Judges: PerCuriam
Filed: Apr. 01, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-2411 TIE XIA CHEN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals. No. A200 025 604 _ ARGUED MARCH 3, 2015 — DECIDED APRIL 1, 2015 _ Before POSNER, KANNE, and TINDER, Circuit Judges. PER CURIAM. Tie Xia Chen, a Chinese citizen, seeks relief from removal on the ground that he will be persecuted for violating his countr
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-2411 TIE XIA CHEN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals. No. A200 025 604 _ ARGUED MARCH 3, 2015 — DECIDED APRIL 1, 2015 _ Before POSNER, KANNE, and TINDER, Circuit Judges. PER CURIAM. Tie Xia Chen, a Chinese citizen, seeks relief from removal on the ground that he will be persecuted for violating his country..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2411
TIE XIA CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A200 025 604
____________________
ARGUED MARCH 3, 2015 — DECIDED APRIL 1, 2015
____________________
Before POSNER, KANNE, and TINDER, Circuit Judges.
PER CURIAM. Tie Xia Chen, a Chinese citizen, seeks relief
from removal on the ground that he will be persecuted for
violating his country’s one‐child policy. He petitions for re‐
view of the Board’s denial of his motion to reopen. In that
motion, Chen argued that his attorneys had mishandled his
case by neglecting to offer available evidence that would
have resolved deficiencies in his asylum application identi‐
2 No. 14‐2411
fied by an immigration judge. Because the Board largely ig‐
nored this potentially meritorious argument, its ruling is
procedurally defective, so we grant the petition and remand
for further proceedings.
Chen entered the country in 2005. The Department of
Homeland Security now seeks to remove him on the ground
that he is “an alien present in the United States without be‐
ing admitted or paroled.” See 8 U.S.C. § 1182(a)(6)(A)(i).
Conceding removability, Chen has applied for asylum,
withholding of removal, and relief under the Convention
Against Torture. He contends that Chinese authorities will
persecute him for refusing, by having two children, to follow
the one‐child policy.
At his removal hearing Chen testified about his claim of
persecution. He explained that he fled China after he was
arrested and beaten in his home province of Fujian when of‐
ficials found out that his wife was pregnant with their sec‐
ond child. Police detained, interrogated, and beat him for six
months in 2004 and early 2005 as they tried to find the
whereabouts of his wife. The police released him after his
parents paid 3,000 yuan (about 480 dollars), on the condi‐
tion—as reflected in written notices—that his wife undergo
forced sterilization or they pay a fine of 20,000 yuan (approx‐
imately 3,200 dollars) to register the son. He testified that his
wife has refused to be sterilized. (His written application for
relief from removal, in one translation from Mandarin, im‐
plied that his wife has already been sterilized.) Chen fled the
country without paying any fine, and his wife and daughter
now hide from authorities at a relative’s house; their son
lives with Chen’s parents. Chen explained that he could not
hide in China and still find work. (When a border agent de‐
No. 14‐2411 3
tained him temporarily in Texas, Chen similarly told the
agent that he had come to this country to seek work.) Chen’s
brother’s adoptive father, Patrick Meredith, also testified at
the hearing. He said that he met Chen’s two children when
visiting China in 2005.
During the removal proceedings, the case boiled down to
whether Chen in fact has two children. His first attorney,
Marian Ming, requested from Chen and submitted to the IJ
documents to corroborate Chen’s claim that he has two chil‐
dren. These included photographs of Chen’s children, notic‐
es from the birth control office threatening sterilization or a
fine, and birth certificates for Chen (translated into Spanish),
his wife, and his son and daughter. The Forensic Document
Laboratory of the Department of Homeland Security deter‐
mined that the son’s birth certificate was counterfeit. Ac‐
cording to Chen, Ming did not tell him that the lab deemed
the birth certificate a counterfeit and instead just told him
that it was “useless.” Because, Chen explained, Ming told
him that he needed another birth certificate and Chen want‐
ed to comply with his attorney’s request, he asked his father
to get a new one, which the Forensic Document Laboratory
determined was also counterfeit. Although Chen knew that
because his son was not registered a genuine birth certificate
is generally not available, he believed that his son’s docu‐
ments were authentic because his father got them from a
government office. Chen later replaced Ming with attorney
Yongbing Zhang, who represented him when he testified at
his removal hearing. Zhang submitted additional evidence
to corroborate Chen’s claim that he had two children in vio‐
lation of the one‐child policy, including letters from Chen’s
parents and wife that refer to both children, and a message
from his daughter.
4 No. 14‐2411
Focusing initially on Chen’s testimony, the IJ denied re‐
lief. She explained that testimony alone, if found credible,
can satisfy an applicant’s burden, but that, because of several
“major” inconsistencies, Chen’s “testimony [was] insuffi‐
ciently persuasive to meet his burden of proof.” The “most
significant inconsistency” was that Chen’s translated asylum
application asserted that his wife already had been sterilized
while he testified she would be sterilized if caught. The IJ
also noted that (1) Chen could not explain why his birth cer‐
tificate was translated into Spanish; (2) Chen’s testimony
about meeting Patrick Meredith changed (he supposedly
said that he first met him in China, but later placed the first
meeting in the United States; Chen also supposedly varied
his account of whether he and Meredith met while Chen was
detained in Texas); and (3) Chen suggested that he came to
this country for work, not to avoid persecution, because he
told the IJ and a border agent that he cannot find work in
China.
Because Chen’s testimony alone was insufficient, the IJ
examined whether he had corroborated his claim and found
that he had not. The IJ determined that his son’s birth certifi‐
cates were not corroborative because they were fraudulent,
and Chen knew or suspected the fraud because he testified
that he knew that because his son was not registered, he
could not get a valid birth certificate. The IJ added that, even
if Chen did not suspect the fraud, he needed other corrobo‐
ration. But the IJ discounted Chen’s other corroboration as
inconsistent with some evidence or otherwise defective. The
letter from his parents that referred to Chen’s two children
contradicted a part of Chen’s testimony by saying that they,
not Chen, came up with the idea to get the birth certificates.
His daughter’s letter implied that she is now eleven years
No. 14‐2411 5
old, but her birth certificate suggested that she was only
nine. And the Chinese government’s notices threatening
sterilization or a fine were not authenticated. Chen unsuc‐
cessfully appealed the IJ’s decision to the Board.
Chen then retained new counsel and moved the Board to
reopen based on Ming and Zhang’s ineffective assistance. In
a detailed brief, Chen methodically argued that each incon‐
sistency or deficiency identified by the IJ could be attributed
to his counsel’s incompetence. Among other failings, Chen
maintained that they neglected to submit evidence or argu‐
ment that (1) the discrepancy between his written asylum
application and his testimony about his wife’s sterilization
was based on a mistranslation, which Ming has now
acknowledged; (2) his birth certificate was translated into
Spanish because he had once sought a visa to travel to Spain;
(3) the IJ mischaracterized his testimony about when he met
Meredith; (4) the border agent’s report about Chen’s reasons
for coming to this country was unreliable; (5) the ostensible
discrepancy in his daughter’s age arose from a traditional
Chinese method of age counting; and (6) the IJ improperly
required that the sterilization notices be authenticated. Chen
also argued that Ming’s negligence misled him into submit‐
ting the fraudulent birth certificates because she never ex‐
plained to him that the government was questioning the au‐
thenticity of his son’s birth certificate but simply told him he
needed to submit another one.
The Board denied Chen’s motion to reopen. It assumed
that the attorneys’ performance was substandard and found
that Chen complied with the requirements of Matter of Loza‐
da, 19 I. & N. Dec. 637, 639 (BIA 1988). But, focusing exclu‐
sively on the birth certificates, it ruled that Chen failed to
6 No. 14‐2411
show prejudice. The Board observed that, even though the IJ
“did not make an adverse credibility finding,” the IJ re‐
quired Chen to corroborate his claim, but Chen knew or
suspected that the birth‐certificate corroboration was
fraudulent. Without that required corroboration, the Board
concluded, his claim was doomed, so his attorneys did not
prejudice him: “Given that the respondent submitted fraud‐
ulent documents that were intended to corroborate a matter
at the heart of the respondent’s asylum claim, we conclude
that the respondent’s applications for asylum and related
relief would have been denied notwithstanding any other
issues raised in the motion to reopen.”
On appeal the parties offer two possible interpretations
of the Board’s ruling, but both necessitate a remand. Accord‐
ing to Chen, the Board ruled that because he knew that his
son’s birth certificates were fraudulent, his claim necessarily
fails regardless of his attorneys’ representation. If that is the
correct reading of the Board’s decision, then its reasoning is
erroneous. A finding that an applicant knowingly offered
fraudulent evidence allows an IJ to find an applicant not
credible, but it does not require an adverse credibility ruling
or compel the IJ to deny the claim solely based on the fraud‐
ulent submission. See Hanaj v. Gonzales, 446 F.3d 694, 698–700
(7th Cir. 2006); Kourski v. Ashcroft, 355 F.3d 1038, 1039–40
(7th Cir. 2004) (“Of course, even if he forged it himself, this
would not prove that he was not Jewish, as it is not un‐
known for persons who have valid claims but no evidence to
support it to forge some evidence.”). And here the Board
acknowledges that, even though the IJ found that Chen
knew or suspected the fraud, she made no adverse credibil‐
ity finding. Therefore, on Chenʹs interpretation of the
Boardʹs ruling, a remand is needed for a corrected inquiry
No. 14‐2411 7
into prejudice. Without treating the fraud as automatically
barring relief, the Board must decide whether Chen was
bound to lose his case even with competent counsel.
The government counters that the Board has already so
ruled. According to the government, the Board ruled that
because Chen knowingly submitted false birth certificates,
he did not corroborate the heart of his claim, and therefore,
lacking this essential corroboration, Chen would have lost
even with competent counsel. But if the Board ruled that
Chen must lose because he lacks corroboration, its ruling is
procedurally flawed because it ignores Chen’s main argu‐
ment in his motion to reopen: the IJ required corroboration
only because his attorneys ineptly caused the IJ to find
Chen’s testimony inconsistent. If his attorneys had properly
presented his testimony, Chen explains, any inconsistencies
might have vanished, and the IJ might have found his testi‐
mony, standing alone, sufficient to carry his burden without
the need for corroboration. See 8 U.S.C. § 1158(b)(1)(B)(ii);
cf. Fadiga v. Att’y Gen. U.S., 488 F.3d 142, 162–63 (3d Cir.
2007) (finding that counsel prejudiced petitioner when the
IJ’s doubts about petitioner’s credibility were based on in‐
consistencies attributable to ineffective counsel, who also
failed to provide available corroborating evidence).
The Board never evaluated Chen’s argument that, but for
his attorneys’ failure to resolve the inconsistencies cited by
the IJ, she would not have required corroboration or would
have found the corroboration (beyond the birth certificates)
sufficient. For example, “the most significant inconsistency,”
according to the IJ, was that Chen asserted in his written ap‐
plication for asylum that his wife had been sterilized but tes‐
tified that she was only threatened with sterilization. But in
8 No. 14‐2411
his motion Chen offered evidence that Ming had the applica‐
tion mistranslated and that attorney Zhang, who spoke
Mandarin, carelessly left it mistranslated. Chen’s motion al‐
so goes through every other supposed inconsistency or defi‐
ciency—the Spanish translation of his birth certificate, meet‐
ing Meredith, his daughter’s age, his reasons for coming to
the United States, and document authentication—and offers
the resolution that his attorneys neglected to furnish. The
Board addresses none of this evidence or its possible effect
on the IJ’s decision.
Moreover, even if the IJ would have wanted corrobora‐
tion beyond his testimony, a birth certificate was not the on‐
ly evidence that would have sufficed. (In fact, because Chen
claimed that he was persecuted for violating the one‐child
policy, he necessarily could not obtain a valid birth certifi‐
cate for his son because birth certificates are not issued for
unregistered children. Yet his attorney misadvised him to
get one.) As Chen notes, he submitted corroboration other
than the birth certificates. Meredith testified that he had seen
both of Chen’s children in China, the letters from Chen’s
parents and Chen’s wife both discussed that Chen’s son was
living with Chen’s parents, and photos showed Chen’s wife
with their son. A competent attorney, Chen argued in his
motion to reopen, could have overcome the IJ’s reasons for
discounting this further evidence or explained why addi‐
tional corroborating evidence could not be reasonably at‐
tained. The Board, however, addressed none these conten‐
tions either.
Where, as here, the Board ignores a potentially meritori‐
ous argument when deciding a motion to reopen, it abuses
its discretion. See Moosa v. Holder, 644 F.3d 380, 384, 386
No. 14‐2411 9
(7th Cir. 2011); Kebe v. Gonzales, 473 F.3d 855, 857–58 (7th Cir.
2007) (citing cases that were remanded because “the BIAʹs or
the IJʹs failure to discuss potentially meritorious arguments
or evidence calls into question whether it adequately consid‐
ered these arguments”). This principal applies to motions to
reopen based on claims of ineffective assistance. See Filja v.
Gonzales, 447 F.3d 241, 256 (3d Cir. 2006) (remanding when
Board’s prejudice holding on ineffective assistance of coun‐
sel claim suggested Board did not sufficiently review record
or applicant’s arguments); Mohammed v. Gonzales, 400 F.3d
785, 792–93 (9th Cir. 2005) (finding Board abused its discre‐
tion when it denied motion to reopen for ineffective assis‐
tance in an “incomplete opinion” that did not consider all
submitted evidence that showed petitioner was prejudiced
by counsel’s performance).
Thus, the petition for review is granted. The Board
should determine if Chen’s attorneys incompetently neglect‐
ed to offer evidence and arguments that might have resolved
the inconsistencies identified by the IJ. If so (or if the Board
assumes so), it should decide whether the IJ would have
ruled against Chen anyway.