Metropolitan News-Enterprise


Friday, March 27, 2020


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Ninth Circuit:

Man Who Was Bullied at Asylum Hearing Gets Remand

Majority Finds Unfairness in Conduct of Immigration Judge in Case of Noncitizen Who Claims Chinese Government Took His Parents Into Custody to Force His Wife to Undergo Abortion


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday granted review of a decision of the Board of Immigration Appeals and ordered further proceedings in the case of a man seeking asylum on the ground that the government in China kidnapped his parents to coerce his wife into undergoing an abortion and a sterilization procedure because she had previously given birth.

The immigration judge (“IJ”) disbelieved the account by Mingguo Chen based largely on contradictions in his testimony, and the Board of Immigration Appeals (“BIA”) affirmed. Yesterday’s majority opinion points to bullying of Chen by the IJ and the disadvantage he was under in being forced to testify in a dialect that was not his own.

The opinion declares:

“The record of Chen’s merits hearing indicates that his ability to testify was substantially impeded. Chen possesses a second-grade education and is ‘very illiterate.’…He speaks, but cannot write, in a dialect known as Fuqing. And even though he can only ‘barely understand’ Mandarin, the hearing was conducted through a Mandarin interpreter. It is apparent from the transcript that the interpreter made numerous translation errors that seriously confused Chen’s testimony….These difficulties were amplified by the IJ’s open hostility to Chen; she interrupted and intimidated him throughout, repeatedly accusing him of lying but mischaracterizing his testimony.”

Comprising the majority were Judges Marsha S. Berzon and Kenneth K. Lee. Judge Ryan D. Nelson dissented, arguing that the IJ’s adverse credibility determinations should be credited because Chen did contradict himself.

Oral Argument

Oral argument took place in Pasadena on Feb. 13. Berzon signaled that that he believed Chen had been unfairly treated at the hearing before the IJ; Nelson told Aaron Nelson, a trial attorney for the U.S. Department of Justice, that he sided with him; and Lee was mum.

Berzon commented that Chen was “being bullied by the IJ to remember,” accounting for his confusion and contradictions.

Chen’s lawyer, Albert Chow of Monterey Park, said that Chen, when asked in what year he made arrangements to come to the United States, immediately responded that it was 2006—and it was only when he was pressed by the IJ as to the month that he expressed uncertainty.

Berzon remarked:

“If you asked me when I made arrangements to do something 12 years ago, there’s no way I could answer that.”

Questioning Government Lawyer

When Aaron Nelson was asked by Berzon how Chen could be expected to remember the precise month he made plans to come here, the lawyer answered:

“If I were living in a regime that forcibly aborted my unborn child and I was asked, ‘When did you decide to leave that awful regime?’ I would say, ‘the say that that happened I knew that I was getting out of there.’ ”

Berzon suggested: “Well, maybe it wasn’t the day that it happened.”

Aaron Nelson said the abortion purportedly occurred in August of 1999 while Chen was working outside the village. He questioned the reliability of Chen’s account, noting that his wife was supposedly “in hiding,” although she was “in plain view of the factory” where she worked, and while his parents were allegedly “kidnapped,” there is nothing in reports on China indicating that “it is normal procedure for the Chinese government to kidnap.”

China then had a one-child policy instituted in 1979. Since 2015, some couples are allowed to have two children.

Judge Seeks Example

Rodney Nelson asked for an example of a contradiction that indicates lack of credibility. The lawyer recounted that Chen claimed at one point that he rushed to the village when he heard that an abortion was imminent but arrived too late to stop it, and said at another juncture that he learned of the abortion after he returned to the village.

He said that in 31 instances, Chen proclaimed an inability to recall.

Berzon challenged the significance of that, saying:

“I can remember things exceedingly clearly that happened, but I couldn’t tell you within five years of when they happened.”

The questioned the reasonableness of the IJ’s “insistence” on precision as to when events occurred, charging:

“The judge obviously decided at the outset that he wasn’t going to believe anything [Chen] said.”

Majority’s Opinion

Yesterday’s opinion observes:

“The IJ’s insistence that Chen remember the exact month, ten years before his hearing, when he began making his travel arrangements suggests a ‘predisposition to discredit’ Chen’s testimony, particularly in light of the IJ’s ‘impatience and hostility toward [Chen], bullying and haranguing him from the inception of the hearing to its conclusion.’ ”

Nelson said in his dissent that “[s]ubstantial evidence supports the agency’s adverse credibility determination here,” pinpointing an inconsistency as to whether he had discussed the abortion with his wife prior to her turning herself in and acceding to it.

The case is Chen v. Barr, No. 17-71603.


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