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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1016

## Text

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-
TJS © ETE EE? sinsnimcniaiamenamnnithenaie

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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ili

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0052%3A2. Public record. Not legal advice.