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CA7 (Posner) on Asylum, China, Forced Sterilization: Chen v. Holder

May 09, 2013 (2 min read)

"We complained in Zheng v. Holder, 666 F.3d 1064, 1068 (7th Cir. 2012), about the Board’s insouciant attitude toward evidence of forced sterilization in Fujian, an attitude illustrated by the Board’s opinion in this case. ... The Justice Department’s brief in this court is even more egregiously selective in its quotations from the May 2007 report, illustrating the frequently obstinate manner in which the Department defends the Board’s rulings in asylum cases, see, e.g., Smykiene v. Holder, 707 F.3d 785, 790 (7th Cir. 2013); Lam v. Holder, 698 F.3d 529, 534-36 (7th Cir. 2012); Pasha v. Gonzales, 433 F.3d 530, 537 (7th Cir. 2005), as by repeatedly flouting the Chenery doctrine; see the following cases cited in Smykiene: Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir. 2011); Atunnise v. Mukasey, 523 F.3d 830, 838 (7th Cir. 2008); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir. 2004); Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir. 2010). ... The Board has a pinched conception of “authentication.” ... As far as we can tell, the Board ignored the Robert Lin document—and that’s a problem. “We cannot sustain the exclusion of . . . documents without an explanation of the basis for the ruling.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005). The Robert Lin document cuts the ground out from under what the Board called the “key aspect of this case”—that because Chen’s children were born abroad, she is in no danger of being forced to undergo sterilization. ... We find no indication, either in this case or in previous ones involving asylum applications based on fear of coercive enforcement of the one-child policy (most recently Ni v. Holder, supra), that the Board has attempted to marshal the considerable literature (academic, journalistic, diplomatic, judicial) on the nature and enforcement of the policy—that it has tried in other words to construct an empirical basis, however unavoidably crude rather than precise, for its skeptical attitude toward these applicants. What surely did not meet the Board’s responsibility for the reasoned administration of asylum law in the present case was its brushing aside—with a cropped reference to the State Department report of May 2007—the question whether the petitioner faces a substantial risk (however difficult to quantify) of compulsory sterilization if she is removed to China. The combination of the Board’s inaccurate representation of the report on which it so heavily relied, disregard of other evidence, and erratic treatment of the documents submitted by the petitioner deprives the Board’s order denying asylum of a rational foundation. See also Ni v. Holder, supra. The order is therefore vacated and the case remanded." - Chen v. Holder, May 9, 2013.  [Hats way off to Joshua Bardavid and Ted Cox!]