coercive population

control program.” Nowhere does the statute require that

an applicant be married or that the applicant’s resistance

to coercive population control policies occur in the context

of marriage. The wording of the statute simply contem-

plates that asylum can be granted based on resistance to

such policies, regardless of whether the applicant is

married or not. Consequently, respondent’s marking on his

second asylum application that he is married does nothing

to enhance his claim. For this reason, too, the record

compelled reversal of the BIA on the issue of “inconsistent”

applications.

General inconsistency and vagueness: The court of appeals

concluded that the BIA’s assertion that respondent's

“second application and testimony was * * * inconsistent

or vague” was not supported by any “specific, cogent

reason.” Pet. App. 10a. The BIA’s basis for regarding

respondent as “inconsistent or vague” was its belief that

he testified inconsistently about the location of his wife

and son, and that, although the record contains an abor-

tion notice from family planning officials, respondent did

not testify about it. Pet. App. 21a.

The record shows no inconsistency or vagueness in

respondent’s testimony concerning the whereabouts of his

15

wife and son. Respondent simply stated that his son lives

with his family, and that his wife and son “are together.”

E.R. 83, 84, 114, 128. He also explained that his wife is in

contact with his side of the family and had stayed with

them, and that she and their son move frequently to avoid

apprehension by family planning authorities. Jd. at 120,

121. This evidence, coupled with the fact that respondent

is in the U.S. while his wife and son both remain in China,

demonstrates that no contradiction or vagueness exists on

this point.

The court of appeals also correctly pointed out that

Chen did testify about the abortion notice. Pet. App. 10a.

The record shows that when the INS cross-examined Chen

about the notice, he responded in a straightforward

manner. E.R. 118-119. The court of appeals properly

concluded that the BIA’s reliance on the abortion notice

did not amount to substantial evidence that could support

a negative credibility determination. Pet. App. 10a.

6. Having found that none of the bases relied upon by the

BIA for its disbelief of Chen was supported by substantial

evidence, the court below correctly concluded that the

BIA’s adverse credibility decision could not stand. The

government has failed to show why this ruling warrants a

grant of certiorari.

Il. THE DECISION OF THE COURT BELOW NOT

TO REMAND ON THE MERITS WHERE THE

RECORD CLEARLY ENTITLES RESPONDENT

TO RELIEF DOES NOT VIOLATE PRINCIPLES

OF ADMINISTRATIVE LAW AND IS CONSIS-

TENT WITH DECISIONS IN OTHER CIRCUITS.

1. Although in the instant case, the court of appeals

reversed the BIA, concluding that respondent is entitled to

withholding of removal and eligible for asylum, the court

remanded to the BIA for the Attorney General to consider

the issue of whether respondent qualifies for asylum as a

matter of discretion (Pet. App. 15a), thus according the

- 16

agency the extra deference due on discretionary questions.

While withholding prohibits returning the alien to the

country where he has established a clear probability of

persecution, it does not bar removal to another country

that will accept him, and does not bestow the right to

apply for permanent residence and eventually, for citizen-

ship, as a grant of asylum does. See, e.g., Cardoza-Fonseca,

480 U.S. at 429 n.6. Remand to the Attorney General for

the exercise of his discretion on the question of asylum

thus preserves his authority over asylum matters, and

given that asylum confers far greater benefits than with-

holding of removal, also preserves his power more gener-

ally over immigration.

2. The court of appeals’ decision to grant respondent’s

application for withholding of removal and determine

respondent eligible for asylum comports with the doctrine

of primary jurisdiction, which contemplates that a review-

ing court will defer “initial decision-making responsibility”

to the agency. 2 Pierce, Administrative Law Treatise

§ 14.1, at 918 (2002). The Ninth Circuit recognizes that

courts of appeals reviewing decisions of the BIA do “not sit

as an administrative agency for the purpose of fact-finding in

the first instance.” Tejeda-Mata v. INS, 626 F.2d 721, 726

(9th Cir. 1980). Consequently, the Ninth Circuit remands to

the BIA when an evidentiary issue necessitates consideration

in the first instance by the BIA or IJ. See Khan v. INS, 237

F.3d 1148, 1144 (9th Cir. 2001). The Ninth Circuit also

remands to the BIA where the administrative record is not

sufficiently clear to allow judicial review. See Paramasamy

v. Ashcroft, 295 F.3d 1047, 1054 (9th Cir. 2002) (concluding

that a remand to the BIA was appropriate because “this is

not a case where we can say with the requisite certainty that

the Board would have been unreasonable in denying relief’).

Contrary to the government’s view, respect for the

primary jurisdiction of administrative agencies does not

relieve courts of their authority to review and reverse final

agency determinations. A court may award relief denied by

an agency rather than remanding if “the underlying law

17

and facts are such that the agency has no discretion to act

in any other manner,” and remand to the agency would

merely “further delay ... the action to which the peti-

tioner is clearly entitled.” 3 Pierce, Administrative Law

Treatise § 18.1, at 1824 (2002) citing Faucher v. Secretary

of Health & Human Servs., 17 F.3d 171, 176 (6th Cir.

1994) (court may reverse agency decision and award

requested relief “if all essential factual issues have been

resolved and the record adequately establishes a plain-

tiff’s entitlement to benefits.” See also Seavey v. Barnhart,

276 F.3d 1, 11 (1st Cir. 2001) (court could order relief

without remand “if the evidence and law compelled” such a

conclusion)); Hutsell v. Massanari, 259 F.3d 707, 714 (8th

Cir. 2001); Davis v. Shalala, 985 F.2d 528, 534 (11th Cir.

1993); Ivy v. Sullivan, 898 F.2d 1045, 1049 (5th Cir. 1990);

Harris v. Secretary of Health and Human Servs., 821 F.2d

541, 545 (10th Cir. 1987); Mowerey v. Heckler, 771 F.2d

966, 973 (6th Cir. 1985). The court of appeals followed this

well-established principle in Chen. Having determined

that the BIA’s adverse credibility determination was not

supported by substantial evidence, the court reviewed “the

complete administrative record” to determine whether it

“would be compelled to reverse [the BIA] decision” denying

relief and therefore, whether remand to the BIA was

unnecessary. Pet. App. 10a. This process did not require

the court of appeals to “render[] its own findings of fact”

(Pet. 21) or raise questions “in the first instance” (Pet. 20)

since as the government acknowledges, the IJ already

considered the merits of respondent’s claims if his testi-

mony were deemed credible (Pet. 26). The BIA, moreover,

held “that the evidence presented does not satisfy the

applicable burden of proof for either asylum or withhold-

ing of removal under the Act.” Pet. App. 24a. The agency

created a complete administrative record, 275 pages long,

on which the court of appeals relied to make a final deter-

mination, thus fulfilling the purpose of the primary

jurisdiction doctrine: to allow an agency to render the

initial determination on the issues in the case.

18

The government’s reliance on Port of Portland uv.

United States, 408 U.S. 811, 842 (1972), Nader v. Alle-

gheny Airlines Inc., 426 U.S. 290, 303-304 (1976), and SEC

v. Chenery Corp., 318.U.S. 80, 88 (1943) is inapposite

because Chen did not require the resolution of new facts or

“issues the agency did not consider.” (Pet. 21).° Accordingly,

the government's position that the court of appeals con-

ducted a de novo review of the agency’s decision is also

without foundation. Judicial review of an administrative

decision requires consideration of “all of the evidence in

the record as a whole, not just the evidence that is consis-

tent with the agency’s finding.” 2 Pierce, Administrative

Law Treatise §11.2 at 772 (2002). See also Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488-90 (1951).

Consistent with this precept, and because no issues

remained for which the agency needed to make an initial

determination, the court of appeals reviewed the agency’s

determination in light of the entire record, and found that

respondent was entitled to withholding of removal and

eligible for asylum.

3. Although the government characterizes the adminis-

trative record as “bare” (Pet. 24), it is vague as to what

exactly is missing. The government seems to suggest that

a remand is necessary for the agency to reconsider

whether: the presumption that respondent has a well-

founded fear of persecution has been rebutted; he was

* The government’s assertion (Pet. 21) that the court of appeals

approach runs afoul of this Court’s decision in Florida Power & Light

Co. v. Lorion, 470 U.S. 729, 744 (1985) is without merit. This Court’s

analysis in Lorion focused on why the court of appeals, rather than the

district court, had jurisdiction to review a determination by the Nuclear

Regulatory Commission. In the course of this discussion, the Court

recited a basic tenet of judicial review of agency action, namely, that

remand to the agency is the ordinary course of action. But nowhere does

Lorion address the circumstances in which remand would not be the

proper course of action, probably because the issue of whether or not to

remand to the agency was not central to the court’s holding. Jd.

19

pursued, detained, and beaten for reasons other than his

resistance to coerced family planning; based on “informa-

tion about the conditions” in China, “prospective from the

date of the court’s decision,” relief would still be warranted

(Pet. 24-27). But the court of appeals did not rely on the

rule that past persecution creates a rebuttable presump-

tion of future persecution. See Pet. App. 14a (“Notwith-

standing this presumption, we also find that Chen meets

the subjective and objective elements of proving his well-

founded fear”). Further, the government has not argued

that there is new information that might establish a

fundamental change in circumstances in China’s popula-

tion control policy such that respondent would no longer

have a well-founded fear or clear probability of persecu-

tion, and seems unlikely to do so now, given the govern-

ment’s present stand on that issue. See infra, at 27-28. The

government's position that the Attorney General must be

given an opportunity to address an applicant’s fear of

future persecution prospectively from the date of the

court’s decision, would create a never-ending loop of

judicial review from which an asylum applicant could

never escape. For any time a court of appeals reverses a

BIA decision denying withholding of removal, the Attorney

General could argue that since relief from removal “is

inherently prospective in nature” (Pet. 25) the case must

be remanded to the BIA for further consideration. See

Nelson v. United States, 64 F. Supp. 2d 1318, 1326 (N.D.

Ga. 1999) (If an agency were entitled to a “second bite at

the apple” every time it made an erroneous decision,

“administrative law would be a never ending loop from

which aggrieved parties would never receive justice,”

quoting McDonnell Douglas Corp. v. National Aeronautics

& Space Corp., 895 F.Supp. 316, 319 (D.D.C. 1995); cf.

INS v. Abudu, 485 U.S. 94, 107 (1988) (“There is a strong

public interest in bringing litigation to a close as promptly

as is consistent with the interest in giving adversaries a

fair opportunity to develop and present their respective

cases.”).

20

4. The government’s claim that there is “no direct evi-

dence” that respondent was beaten and pursued because of

his resistance to family, planning policies (Pet. 8, 26-27) is

inapposite. This Court does not require “direct evidence” of

motive for persecution; only “some evidence, direct or

circumstantial” must be presented. Elias-Zacarias, 502

U.S. at 483. Here, the record clearly shows that: respon-

dent was pursued by family planning authorities (E.R. 86-

91, 102, 122-127, 200, 218); such authorities frequently

inflict harsh punishments on individuals who have re-

sisted forced population control, including detention and

beating (Jd. 176-193, 269-275); and Chinese officials

detained and severely beat respondent when INS returned

him. Id. 95-99; 129. Equally unavailing is the govern-

ment’s position that “a reasonable inference might be that

respondent was punished in Shanghai for leaving China

illegally.”(Pet. 27). The government provides no cite in the

record to support this position, and in any event, illegal

departure combined with other manifestations of defiance

of government authorities can give rise to persecution on

account of political opinion. See E.R. 106; Chang v. INS,

119 F.3d 1055, 1062-65 (8rd Cir. 1997). The government’s

assertion that the record does not show that the authori-

ties wanted to detain respondent in 1995 because of his

wife’s pregnancy (Pet. 26-27) is also wrong. Respondent’s

testimony (E.R. 86-91, 102, 122-127), his wife’s abortion

notice (Id. 220), and corroborating country conditions

information is strong evidence that resistance to forced

family planning was the motive for the government's

pursuit.

As contemplated by this Court in Elias-Zacarias, the

administrative record in the instant case contains compel-

ling circumstantial evidence that Chinese authorities

persecuted respondent on account of his challenges to

Chinese policies, including coerced population control; that

a reasonable person in respondent’s circumstances would

fear persecution; and that a clear probability of such persecu-

tion exists in the future. Because a reasonable person in

respondent’s circumstances would fear this persecution, any

21

reasonable adjudicator would be compelled to conclude

that, contrary to the BIA’s decision in this case, respon-

dent is eligible for asylum and entitled to withholding of

removal.

5. The government’s suggestion that a “new, independent

determination regarding withholding of removal” (id. at

22) is necessary because an applicant must meet a higher

standard of proof for withholding than for asylum eligibil-

ity is without foundation. The IJ evaluated respondent’s

claims for withholding of removal and asylum eligibility, so

the administrative record before the court of appeals was

complete with respect to both claims. Moreover, both

claims are based on the same set of facts, and therefore no

additional fact-finding would be necessary in order to

consider the withholding of removal claim. The govern-

ment’s position is further belied by this Court’s decision

that “those who can show a clear probability of persecution

are entitled to mandatory suspension of deportation and

are eligible for discretionary asylum.” Cardoza-Fonseca,

480 U.S. at 444 (emphasis in original).’ See also INS v.

Doherty, 502 U.S. 314, 332 (1992) (Scalia, J. concur-

ring/dissenting) (“Because of the mandatory nature of the

withholding-of-deportation provision, the Attorney General’s

" In this regard, the government’s reliance on FPC v. Idaho Power

Co., 344 U.S. 17, 20 (1952), is misplaced. Idaho Power Co. addressed a

situation where an appellate court, after finding that the Federal Power

Commission (FPC) had improperly attached conditions to a license,

instead of remanding, ordered the agency to issue the license without

the conditions. Jd. at 20. This Court stated that such an action usurped

an important administrative function, because it precluded the

Commission from considering whether an alternative course, such as

withholding consent to any license, might better fulfill its mandate to

coordinate and oversee energy development. Jd. Here, no comparable

problem exists, because where a respondent shows a clear probability of

persecution, the only alternative to withholding is asylum, and the

court remanded to the Attorney General the question of whether

asylum should be granted as a matter of discretion.

22

power to deny withholding claims differs significantly from

his broader authority to administer discretionary forms of

relief such as asylum... . ”).

6. The government cites several cases for the proposition

that the Ninth Circuit purportedly “makes its own find-

ings and usually awards withholding *** [and] some-

times seeks to justify its award of relief by invoking the

presumption of future persecution that arises by regula-

tion in administrative proceedings when there has been a

finding of past persecution,” or by rendering “its own

assessment in the first instance of the evidence and its

weight.” Pet. 22-23. But in Chen, the court below neither

made its own findings, nor assessed the evidence in the

first instance. Instead, it reviewed the administrative

record and the findings of the BIA. See Pet. App. 4a. Nor

did it rely on a presumption of future persecution simply

because respondent had been persecuted in the past. See

supra, at 19. Consequently, Chen is not a suitable vehicle

for the government to challenge these other Ninth Circuit

cases.

7. The Ninth Circuit declines to remand an asylum case

only where: the agency. had the first opportunity to con-

sider the key factual and legal issues; there is a complete

administrative record; and, “on the record * * * it is clear

that [the court] would be compelled to reverse [the BIA’s]

decision if it had decided the matter against the appli-

cant.” Navas v. INS, 217 F.3d 646, 662 (9th Cir. 2000).

This approach is consistent with the practices of other

circuits. The Third Circuit, for example, has adopted the

view that no remand to the BIA is necessary where a

reasonable fact-finder would be compelled to conclude that

the asylum applicant has established his or her claims.

Thus, in Chang, 119 F.3d 1055, the court reversed a BIA

decision denying asylum and withholding of deportation,

declining to remand the case to the BIA. The court noted

that the scope of review of a BIA decision denying asylum

and withholding is narrow (id. at 1060), and that reversal

is proper “only if a reasonable fact-finder would be forced

23

to conclude that [the applicant] has shown the requisite

fear of persecution.” Jd. at 1065-66 (citing Elias-Zacarias,

502 U.S. at 481). After reviewing the administrative

record, paying particular attention to those aspects related

to the BIA’s reasons for denying the relief requested, the

court determined that Chang presented such a situation,

and accordingly, reversed the BIA and granted withhold-

ing of removal and eligibility for asylum. 119 F.3d at 1068.

See also Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001)

(reversing BIA decision “wholly unsupported by the

record,” and concluding that applicant “satisfied both the

standards for political asylum and those for withholding of

deportation”); Ezeagwuna v. Ashcroft, No. 01-3294, 2002

U.S. App. LEXIS 15278 (3d Cir. July 30, 2002) (overturn-

ing the BIA’s adverse credibility determination, and

reversing the BIA’s denial of asylum on the merits and

withholding because based on the administrative record, a

reasonable fact-finder would be compelled to do so).

Similarly, in Fergiste v. INS, 138 F.3d 14, 20 (1998), the

First Circuit reversed a decision by the BIA denying

asylum and withholding, and concluded that a remand for

further fact-finding was “not necessary in this case,”

because the record below justified an immediate grant of

relief.

8. The cases the government cites in support of its

proposition that the Ninth Circuit's decision in Chen

conflicts with other circuits (Pet. 27) differ from the

present case in crucial respects that made remand appro-

priate in those cases. In Yang v. McElroy, 277 F.3d 158 (2d

Cir. 2002), after reversing the BIA’s denial of asylum, the

court remanded because of a specific deficiency in the

record that required development by the agency. The court

found that “(t]he BIA in 1998 affirmed a 1994 decision of

the IJ predicated primarily on a 1993 State Department

Country Report.” Jd. at 163. In deciding to remand Yang’s

case to the BIA, the court emphasized “the significant time

gap between the 1993 State Department Country Report

and the time of the proposed deportation,” and the fact

that the agency’s denial of asylum centered on country

24

conditions evidence regarding treatment of dissidents that

was more than eight years old. Jd. Similarly, in Begza-

towski v. INS, 278 F.3d 665, 671-72 (7th Cir. 2002), the

court reversed the BIA’s conclusion that the applicant had

not suffered persecution in Macedonia, but remanded to

the BIA to consider whether the applicant’s fear of future

persecution was rebutted by recent State Department

reports on changed country conditions in the seven years

since the applicant’s initial request for asylum.

Chen differs from Yang and Begzatowki in several

ways. In Chen, country conditions evidence in the record,

submitted in April 1999, includes documents published in

1998 and 1999. E.R. 169-275. Consequently, the time lag

between the date of this evidence, the BIA’s decision in

April 2000, and the court of appeals’ ruling in September

2001 is not nearly as great as in either of those cases.

Unlike in Yang, in Chen, the agency did not primarily base

its denial of asylum on country conditions information,

referring only incidentally to “State Department reports”

(Pet. App. 56a). And, in contrast to both Yang and Begza-

towski, the administrative record in Chen contains evi-

dence still central to respondent’s asylum claim, namely,

testimony at Congressional hearings in 1998 confirming

that Chinese authorities persist in severe persecution of

persons who resist official population control policies by

flouting the age requirement for marriage and then seek

to have a child. E.R. 181-187. Particularly in light of

recent findings by the Executive branch that Chinese

officials clearly continue to use “coercive elements in law

and practice” against those who resist population control

policies (see infra, at 27-28), remand to the BIA for current

country conditions evidence is not necessary in the instant

case.

In Alvarado-Carillo, 251 F.3d at 56, the court reversed

the BIA’s adverse credibility determination and remanded

because the applicant'had not had the opportunity “to

address * * * items raised sua sponte in the BIA Opinion,”

which would have rendered him ineligible for asylum —

25

again, a concern not at issue in Chen. Stewart v. INS, 181

F.3d 587 (4th Cir. 1999) involved an entirely different

proceeding from the one presented here: a motion to

reopen deportation proceedings to apply for adjustment of

status based on the applicant’s marriage to a United

States citizen. In affirming the BIA’s decision to deny the

applicant’s motion, the court noted that if it were to

reverse the BIA’s decision, it would remand the case to the

BIA for first consideration of the merits of the application

(id. at 595 n.6), an approach that has nothing to do with

review of a denial of an asylum application, especially

where, as here, the agency has already considered the

issues, and the court’s review relied on a complete agency

record. In Gailius, 147 F.3d 34, the court remanded after

reversing the BIA because the IJ and the BIA “failed to

address much of [the] evidence” or even make a “determi-

nation of credibility” in the first instance. Jd. at 47. In the

instant case, the agency considered the evidence mar-

shaled by respondent and made a credibility determina-

tion that the court of appeals could review. The passage

cited by the government from Rhoa-Zamora v. INS, 971

F.2d 26 (7th Cir. 1992) is also inapposite. While the Rhoa-

Zamora court did announce that it “will not weigh evi-

dence that the [BIA] has not previously considered,” it did

so in response to the applicant’s request that the court

consider new evidence never presented to the BIA. Id. at

34. In Chen, by contrast, the court of appeals could (and

did) base its decision on evidence already in the agency

record.

9. The application of the primary jurisdiction doctrine to

require remand in this case would be especially inappro-

priate in light of the harm to respondent. See National

Communications Ass’n v. AT&T, 46 F.3d 220, 223 (2d Cir.

1995) (“A court should be reluctant to invoke the doctrine

of primary jurisdiction, which often, but not always,

results in added expense and delay to the litigants where

the nature of the action deems the application of the

doctrine inappropriate.”). See also Sierra Club v. Peterson,

185 F.3d 349, 369-70 (5th Cir. 1999). Contrary to the

26

government's implication that respondent would not suffer

from the delay created by a remand on the merits (Pet.

25), remand would virtually guarantee that he would still

be detained, causing him harm as well as significant

unnecessary expense to the government. An INS district

director is accorded nearly complete discretion to detain

arriving aliens, such as respondent, without bond, particu-

larly once an order of removal has been entered. See, e.g.,

8 C.F.R. 235.3(4)(ii); 236.1; 241.4. Here, the INS detained

respondent from his arrival in 1998 until October 24,

2001, releasing him only after the court of appeals granted

withholding of removal. INS Order of Release (Resp. App.

17a) (indicating that the INS released respondent because

the court of appeals granted him withholding).

10. The government maintains, incorrectly, that the

court of appeals erred in reversing the instant case with-

out remand, because the decisicn “may implicate a

determination of policy or judgment which the agency

alone is authorized to make.” Pet. 24, citing SEC uv.

Chenery, 318 U.S. 388. Similarly, the government alleges

that the decision threatens “foreign affairs, national

defense, and [the government’s power over] defining the

national community” (Pet. 21) by usurping “a fundamental

sovereign attribute exercised by the Government’s political

departments largely immune from judicial control.” Jd. at

28 (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210

(1953)). The government’s characterization of the court of

appeals’ role in this case is inapt. The court granted

respondent’s application for withholding of removal and

found him eligible for asylum pursuant to its authority

under 8 U.S.C. 1252, in which Congress specifically contem-

plated judicial review of BIA determinations in asylum cases,

and 8 U.S.C. 1101(aX42)(B), in which Congress determined

that resistance to coercive population control policies is a

ground for asylum. While this Court generally disfavors

reversals of BIA decisions that may implicate foreign

policy issues traditionally in the realm of the executive,

such a concern is misplaced here. When it enacted the

ITIRIRA in 1996, Congress explicitly provided that an

27

individual persecuted for “resistance to a coercive popula-

tion control program” is considered a “refugee” eligible for

asylum. 8 U.S.C. 1101(a)(42)(B). This statutory change,

which overruled the BIA’s 1989 holding that China’s “one

family-one child” policy was not persecutory on its -face

(Matter of Chang, 20 I. & N. Dec. 38), was prompted by

extensive evidence gathered at congressional hearings on

China’s coercive population control policies. See Coercive

Population Control in China: Hearings Before the Sub-

comm. on the Int'l Operations & Human Rights of the

House Comm. on Int'l Relations, 104th Cong. (1995); 142

Cong. Rec. 6008 (1996) (describing China’s forced abortion

and forced sterilization practices as among the “most

gruesome human rights violations”); Zhao v. United States

Dep't of Justice, 265 F.3d 83, 91-93 (2d Cir. 2001).

Substantially similar findings recently led the Ad-

ministration last month to conclude that the United States

is precluded from making contributions to the United

Nations Population Fund (UNFPA) by the Kemp-Kasten

amendment, which provides that no funds may be given to

any organization which “supports or participates in the

management of a program of coercive abortion or involun-

tary sterilization” (Pub. L. No. 107-115), because of UN-

FPA’s operations in China. See U.S. Dep’t of State, Press

Statement: FY 2002 Funding for the UN Population Fund

(July 22, 2002). This conclusion was based on the report of

an assessment team that traveled to China in May 2002 at

the request of the Secretary of State, and concluded that

“China’s population practices,” which “retain coercive

elements in law and in practice,” amount to a “program of

coercive abortion,” and that the Chinese government “has

recently confirmed these kinds of policies on a national

basis.” Bureau of Population, Refugees, and Migration,

U.S. Dep’t of State, Analysis of Determination that Kemp-

Kasten Amendment Precludes Further Funding to UNFPA

under Pub. L. 107-115 (July 18, 2002). The case at bar

thus presents the unique situation of a refugee whose

grounds for seeking withholding of removal and asylum

have been explicitly confirmed based on findings by both

28

the Legislative and Executive Branches. A less apt candi-

date for remand for “a determination of policy or judg-

ment” (Pet. 24) by the Executive is difficult to imagine.*

11. The government seeks to persuade this Court that

there is a crisis in the Ninth Circuit which “compromises

enforcement of the immigration laws.” Pet. 29. Yet, in

addition to the irrelevance of this argument to the case at

bar, government statistics and other pertinent data show

that no such crisis exists. According to the government,

EOIR has calculated that its adjudicators complete 50,000

to 75,000 asylum cases annually, of which approximately

one-third arise in the Ninth Circuit (Pet. 29), i.e. roughly

17,000 to 25,000 — or an average of 21,000 cases. The

government states that the Ninth Circuit decided 333

asylum cases in FY 2001, but does not identify a specific

source for that data. Pet. 21. These 333 asylum cases

would roughly amount to only 1.6% of 21,000 cases. Using

Lexis and Westlaw, respondent has only been able to

identify 188 reported and unreported asylum decisions by

the Ninth Circuit in FY 2001. A review of those decisions

demonstrates that 75% of the time (in 133 out of 188

cases), the Ninth Circuit affirmed the BIA. The court

reversed without remanding on the merits in only 28 cases

(15% of 188), and, in each of these, remanded to the BIA to

exercise its discretion whether or not to grant asylum.

Twenty-eight cases would represent only 0.1% of the

21,000 asylum cases “that occur[red] within the Ninth

Circuit” (Pet. 21) in FY 2001. Such a small percentage

* The other cases cited by the government, Fiallo v. Bell, 430 U.S.

787 (1977), Kleindienst v. Mandel, 408 U.S. 753 (1972), and Harisiades

v. Shaughnessy, 342 U.S. 580, 588-89 (1952), are also irrelevant here.

Those cases involved the deference the judiciary affords Congress in

assessing the constitutionality of immigration laws. Chen does not

involve a challenge, constitutional or otherwise, to the authority of

Congress over immigration laws.

29

neither undercuts the enforcement of immigration laws,

nor warrants this Court’s intervention.

12. The present case establishes that the court below

applied the proper standard of review, one entirely consis-

tent with other circuits, and with principles of primary

jurisdiction and deference to the agency. Accordingly, as

with the question of credibility, this Court should deny the

petition for a writ of certiorari on the issue of remand.

At most, the government’s reliance on a purported

principle of administrative law that the courts must

always remand cases to administrative agencies rather

than granting relief outright would only establish that

Chen should be held pending this Court’s resolution of

United States v. Bean, No. 01-704. In Bean, the govern-

ment contends that if a federal court reverses the Bureau

of Alcohol, Tobacco and Firearms’ refusal to reinstate an

individual’s firearms rights, the matter must be remanded

to the agency. The government rests this argument on the

identical authorities - e.g., Florida- Power & Light Co. v.

Lorion and FPC v. Idaho Power Co. — that it invokes in its

petition in this case. See generally 01-704 Reply Br. 5-7. As

such, this Court’s decision in Bean would have a signifi-

cant influence on the outcome of the question regarding

remand in Chen.

30

CONCLUSION

The petition for a writ of certiorari should be denied,

or in the alternative, this case should be held pending this

Court’s decision in U.S. v. Bean.

Respectfully submitted,

MONICA SCHURTMAN

(Counsel of Record)

UNIVERSITY OF IDAHO,

COLLEGE OF LAW

LEGAL AID CLINIC

PO Box 442322

Moscow, ID 83844-2322

(208) 885-6541

Of Counsel

WILLIAM SCHURTMAN

160 E. 38 St. #16 E

New York, N.Y. 10016

THOMAS C. GOLDSTEIN

Amy HOWE

GOLDSTEIN & HOWE, P.C.

4607 Asbury Pl. N.W.

Washington, D.C. 20016

August 2002

la

APPENDIX A

REGULATORY PROVISIONS INVOLVED

(IN ADDITION TO STATUTORY AND

REGULATORY PROVISIONS CITED IN

PETITION APPENDIX E)

1. Section 208.13 of Title 8 of the Code of Federal Regu-

lations provides as follows:

§ 208.13 Establishing asylum eligibility.

(a) Burden of proof. The burden of proof is on

the applicant for asylum to establish that he or she is

a refugee as defined in section 101(a)(42) of the Act.

The testimony of the applicant, if credible, may be

sufficient to sustain the burden of proof without cor-

roboration. The fact that the applicant previously es-

tablished a credible fear of persecution for purposes of

section 235(b)(1)(B) of the Act does not relieve the

alien of the additional burden of establishing eligibil-

ity for asylum.

(b) Eligibility. The applicant may qualify as a

refugee either because he or she has suffered past

persecution or because he or she has a well-founded

fear of future persecution.

(1) Past persecution. An applicant shall

be found to be a refugee on the basis of past per-

| secution if the applicant can establish that he or

she has suffered persecution in the past in the

applicant’s country of nationality or, if stateless,

in his or her country of last habitual residence,

on account of race, religion, nationality, member-

ship in a particular social group, or political opin-

ion, and is unable or unwilling to return to, or

avail himself or herself of the protection of, that

country owing to such persecution. An applicant

who has been found to have established such

2a

past persecution shall also be presumed to have

a well-founded fear of persecution on the basis of

the original claim. That presumption may be re-

butted if an asylum officer or immigration judge

makes one of the findings described in paragraph

(b)(1)(i) of this section. If the applicant’s fear of

future persecution is unrelated to the past perse-

cution, the applicant bears the burden of estab-

lishing that the fear is well-founded.

(i) Discretionary referral or de-

nial. Except as provided in paragraph

(b)(1)(iii) of this section, an asylum officer

shall, in the exercise of his or her discretion,

refer or deny, or an immigration judge, in

the exercise of his or her discretion, shall

deny the asylum application of an alien

found to be a refugee on the basis of past

persecution if any of the following is found

by a preponderance of the evidence:

(A) There has been a fundamen-

tal change in circumstances such that

the applicant no longer has a well-

founded fear of persecution in the ap-

plicant’s country of nationality or, if

stateless, in the applicant’s country of

last habitual residence, on account of

race, religion, nationality, membership

in a particular social group, or political

opinion; or

(B) The applicant could avoid fu-

ture persecution by relocating to an-

other part of the applicant’s country

of nationality or, if stateless, another

part of the applicant’s country of last

habitual residence, and under all the

3a

circumstances, it would be reasonable

to expect the applicant to do so.

(ii) Burden of proof. In cases in

which an applicant has demonstrated past

persecution under paragraph (b)(1) of this

section, the Service shall bear the burden of

establishing by a preponderance of the evi-

dence the requirements of paragraphs

(b)(1)(i)(A) or (B) of this section.

(iii) Grant in the absence of well-

founded fear of persecution. An appli-

cant described in paragraph (b)(1)(i) of this

section who is not barred from a grant of

asylum under paragraph (c) of this section,

may be granted asylum, in the exercise of

the decision-maker’s discretion, if:

(A) The applicant has demon-

strated compelling reasons for being

unwilling or unable to return to the

country arising out of the severity of

the past persecution; or

(B) The applicant has established

that there is a reasonable possibility

that he or she may suffer other serious

harm upon removal to that country.

(2) Well-founded fear of persecution.

(i) An applicant has a well-founded

fear of persecution if:

(A) The applicant has a fear of

persecution in his or her country of na-

tionality or, if stateless, in his or her

country of last habitual residence, on

account of race, religion, nationality,

4a

membership in a particular social

group, or political opinion;

((B) There is a reasonable possi-

bility of suffering such persecution if he

or she were to return to that country;

and

(C) He or she is unable or unwill-

ing to return to, or avail himself or her-

self of the protection of, that country

because of such fear.

(ii) An applicant does not have a well-

founded fear of persecution if the applicant

could avoid persecution by relocating to an-

other part of the applicant’s country of na-

tionality or, if stateless, another part of the

applicant’s country of last habitual resi-

dence, if under all the circumstances it

would be reasonable to expect the applicant

to do so.

(iii) In evaluating whether the appli-

cant has sustained the burden of proving

that he or she has a well-founded fear of

persecution, the asylum officer or immigra-

tion judge shall not require the applicant to

provide evidence that there is a reasonable

possibility he or she would be singled out

individually for persecution if:

(A) The applicant establishes

that there is a pattern or practice in his

or her country of nationality or, if state-

less, in his or her country of last habit-

ual residence, of persecution of a group

of persons similarly situated to the

applicant on account of race, religion,

5a

nationality, membership in a particular

social group, or political opinion; and

(B) The applicant, establishes his

or her own inclusion in, and identifica-

tion with, such group of persons such

that his or her fear of persecution upon

return is reasonable.

(3) Reasonableness of internal reloca-

tion. For purposes of determinations under para-

graphs (b)(1Xi), (b\1Xii), and (b\(2) of this

section, adjudicators should consider, but are not

limited to considering, whether the applicant

would face other serious harm in the place of

Suggested relocation; any ongoing civil strife

within the country; administrative, economic, or

judicial infrastructure; geographical limitations;

and social and cultural constraints, such as age,

gender, health, and social and familial ties.

Those factors may, or may not, be relevant, de-

pending on all the circumstances of the case, and

are not necessarily determinative of whether it

would be reasonable for the applicant to relocate.

(i) In cases in which the applicant has

not established past persecution, the appli-

cant shall bear the burden of establishing

that it would not be reasonable for him or

her to relocate, unless the persecution is by

a government or is government-sponsored.

(ii) In cases in which the persecutor is

a government or is government-sponsored,

or the applicant has established persecution

in the past, it shall be presumed that inter-

nal relocation would not be reasonable,

unless the Service establishes by a prepon-

derance of the evidence that, under all the

6a

circumstances, it would be reasonable for

the applicant to relocate. ;

* * *

2. Section 208.16 of the Code of Federal Regulations

provides as follows:

§ 208.16 Withholding of removal under section

241(b)(3)(B) of the Act and withhold-

ing of removal under the Conven-

tion Against Torture.

(a) Consideration of application for with-

holding of removal. An asylum officer shall not de-

cide whether the exclusion, deportation, or removal of

an alien to a country where the alien’s life or freedom

would be threatened must be withheld, except in the

case of an alien who is otherwise eligible for asylum

but is precluded from being granted such status due

solely to section 207(a)(5) of the Act. In exclusion, de-

portation, or removal proceedings, an immigration

judge may adjudicate both an asylum claim and a re-

quest for withholding of removal whether or not asy-

lum is granted.

(b) Eligibility for withholding of removal

under section 241(b)(3) of the Act; burden of

proof. The burden of proof is on the applicant for

withholding of removal under section 241(b)(3) of the

Act to establish that his or her life or freedom would

be threatened in the proposed country of removal on

account of race, religion, nationality, membership in a

particular social group, or political opinion. The tes-

timony of the applicant, if credible, may be sufficient

to sustain the burden of proof without corroboration.

The evidence shall be evaluated as follows:

7a

(1) Past threat to life or freedom.

(i) If the applicant is determined to

have suffered past persecution in the pro-

posed country of removal on account of race,

religion, nationality, membership in a par-

ticular social group, or political opinion, it

shall be presumed that the applicant’s life or

freedom would be threatened in the future

in the country of removal on the basis of the

original claim. This presumption may be re-

butted if an asylum officer or immigration

judge finds by a preponderance of the evi-

dence:

(A) There has been a fundamen-

tal change in circumstances such that

the applicant’s life or freedom would

not be threatened on account of any of

the five grounds mentioned in this

paragraph upon the applicant’s removal

to that country; or

(B) The applicant could avoid a

future threat to his or her life or freedom

by relocating to another part of the pro-

posed country of removal and, under all

the circumstances, it would be reason-

able to expect the applicant to do so.

(ii) In cases in which the applicant

has established past persecution, the

Service shall bear the burden of establishing

by a preponderance of the evidence the

requirements of paragraphs (bX 1)iXA) or

(b)1)iXB) of this section.

(iii) If the applicant’s fear of future

threat to life or freedom is unrelated to the

past persecution, the applicant bears the

8a

burden of establishing that it is more likely

than not that he or she would suffer such

harm. |

(2) Future threat to life or freedom. An

applicant who has not suffered past persecution

may demonstrate that his or her life or freedom

would be threatened in the future in a country if

he or she can establish that it is more likely than

not that he or she would be persecuted on ac-

count of race, religion, nationality, membership

in a particular social group, or political opinion

upon removal to that country. Such an applicant

cannot demonstrate that his or her life or free-

dom would be threatened if the asylum officer or

immigration judge finds that the applicant could

avoid a future threat to his or her life or freedom

by relocating to another part of the proposed

country of removal and, under all the circum-

stances, it would be reasonable to expect the ap-

plicant to do so. In evaluating whether it is more

likely than. not that the applicant’s life or free-

dom would be threatened in a particular country

on account of race, religion, nationality, member-

ship in a particular social group, or political opin-

ion, the asylum officer or immigration judge shall

not require the applicant to provide evidence that

he or she would be singled out individually for

such persecution if:

(i) The applicant establishes that in

that country there is a pattern or practice of

persecution of a group of persons similarly

situated to the applicant on account of race,

religion, nationality, membership in a par-

ticular social group, or political opinion; and

(ii) The applicant establishes his or

her own inclusion in and identification with

9a

such group of persons such that it is more

likely than not that his or her life cr freedom

would be threatened upon return to that

country.

(3) Reasonableness of internal reloca-

tion. For purposes of determinations under

paragraphs (b)(1) and (b)(2) of this section, adju-

dicators should consider, among other things,

whether the applicant would face other serous

harm in the place of Suggested relocation; any

ongoing civil strife within the country; adminis-

trative, economic, or judicial infrastructure; geo-

graphical limitations; and social and cultural

constraints, such as age, gender, health, and so-

cial and familial ties. These factors may or may

not be relevant, depending on all the circum-

stances of the case, and are not necessarily de-

terminative of whether it would be reasonable for

the applicant to relocate.

(i) In cases in which the applicant has

not established past persecution, the appli-

cant shall bear the burden of establishing

that it would not be reasonable for him or

her to relocate, unless the persecutor is a gov-

ernment or is government-sponsored.

(ii) In cases in which the persecutor is

a government or is government-sponsored,

or the applicant has established persecution

in the past, it shall be presumed that inter-

nal relocation would not be reasonable,

unless the Service establishes by a prepon-

derance of the evidence that under all the

circumstances it would be reasonable for the

applicant to relocate.

10a

(c) Eligibility for withholding of removal

under the Convention Against Torture.

(1) For purposes of regulations under Title

II of the Act, “Convention Against Torture” shall

refer to the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, subject to any reser-

vations, understandings, declarations, and provi-

sos contained in the United States Senate

resolution of ratification of the Convention, as

implemented by section 2242 of the Foreign Af-

fairs Reform and Restructuring Act of 1998

(Pub.L. 105-277, 112 Stat. 2681, 2681-821). The

definition of torture contained in § 208.18(a) of

this part shall govern all decisions made under

regulations under Title II of the Act about the

applicability of Article 3 of the Convention

Against Torture.

(2) The burden of proof is on the applicant

for withholding of removal under this paragraph

to establish that it is more likely than not that he

or she would be tortured if removed to the pro-

posed country of removal. The testimony of the

applicant, if credible, may be sufficient to sustain

the burden of proof without corroboration.

(3) In assessing whether it is more likely

than not that an applicant would be tortured in

the proposed country of removal, all evidence

relevant to the possibility of future torture shall

be considered, including but not limited to:

(i) Evidence of past torture inflicted

upon the applicant;

(ii) Evidence that the applicant could

relocate to a part of the country of removal

where he or she is not likely to be tortured;

lla

(iii) Evidence of gross, flagrant or

mass violations of human rights within the

country of removal, where applicable; and

(iv) Other relevant information re-

garding conditions in the country of removal.

(4) In considering an application for with-

holding of removal under the Convention Against

Torture; the immigration judge shall first deter-

mine whether the alien is more likely than not to

be tortured in the country of removal. If the im-

migration judge determines that the alien is

more likely than not to be tortured in the country

of removal, the alien is entitled to protection un-

der the Convention Against Torture. Protection

under the Convention Against Torture will be

granted either in the form of withholding of re-

moval or in the form of deferral of removal. An

alien entitled to such protection shall be granted

withholding of removal unless the alien is subject

to mandatory denial of withholding of removal

under paragraphs (d)(2) or (d)(3) of this section.

If an alien entitled to such protection is subject to

mandatory denial of withholding of removal un-

der paragraphs (d)(2) or (d)(3) of this section, the

alien’s removal shall be deferred under § 208.17(a).

(d) Approval or denial of application.

(1) General. Subject to paragraphs (d)(2)

and (d)(3) of this section, an application for with-

holding of deportation or removal to a country of

proposed removal shall be granted if the appli-

cant’s eligibility for withholding is established

pursuant to paragraphs (b) or (c) of this section.

(2) Mandatory denials. Except as pro-

vided in paragraph (d\(3) of this section, an ap-

plication for withholding of removal under

12a

section 241(b)(3) of the Act or under the Conven-

tion Against Torture shall be denied if the appli-

cant falls within section 241(b)(3)(B) of the Act

or, for applications for withholding of deportation

adjudicated in proceedings commenced prior to

April 1, 1997, within section 243(h)(2) of the Act

as it appeared prior to that date. For purposes of

section 241(bXS\BXii) of the Act, or section

243(h)(2)(B) of the Act as it appeared prior to

April 1, 1997, an alien who has been convicted of

a particularly serious crime shall be considered

to constitute a danger to the community. If the

evidence indicates the applicability for one or

more of the grounds for denial of withholding

enumerated in the Act, the applicant shall have

the burden of proving by a preponderance of the

evidence that such grounds do not apply.

(3) Exception to the prohibition on

withholding of deportation in certain cases.

Section 243(h\3) of the Act, as added by section

413 of Pub.L. 104-132 (110 Stat. 1214), shall ap-

ply only to applications adjudicated in proceed-

ings commenced before April 1, 1997, and in

which final action had not been taken before

April 24, 1996. The discretion permitted by that

section to override section 243(h)\(2) of the Act

shall be exercised only in the case of an applicant

convicted of an aggravated felony (or felonies)

where he or she was sentenced to an aggregate

term of imprisonment of less than 5 years and

the immigration judge determines on an individ-

ual basis that the crime (or crimes) of which the

applicant was convicted does not constitute a

particularly serious crime. Nevertheless, it shall

be presumed that an alien convicted of an aggra-

vated felony has been convicted of a particularly

serious crime. Except in the cases specified in

13a

this paragraph, the grounds for denial of with-

holding of deportation in section 243(h)(2) of the

Act as it appeared prior to April 1, 1997, shall be

deemed to comply with the Protocol Relating to

the Status of Refugees, Jan. 31, 1967, T.LA.S.

No. 6577. “

(e) Reconsideration of discretionary de-

nial of asylum. In the event that an applicant is

denied asylum solely in the exercise of discretion,

and the applicant is subsequently granted with-

holding of deportation or removal under this sec-

tion, thereby effectively precluding admission of |

the applicant’s Spouse or minor children follow-

ing to join him or her, the denial of asylum shall

be reconsidered. Factors to be considered will in-

clude the reasons for the denial and reasonable

alternatives available to the applicant such as

reunification with his or her spouse or minor

children in a third country.

provides as follows:

§ 208.18 Implementation of the Convention

Against Torture.

(a) Definitions. The definitions in this subsec-

tion incorporate the definition of torture contained in

Article 1 of the Convention Against Torture, subject

to the reservations, understandings, declarations, and

provisos contained in the United States Senate reso-

lution of ratification of the Convention.

(1) Torture is defined as any act by which

severe pain or suffering, whether physical or

l4a

mental, is intentionally inflicted on a person for

such purposes as obtaining from him or her or a

third person information or a confession, punish-

ing him or her for an act he or she or a third per-

son has committed or is suspected of having

committed, or intimidating or coercing him or

her or a third person, or for any reason based on

discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of or

with the consent or acquiescence of a public offi-

cial or other person acting in an official capacity.

(2) Torture is an extreme form of cruel and

inhuman treatment and does not include lesser

forms of cruel, inhuman or degrading treatment

or punishment that do not amount to torture.

(3) Torture does not include pain or suffer-

ing arising only from, inherent in or incidental to

lawful sanctions. Lawful sanctions include judi-

cially imposed sanctions and other enforcement

actions authorized by law, including the death

penalty, but do not include sanctions that defeat

the object and purpose of the Convention Against

Torture to prohibit torture.

(4) In order to constitute torture, mental

pain or suffering must be prolonged mental harm

caused by or resulting from:

(i) The intentional infliction or threat-

ened infliction of severe physical pain or suf-

fering;

(ii) The administration or application,

or threatened administration or application,

of mind altering substances or other proce-

dures calculated to disrupt profoundly the

senses or the personality;

15a

(iii) The threat of imminent death; or

(iv) The threat that another person

will imminently be subjected to death, se-

vere physical pain or suffering, or the ad-

ministration or application of mind altering

substances or other procedures calculated to

disrupt profoundly the sense or personality.

(5) In order to constitute torture, an act

must be specifically intended to inflict severe

physical or mental pain or suffering. An act that

results in unanticipated or unintended severity

of pain and suffering is not torture.

(6) In order to constitute torture an act

must be directed against a person in the of-

fender’s custody or physical control.

(7) Acquiescence of a public official re-

quires that the public official, prior to the activ-

ity constituting torture, have awareness of such

activity and thereafter breach his or her legal re-

sponsibility to intervene to prevent such activity.

(8) Noncompliance with applicable legal

procedural standards does not per se constitute

torture.

* * K

(e) Judicial review of claims for protection

from removal under Article 3 of the Convention

Against Torture.

(1) Pursuant to the provisions of section

2242(d) of the Foreign Affairs Reform ‘and Re-

structuring Act of 1998, there shall be no judicial

appeal or review of any action, decision, or claim

raised under the Convention or that section, ex-

cept as part of the review of a final order of

16a

removal pursuant to section 242 of the Act; pro-

vided however, that any appeal or petition re-

garding an action, decision, or claim under the

Convention or under section 2242 of the Foreign

Affairs Reform and Restructuring Act of 1998

shall not be deemed to include or authorize the

consideration of any administrative order or de-

cision, or portion thereof, the appeal or review of

which is restricted or prohibited by the Act.

(2) Except as otherwise expressly provided,

nothing in this paragraph shall be construed to

create a private right of action or to authorize the

consideration or issuance of administrative or ju-

dicial relief.

[64 FR 8490, Feb. 19, 1999; 64 FR 13881, March

23, 1999]

17a

APPENDIX B

[LOGO] U.S. Department of Justice

Immigration and Naturalization Service

AT77 234 212

2035 North Central Avenue

Phoenix, Arizona 85004

Oct. 24, 2001

Monica Schurtman, Esquire

University of Idaho College of Law

Legal Aid Clinic

6th and Rayburn

Moscow, Idaho, 83844-2322

Dear Ms. Schurtman:

This is in response to your letter dated October 11,

2000, requesting the District Director to review Yi Quan

Chen’s case for consideration of release based on the

decision rendered by the United States Court of Appeals

for the Ninth Circuit.

Mr. Chen is a citizen and national of China who

initially applied for admission into the United States on

April 2, 1995, at the Miami International Airport with an

altered Korean passport. Mr. Chen was subsequently or-

dered excluded from the United States and was removed

from the United States to China on May 13, 1996.

Mr. Chen then attempted to re-enter into the United

States on September 18, 1998, when the vessel he was a

passenger in was interdicted in international waters by

the United States Coast Guard. Because Mr. Chen was

interdicted in international waters and brought into the

United States, he is an arriving alien.

18a

On June 7, 1999, an Immigration Judge ordered Mr.

Chen deported, denied his application for asylum, his

application for withholding of removal and relief under the

torture convention. Mr. Chen then reserved his right to

appeal the Immigration Judge’s decision.

On September 24, 1999, Mr. Chen’s request for a

change of custody status was denied when the Immigra-

tion Judge found that Mr. Chen was an arriving alien and

was therefore not eligible for a bond. Mr. Chen then

appealed this decision to the Board of Immigration Ap-

peals (BIA). On February 2, 2000, the BIA affirmed the

Immigration Judge’s decision that Mr. Chen is an arriving

alien and is not eligible for a bond.

On April 10, 2000, the BIA dismissed Mr. Chen’s appeal

challenging the Immigration Judge’s June 7, 1999, decision.

On April 16, 2000, Mr. Chen filed for and was granted a

Stay of Deportation with the Ninth Circuit Court of Appeals.

On September 11, 2001, the United States Court of

Appeals for the Ninth Circuit found Mr. Chen eligible for a

discretionary grant of asylum and a mandatory grant of

withholding of removal.

Based on these facts I am granting your request to

release Mr. Chen under an order of supervision.

Sincerely,

/s/ Thomas M. Baranick

Thomas M. Baranick

Assistant District Director

Detention and Removal Operations