Submitted: Sept. 25, 2013.
Allan Harvey Bell, argued, Kansas City, MO, for Petitioners.
Jonathan Aaron Robbins, Andrew Oliveira, argued, Washington, DC, Respondent.
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Jian He Zhang and her husband, Rong Lin, are natives of Changle City, Fujian
Province of the People's Republic of China and petition for review of the Board of Immigration Appeals (BIA) order denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture. After careful review, we conclude the Immigration Judge's (IJ) adverse credibility findings, adopted by the BIA, are not supported by substantial evidence in the record. We therefore grant the petition for review and remand the case for further proceedings.
Zhang is a 38-year-old mother of two children. After entering the United States in December of 1998, Zhang submitted an application for asylum, claiming that while in China, government family-planning officials forced her to abort her second pregnancy pursuant to China's one-child policy. She also claimed that if made to return to China, she would endure further persecution. The Immigration and Naturalization Service asylum office denied the application, and the case was referred to Immigration Court. The IJ denied Zhang's asylum application, and the BIA dismissed Zhang's subsequent appeal. Petitioners then sought review in the Second Circuit Court of Appeals, and, in a Stipulation and Order, the Second Circuit remanded the record for the BIA to consider whether the statements on the Notice to Appeal were sufficiently detailed. Although determining that the statements were sufficient, the BIA remanded the case for a new hearing due to the IJ's failure to render an adequate decision as to Zhang's claim that she had a well-founded fear of future persecution. Following the remand, a motion to change venue to the jurisdiction of the Eighth Circuit was filed and granted.
At the new hearing, Zhang testified that after she bore a son in 1991, China's family-planning officials forced her to have an intrauterine device (IUD) implanted to prevent further pregnancy. Zhang eventually had the device removed and discontinued the required IUD check-ups. She testified that she became pregnant in February of 1993 and that her husband, Lin, fled from China on April 3, 1993 for fear that the state would compel his sterilization. On the night of April 15, 1993, government family-planning officials removed Zhang from her home, arrested her for violating the one-child policy, and forced her to undergo an abortion at the Jin Feng Hospital in Fujian Province. Zhang testified that after the procedure, she requested evidence of the forced abortion and a nurse provided her with a photograph of the aborted fetus. Zhang also received an outpatient record requiring her to undergo a second IUD implantation one month after the abortion.
After the second IUD implantation, Zhang decided to join her husband in the United States due to China's prohibition against her giving birth to another child while living in China. Zhang testified that after relocating to the United States, she had the second IUD removed and later gave birth to a daughter.
In support of her asylum application, Zhang submitted the photograph of the aborted fetus, an official Jin Feng Hospital outpatient record confirming Zhang's abortion and the mandatory second IUD implantation, and ...