                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-25-2004

Guo v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-2972




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                        PRECEDENTIAL      Peter D. Keisler
                                            Assistant Attorney General, Civil
        UNITED STATES                     Division
       COURT OF APPEALS                   Mark C. Walters
     FOR THE THIRD CIRCUIT                  Assistant Director
                                          Theordore C. Hirt, Esquire (Argued)
                                          Douglas E. Ginsburg, Esquire
             No. 03-2972                  John D. Williams, Esquire
                                          John M . McAdams, Jr., Esquire
                                          Department of Justice Civil Division
          JIAN LIAN GUO,                  Office of Immigration Litigation
                                          P.O. Box 878
                    Petitioner            Ben Franklin Station
                                          Washington, DC 20044
                   v.
                                                 Attorneys for Respondent
JOHN ASHCROFT, Attorney General of
        the United States
                                                OPINION OF THE COURT
                    Respondent

                                          AM BRO, Circuit Judge
On Petition for Review of a Final Order
                                                   Jian Lian Guo seeks review of the
 of the Board of Immigration Appeals
                                          order of the Board of Immigration Appeals
          (No. A77-297-574)
                                          (“Board”) denying her motion to reopen
                                          her immigration proceedings. Because we
                                          conclude that the Board failed to
         Argued June 29, 2004
                                          substantiate its decision and impermissibly
                                          relied on a prior adverse credibility
   Before: AMBRO, ALDISERT and
                                          determination unrelated to Guo’s petition
     STAPLETON, Circuit Judges
                                          for asylum, we grant the petition for
                                          r e vie w a nd r em a nd f or f ur th er
   (Opinion filed: October 25, 2004)
                                          proceedings.
Theodore N. Cox, Esquire                  I. Factual and Procedural History
Joshua Bardavid, Esquire (Argued)
                                                Guo is a native and citizen of
401 Broadway, Suite 701
                                          China. She entered the United States
New York, NY 10013
                                          without valid entry documentation on
                                          January 3, 2000. On January 21, 2000, the
      Attorney for Petitioner
                                          Immigration and Naturalization Service
(“INS”)1 charged her with removability              Sunday school; she allegedly evaded arrest
based on § 212(a)(7)(A)(i)(I) of the                and fled the country. Guo further claimed
Immigration and Nationality Act (“INA”),            to have left behind in China her first
8 U.S.C. § 1182(a)(7)(A)(i)(I). At a                husband, whom she had married in 1999
master calendar hearing on March 23,                and whose whereabouts she did not know.
2000, Guo conceded removability. The
same day she filed an application for
                                                           On August 2, 2000, an Immigration
asylum based on religious persecution and
                                                    Judge (“IJ”) denied Guo’s application for
requested withholding of removal under
                                                    asylum. The IJ found that Guo was not
INA § 241(b), 8 U.S.C. §1231(b), and
                                                    credible. He concluded that her story was
Article III of the United Nations
                                                    fabricated and, even if true, would not
Convention Against Torture.2
                                                    merit asylum. He also doubted Guo’s
        Guo initially justified her                 professed ignorance of her first husband’s
application for asylum on the basis of              location and speculated that he was in the
religious persecution. She stated that she          United States. He therefore denied her
had joined an “underground church” in               application for asylum. Guo appealed, and
China in 1996 and was baptized in July              on October 29, 2002, the Board affirmed
1997. In December 1999, government                  without issuing a separate opinion.
officials purportedly sought to arrest her at
                                                           On January 21, 2003, Guo filed a
a church meeting where she was teaching
                                                    motion to reopen the immigration
                                                    proceedings base d on intervening
   1
                                                    developments.      In March 2001, she
    On March 1, 2003, the INS ceased to             married Li Kang Chan in New York. On
exist as an agency within the Department            January 15, 2002, their first child was born
of Justice and the INS’s functions were             in Manhattan. Later that year, Guo
transferred to the Department of Homeland           discovered that she was again pregnant. 3
Security. See Homeland Security Act of              She thus claimed that she was entitled to
2002, Pub. L. No. 107-296, §§ 441, 451 &            asylum based on China’s one-child family
471, 116 Stat. 2135. The Board remains              planning policy; she feared that if she
within the U.S. Department of Justice.              returned to China she would be subject to
       2                                            China’s forcible sterilization policy and
       The United Nations Convention
                                                    other penalties. In support of her motion
Against Torture and Other Cruel, Inhuman
                                                    to reopen, Guo submitted a previous Board
or Degrading Treatment or Punishment,
                                                    decision granting reopening for a Chinese
Dec. 10, 1984, 1465 U.N.T.S. 85,
                                                    applicant with two United States-born
implemented in the United States by the
Foreign Affairs Reform and Restructuring
Act of 1998, Pub. L. No. 105-277, § 2242,
                                                       3
112 Stat. 2681-761 (codified at 8 U.S.C. §              The child was born on July 24, 2003,
1231).                                              after the Board issued its decision.

                                                2
children, a new application for asylum, her           fear of persecution on account of race,
marriage certificate, the birth certificate of        religion, nationality, membership in a
her first child, a letter from her obstetrician       particular social group, or political
describing her pregnancy, and an affidavit            opinion.” INA § 101(a)(42)(A), 8 U.S.C.
by retired demographer John Shields Aird,             § 1101(a)(42)(A). Forced abortion and
Ph.D.                                                 forced sterilization constitute persecution
                                                      “on account of political opinion.” INA
        The Board denied the motion to
                                                      § 101(a)(42), 8 U.S.C. § 1101(a)(42). An
reopen on June 16, 2003, explaining that
                                                      individual with a well-founded fear that
Guo had “failed to meaningfully address
                                                      she will be forced to undergo a coercive
the negative credibility determinations
                                                      population control procedure of this sort or
noted in the Immigration Judge’s
                                                      be subject to persecution for failure to do
decision.” The Board’s opinion stated that
                                                      so has a well founded fear of persecution.
even if it “were to find her claim credible,
                                                      Id.
she has not established a ‘well-founded
fear’ that a reasonable person in her                         An applicant bears the burden of
circumstances would fear persecution” on              proving eligibility for asylum based on
a protected basis. It concluded that the              specific facts and credible testimony. 8
evidence she had presented was                        C.F.R. § 208.13(a); Abdille v. Ashcroft,
insufficient to establish that “officials             242 F.3d 477, 482 (3d Cir. 2001). In order
punish returning Chinese nationals who                to demonstrate a well-founded fear of
are pregnant, have given birth to children            persecution, an applicant must satisfy three
in foreign countries, or prohibit them from           requirements: (1) he or she has a fear of
having more children upon their return.”              persecution in his or her native country;
                                                      (2) there is a reasonable possibility that he
       The Board had jurisdiction over
                                                      or she will be persecuted upon return to
Guo’s motion to reopen under 8 C.F.R.
                                                      that country; and (3) the applicant is
§ 1003.2(c). We have jurisdiction over her
                                                      unwilling to return to that country as a
timely petition for review pursuant to 8
                                                      result of his or her fear. 8 C.F.R. §
U.S.C. § 1252.
                                                      208.13(b)(2)(i).4
                 Discussion
I. Overview of the statutory framework                         4
                                                                The eligibility threshold for
        Section 208(b) of the INA, 8 U.S.C.           withholding of removal is even higher: the
§ 1158(b), confers on the Attorney General            Attorney General must determine that
discretion to grant asylum to an alien who            repatriation will more likely than not
is a “refugee.” An individual qualifies as            jeopardize the alien’s life or freedom on
a refugee if he or she is “unable or                  account of one of the protected grounds.
unwilling” to return to his or her country            INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).
“because of persecution or a well-founded             The applicant must therefore demonstrate
                                                      a “clear probability” of persecution.

                                                  3
       Board determinations are upheld if                        petitions for rehearing and
they are “supported by reasonable,                               motions for a new trial on
substantial, and probative evidence on the                       the basis of newly
record considered as a whole.” INS v.                            discovered evidence. This is
Elias-Zacarias, 502 U.S. 478, 481 (1992)                         e s p e c i a l l y tr ue i n a
(quoting 8 U.S.C. § 1105a(a)(4)). We will                        deportation proceeding,
reverse only if “the evidence not only                           where, as a general matter,
supports [a contrary] conclusion, but                            every delay works to the
compels it.” Id. at 481 n.1 (emphasis                            advantage of the deportable
omitted).        A d v e r s e c r e d ib i l i t y              alien who wishes merely to
determinations are factual matters and also                      remain in the United States.
are reviewed for substantial evidence.
                                                          INS v. Doherty, 502 U.S. 314, 323 (1992)
Balasubramanrim v. INS, 143 F.3d 157,
                                                          (citations omitted). In light of these
161 (3d Cir. 1998). They likewise will be
                                                          considerations, our review is highly
upheld unless “any reasonable adjudicator
                                                          deferential: we review the denial of a
would be compelled to conclude to the
                                                          motion to reopen for abuse of discretion.
contrary.” 8 U.S.C. § 1252(b)(4)(B).
                                                          Id. at 323. “Discretionary decisions of the
       In this case, we are asked to review               [Board] will not be disturbed unless they
the Board’s denial of Guo’s motion to                     are found to be arbitrary, irrational, or
reopen. As a general rule, motions to                     contrary to law.” Tipu v. INS, 20 F.3d 580,
reopen are granted only under compelling                  582 (3d Cir. 1994) (quotation omitted).
circumstances. The Supreme Court has
                                                          II. Application to Guo
explained:
                                                                 Guo makes two principal
        The granting of a motion to
                                                          arguments. First, she argues that the
        reopen        is   .    .  .
                                                          Board erred in considering the IJ’s adverse
        discretionary. . . . [T]he
                                                          credibility determination, which was based
        Attorney General has ‘broad
                                                          on facts unrelated to China’s family
        discretion’ to grant or deny
                                                          planning policies. Second, Guo suggests
        such motions. Motions for
                                                          that the documents she submitted are
        reopening of immigration
                                                          adequate to establish prima facie eligibility
        proceedings are disfavored
                                                          for asylum—a reasonable likelihood that
        for the same reasons as are
                                                          she would prevail on the merits if a motion
                                                          to reopen were granted—and she contends
                                                          that the Board erroneously held her to a
Senathirajah v. INS, 157 F.3d 210, 215 (3d                higher standard. We agree with her on
Cir. 1998). Given this higher standard, an                both counts.
applicant who does not qualify for asylum
                                                                A.      Adve r s e       c redib ility
also does not qualify for withholding of
                                                          determination
removal.

                                                      4
       In reviewing Guo’s initial petition          irrebuttably presumed to be false. But case
for asylum, the IJ deemed her testimony             law does not support that once an applicant
not credible. The Board relied on that              is deemed uncredible, she is excluded from
adverse credibility determination in                making further, unrelated asylum claims.5
evaluating her motion to reopen. Because            Nor does one adverse credibility finding
the basis for the IJ’s credibility assessment       beget another. On the contrary, an IJ must
was utterly unrelated to Guo’s later claim,         justify each adverse credibility finding
the Board erred by taking it into                   with statements or record evidence
consideration.                                      specifically related to the issue under
                                                    consideration. We have emphasized that
        Guo does not dispute that the IJ’s
                                                    adverse credibility findings are afforded
credibility determinations were supported
                                                    deference only if they are “supported by
by the record. Indeed, she would be hard
                                                    specific cogent reasons.” Gao v. Ashcroft,
pressed to argue otherwise. The IJ’s ruling
                                                    299 F.3d 266, 276 (3d Cir. 2002). Those
contained seven distinct references to her
                                                    reasons “must be substantial and bear a
lack of credibility. The adverse credibility
                                                    legitimate nexus to the finding.” Id.
findings were directly related to the central
events upon which Guo’s asylum claim                       Moreover, we are unable to imagine
initially was based: her alleged religious          a sufficient nexus between Guo’s suspect
persecution.                                        testimony concerning her alleged religious
                                                    persecution and the Board’s conclusion
        The legitimacy of an initial
                                                    about China’s family planning policy. The
credibility determination does not,
                                                    Government’s efforts to identify a
however, justify denial of all subsequent
applications for asylum. No one has
explained how the IJ’s adverse credibility
findings implicated Guo’s motion to
reopen on a ground not previously dealt
with by the IJ. Guo’s credibility (or lack            5
                                                       8 U.S.C. § 1158(d)(6) provides that an
thereof) for religious persecution simply is
                                                    alien adjudged by the Attorney General to
not relevant to her motion to reopen in this
                                                    have made a “frivolous application for
case, which relied principally on the fact
                                                    asylum,” as defined in the statute, will be
of her second pregnancy in contravention
                                                    permanently barred from entering the
of China’s one-child policy and on China’s
                                                    United States. There was no such finding
practice of persecuting those who violate
                                                    in this case. The protections afforded to
the policy.
                                                    the alien under this provision, as well as
      The Government’s argument                     its relatively infrequent application,
reduces to a bad-faith theory of asylum             indicate that Congress did not intend to
law: once credibility is tarnished, all             preclude an alien from reopening asylum
successive asylum applications are                  proceedings based solely on a prior
                                                    adverse credibility determination.

                                                5
sufficient connection are unpersuasive.6           Board itself in decisions discussed in the
And indeed our Court (albeit in non-               next section, disconnect adverse credibility
precedential opinions), as well as the             from China’s family planning policy. See,
                                                   e.g., Cai v. Ashcroft, 63 Fed. Appx. 625,
                                                   2003 WL 1972020 (3d Cir. Apr. 29, 2003)
 6                                                 (remanding to the Board for
   For example, the Government contends
                                                   reconsideration of a denial of asylum
that Guo’s credibility determination is
                                                   based on China’s family planning policy
relevant because it implicated her
                                                   where the petitioner, whom the IJ found
purported “family situation.” Namely,
                                                   lacked credibility, had two children at the
“[t]he Immigration Judge was entirely
                                                   time of filing and four at the time of her
unconvinced by Guo’s description of the
                                                   motion for reconsideration); cf. Lin v. INS,
status of her [first] husband, Yung Chu
                                                   78 Fed. Appx. 784, 2003 WL 22454477
Li.” To be sure, we find this aspect of
                                                   (2d Cir. Oct. 29, 2003) (reversing Board’s
Guo’s story troublesome. Guo has not
                                                   denial of a motion to reopen, based on
indicated that she and her first husband
                                                   adverse credibility finding, in light of a
were divorced, and yet subsequent to her
                                                   new translation of a sterilization certificate
initial hearing she married Li Kang Chan
                                                   and an affidavit by Mr. Aird).
in the United States and had two children
with him. But the Government has failed                  B . Well-founded            fear     of
to explain how Guo’s questionable marital          persecution
status is relevant to her asylum claim. She
                                                           Because we conclude that the Board
is not seeking lawful immigration status
                                                   was not entitled to rely on the IJ’s prior,
based on her marriage to Li Kang Chan.
                                                   unrelated adverse credibility determination
And it is not disputed that Guo has two
                                                   in denying Guo’s motion to reopen, we
children. Neither the identity of the
                                                   evaluate the alternative basis for its
children’s father nor his relationship to
                                                   holding. The Board “note[d] that, even if
Guo has any bearing on her claim.
                                                   [it] were to find her claim credible, she has
        Similarly, b ecause the IJ suspected
                                                   not established a ‘well-founded fear’ that
that Guo “is here for different reasons
                                                   a reasonable person in her circumstances
rather than because of religion,” the
                                                   would fear persecution” within the
Government argues that the adverse
                                                   meaning of the statute. Our review of this
credibility finding stemmed from his
                                                   argument has two parts. We consider
suspicion that Guo’s true motivation for
                                                   whether the Board applied the correct
seeking asylum was to remain in the
                                                   standard in assessing whether Guo
United States. This is simply speculative.
                                                   presented sufficient evidence, and we
Moreover, we are unaware of any case that
                                                   determine whether the Board abused its
holds that an applicant will be denied
                                                   discretion in deeming the evidence
asylum simply because building a better
                                                   insufficient.
life in America was a motivation for
leaving her country.

                                               6
           A motion to reopen must establish                Having concluded that the Board
prima facie eligibility for asylum. Sevoian          held Guo to an excessively rigorous
v. Ashcroft, 290 F.3d 166, 173, 173 n.5 (3d          standard, we might ordinarily remand for
Cir. 2002); Reyes v. INS, 673 F.2d 1087,             application of the proper standard. But in
1089 (9th Cir. 1982). In Sevoian, we                 this case, we conclude as a matter of law
explained that “the prima facie case                 that the evidence submitted by Guo in
standard for a motion to reopen . . .                support of her motion to reopen constitutes
requires the applicant to produce objective          prima facie evidence.8 While we cannot
e v i d e n c e show ing a ‘re asona ble
likelihood’ that he can establish [that he is
entitled to relief].” 7 Id. at 175. The Board,         8
                                                           In Sevoian, we wrote that there are
however, in its denial of Guo’s motion to
reconsider, stated that she must proceed to
                                                              three principal grounds on
end-game and “establish that there is a
                                                              which . . . the Board may
pattern or practice [of enforcing the family
                                                              deny a motion to reopen
planning policy against Chinese nationals
                                                              immigration proceedings.
with foreign-born children] in her
                                                              First, it may hold that the
homeland” (emphasis added). In this
                                                              movant has failed to
context, “establish” means the evidence
                                                              establish a prima facie case
for asylum outweighs the evidence against.
                                                              for the relief sought . . . .
A “reasonable likelihood” means merely
                                                              Second, it may hold that the
showing a realistic chance that the
                                                              movant has failed to
petitioner can at a later time establish that
                                                              i n t ro d u c e p r e v i o u s ly
asylum should be granted. The distinction
                                                              u n a v a i la b l e , mate rial
may at first appear to be subtle shading,
                                                              evidence that justifies
but without it “prima facie” (meaning at
                                                              reopening . . . . Third, in
first sight) would lack meaning. Guo
                                                              cases in which the ultimate
argues that the evidence she submitted,
                                                              grant of relief being sought
even if initially insufficient to establish
                                                              is discretionary (asylum . . .
eligibility for asylum, at least satisfied the
                                                              but not withholding of
prima facie evidence requirement.
                                                              deportation), the Board can
                                                              leap ahead over the two
                                                              threshold concerns (prima
         7
          Prima facie scrutiny entails                        f a c ie c a s e a n d n e w
consideration of “the evidence that                           e v i d e n c e /r e a s o n a b le
accompanies the motion as well as                             explanation) and simply
relevant evidence that may exist in the                       determine that even if they
record of the prior hearing, in light of the                  were met, the movant would
applicable statutory requirements for                         not be entitled to the
relief.” Id. at 173.                                          discretionary grant of relief.

                                                 7
yet say that Guo is entitled to asylum, we                 Second, the applicant must support
are persuaded that she at least deserves a          the objective reasonableness of her fear.
hearing.                                            “Determination of an objectively
                                                    reasonable possibility requires ascertaining
       Thus in the following discussion we
                                                    whether a reasonable person in the alien’s
do not reach the merits of Guo’s claim.
                                                    circumstances would fear persecution if
But we do explain the relevant tests under
                                                    returned to the country in question.”
applicable case law in support of our
                                                    Zubeda, 333 F.3d at 469 (citing Chang v.
conclusion that Guo has shown a realistic
                                                    INS, 119 F.3d 1055, 1065 (3d Cir. 1997)).
chance of success on remand.
                                                    While it is unclear precisely how likely
        Whether fear of persecution is well-        persecution must be to render an
founded turns, as a practical matter, on two        applicant’s fear of future persecution well-
inquiries. First, an applicant must show a          founded, “[o]ne can certainly have a well
subjective fear of persecution. She may             founded fear of an event happening when
satisfy this prong by a showing that her            there is less than a 50% chance of the
fear is genuine to her. Zubeda v. Ashcroft,         occurrence taking place.” INS v. Cardoza-
333 F.3d 463, 469 (3d Cir. 2003). A                 Fonseca, 480 U.S. 421, 431 (1987).
primary means of showing that fear is
                                                           Guo’s principal evidence regarding
genuine is with credible testimony. Guo’s
                                                    China’s enforcement of its one-child
statement that accompanied her motion to
                                                    policy with respect to foreign-born
reopen mentions that she “cannot go back
                                                    children was an affidavit of John Aird, a
to China” because, “[i]f I was sent back to
                                                    former “specialist on demographic
China, I will be forcibly aborted. If I was
                                                    developments and population policy in . . .
sent back after I delivered the second
                                                    China.” The affidavit states that Chinese
child, either my husband or I will be
                                                    couples returning home with unauthorized
sterilized by [the] Chinese government
                                                    children “cannot expect to be exempt”
because we violated [its] family planning
                                                    from the family planning policy because
policy.” This statement reveals that there
is a reasonable likelihood she will give                   to ignore their violations
credible testimony that her fear is genuine.               would tend to undermine the
                                                           enforcement of the rules in
                                                           China.       The Chin ese
                                                           authorities cannot afford to
Id. at 169-170 (citations and quotations
                                                           let rumors get out that
omitted). In this case, the Board gave no
                                                           couples of childbearing age
indication that it was basing its decision on
                                                           can evade the one-child
either the second or third ground for
                                                           limit by leaving the country
denying a motion to reopen. Furthermore,
                                                           illegally,         having
we know of no reason why Guo’s motion
                                                           unauthorized children in
to reopen should be denied on either of
                                                           f or e ign countries and
those grounds.

                                                8
                r e t u rn i n g h o m e                         Aird criticizes the 1998 Profile’s
                without suffering the                    reliance on “anecdotal” evidence. He
                standard penalties.                      points to other sources, such as newspaper
                                                         articles, which indicate that the one-child
Aird thus opines that “the concerns of
                                                         policy is indeed enforced against couples
Chinese couples over what awaits them if
                                                         with unauthorized foreign-born children.
they are repatriated with children born
                                                         He provides two specific examples of the
abroad without official permission are
                                                         application of the policy to Chinese
probably in most cases well-founded.”
                                                         couples returning from abroad.           In
           The affidavit cites seven sources.            addition, he emphasizes the interest of the
Much of Aird’s affidavit is devoted to                   Chinese government in giving our State
discrediting one of them, the State                      De pa r tme nt “ a d ecep tively mil d
Department’s April 1998 Profile of                       impression” of China’s policies. We
Asylum Claims and Country Conditions                     conclude that where a motion to reopen is
for China (“1998 Profile”).                  That        accompanied by substantial support of the
document reports that China’s one-child                  character provided by the Aird affidavit,
fam ily planning policy varies in                        the Government’s introduction of a five-
implementation and that Fujian Province,                 year-old State Department report, without
where Guo lived, is “lax” in its                         more, hardly undermines Guo’s prima
enforcement of the policy (in some cases                 facie showing. Cf. Berishaj v. Ashcroft,
permitting parents to apply after several                378 F.3d 314 (3d Cir. 2004).
years to conceive a second child if their
                                                                Moreover, we agree with Guo that
first child is female). In fact, the 1998
                                                         the 1998 Profile, to the extent it is reliable,
Profile suggests that enforcement of the
                                                         actually may buttress her prima facie case.
policy is applied so “loosely” in Fujian
                                                         The 1998 Profile states that the central
Province—exceptions to the one-child
                                                         Chinese government
policy “are becoming the norm” in rural
areas—that the province has been                                does not authorize physical
criticized in the official press. More                          force to make people submit
importantly, the 1998 Profile discusses the                     to abortion or sterilization,
application of the one-child policy to                          but there are reports that this
couples with foreign-born children and                          continues to occur in some
c o n c l u d e s , b a s e d o n “ a n e c dota l              r u r a l a r e a s a s lo c a l
information,” that “the relevant authorities                    population authorities strive
do not always handle such situations                            to meet population targets.
strictly. At least some couples that have                       Chinese            officials
children in the United States beyond the                        acknowledge privately that
nominal limits and then return to China                         f o r c e d a b o r t io n s a n d
are, at worst, given modest fines.”                             sterilizations still occur in
                                                                areas where family planning

                                                     9
              personnel may be                       subsequent to initial asylum proceedings.
              uneducated and ill-                    See, e.g., In re X-G-W-, 22 I. & N. Dec. 71
              trained.                               (BIA 1998) (reopening proceedings based
                                                     on Congress’s 1996 amendment of the
Moreover, the Board’s analysis failed to
                                                     statutory term “refugee” to include a
account for differences in enforcement
                                                     person persecuted through coercive
based on an immigrant’s legal status in the
                                                     population control measures), superseded
United States. The 1998 Profile references
                                                     on other grounds by In re G-C-L-, 23 I. &
anecdotal evidence to the effect that
                                                     N. Dec. 359 (BIA 2002); In re Lu, No. A
“possession or lack of possession of U.S.
                                                     70 100 687 (BIA March 10, 2000) (Aird
permanent resident status is the key
                                                     affidavit “establishe[s] prima facie
criterion for determining whether couples
                                                     eligibility for relief”); In re Qing Zhang,
are subject to family planning restrictions.”
                                                     No. A 73 148 366 (BIA Nov. 15, 2001)
        It is true, as the Government                (granting motion to reopen based on
contends, that the Aird affidavit does not           statement by the applicant); In re Weng,
demonstrate that any “specific proportion            No. A75 990 618 (BIA July 18, 2003)
or percentage” of couples returning to               (granting motion to reopen under similar
China will be subject to its family-                 circumstances); In re Zhang and Huang,
planning policy, nor does Aird contest that          No. A77 551 826 (BIA July 16, 2003)
variations occur in enforcement. But that            (sustaining petitioner’s appeal of IJ’s
is not Guo’s burden. While some couples              de nia l of asylum under simila r
in Guo’s situation might avoid serious               circumstances).
repercussions upon returning to China, the
                                                            These decisions overwhelmingly
conflicting evidence suggests at least a
                                                     deem allegations like Guo’s sufficient to
reasonable likelihood that Guo will
                                                     establish prima facie eligibility for asylum.
establish a reasonable fear of persecution.
                                                     And while the Government argues that
       What makes the Board’s decision               Guo’s case is distinguishable “given the
particularly suspect in this case is its             paucity of facts alleged in her motion to
failure to comport with its own prior                reopen,” applicants in many prior cases did
decisions, many of which reach the                   not cite more specific evidence than did
opposite conclusions under similar                   Guo. Furthermore, some submitted less
circumstances. “[A]pplication of agency              than Guo. We thus conclude that the
standards in a plainly inconsistent manner           Board erred in finding that Guo presented
across similar situations evinces such a             insufficient evidence to establish her
lack of rationality as to be arbitrary and           prima facie case.
capricious.” Zhao v. U.S. Dep’t of Justice,
                                                                    Conclusion
265 F.3d 83, 95 (2d Cir. 2001).        The
Board on many occasions has granted                        The Board’s cursory rejection of
motions to reopen based on children born             Guo’s motion to reopen was improper. It


                                                10
failed to explain how the IJ’s adverse
credibility finding bears any relation to
Guo’s claim, based on physician-verified
evidence of pregnancy and a third-party
affidavit, that she feared persecution
relating to China’s family planning policy.
Moreover, it seems likely that the Board
applied the wrong standard in evaluating
the motion to reopen. Guo made a prima
facie case: she presented facts showing a
reasonable likelihood that she would
prevail on the merits, particularly in light
of prior Board decisions granting relief
under similar circumstances. We thus
grant Guo’s petition for review and
remand for further proceedings consistent
with this opinion.




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