PETITIONER'S BRIEF IN SUPPORT OF HER PETITION FOR REVIEW

STATEMENT OF JURISDICTION

This Court has appellate jurisdiction under § 242(b) of the Immigration and

Naturalization Act, 8 U.S.C.§ 1252(b) (2004), to review the petitioner’s challenge

to the BIA’s December 19, 2005, final order denying her asylum, withholding of

removal, and relief under the Convention Against Torture.

ISSUES PRESENTED FOR REVIEW

1. Whether the Immigration Judge (“IJ”) violated the petitioner’s due process

rights to a full and fair hearing where the IJ failed to make a credibility

determination?

2. Was it error for the BIA to affirm the IJ’s failure to recognize that forced marriage to a government official amounts to a form of persecution?

3. Whether Ms. Li has established that her membership in a particular social group

of unmarried Chinese women opposing forced marriage in China and with a

political opinion against forced marriage may claim persecution or a well founded

fear of persecution given the retaliation suffered for said opinion?

4. Whether Ms. Li had a well-founded fear of persecution despite the continued

residence of Ms. Li’s family in China?

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5. Whether Ms. Li sustained her burden of proof despite the absence of

corroborating evidence?

6. Whether is was error for the BIA to affirm the IJ’s decision that Ms. Li could

have avoided persecution by relocating to another part of China?

7. Whether the IJ gave the Petitioner’s claims under the Convention Against

Torture (“CAT”) a complete analysis?

STATEMENT OF THE CASE

Ms. Li’s asylum and removal proceeding hearing was heard on August 11,

2003. Ms. Li is from Fujian, China. She speaks Mandarin. On December 19,

2005 the BIA summarily affirmed the IJ’s decision and adopted it as the “final

agency determination” under 8 C.F.R. § 3.1(e)(4) (2002). A Motion to Reconsider

was filed with the Board on January 12, 2006. A Motion to Reopen was filed on

February 10, 2006. A Petition for Review was filed on or about January 9, 2006

before the Fourth Circuit Court of Appeals.

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STATEMENT OF FACTS

Ms. Li, the petitioner, is a native and citizen of the Peoples Republic of

China (PRC). The Immigration Judge (“IJ”) hearing of her claims for relief

occurred on August 11, 2003. The court found Ms. Li to be removable, denied her

claims for asylum, and ordered her to be removed to China. Joint Appendix

(hereinafter J.A).-30, 42. Ms. Li sought administrative review of the denial of her

claims by the BIA. The BIA affirmed the decision of the IJ and dismissed Ms. Li’s

appeal by a final administrative order of removal dated December 19, 2005. J.A.-

46. The IJ found, inter alia, that Ms. Li had not shown that any alleged harm to her

that was, or will be, inflicted on account of an actual protected ground or an

imputed protected ground; that Ms. Li had not carried her evidentiary burden of

proof and persuasion on the issue of persecution, and failed to satisfactorily explain

the absence of corroborating evidence for her claim. J.A -38 The IJ found that not

meeting the low burden for asylum, Ms. Li had not met the more stringent burden

for withholding, and that Ms. Li had not shown that she more likely than not faces

torture if removed to China. J.A.- 40.

Ms. Li lives in Maryland. She was born December 20, 1977 in Fujian

Province. She left China and came to the United States at the age of 24, entering

the United States in the summer of 2001. Ms. Li married an American on June 3,

2002. The IJ stated that even though Ms. Li was married to a U.S. citizen she had

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to pursue the asylum claim or accept an order of removal and apply for a waiver

due to Ms. Li’s status as an arriving alien. J.A.- 4

Ms. Li testified before the IJ that the village chief wanted to marry her and

had the ability to force a marriage. When Ms. Li rejected his marriage proposal he

planned to arrest her on the pretext of her mother’s membership in Falun Gong.

J.A.- 10. She testified that because she had refused him he destroyed her family’s

belongings, arrested her mother, and exercised other retaliation. J.A.- 12-13. The

only way for Ms. Li to escape the consequences of refusing the marriage was to

leave China. Since for her to marry she would need the village chief’s permission

as he issued the marriage certificate, and he would refuse it on pretext. J.A.- 14-

15. Ms. Li was not able to move to another place in China to survive as she had no

relatives anywhere else. J.A.- 14. She had a cousin in Brooklyn in the United

States. J.A.- 16. On account of the family’s refusal of the marriage proposal

furniture was destroyed on or about January 20, 2001 and the mother was arrested.

J.A. -23-24. Durochek, the village head, personally arrested the mother for Falun

Gong practice and with three or four associates destroyed Ms. Li’s family’s

furniture. J.A. -24. After the mother’s release the mother was told she had to

report to the office once a week. J.A. -25.

The IJ Decision

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The Immigration Judge asked Ms. Li if she had ever asked her parents or

siblings for a letter to the court to tell what happened to her. J.A. - 26. Ms. Li

stated that she did not ask for such letters because she did not know that she should

do this. J.A.- 26-27. The Immigration Judge ruled that Ms. Li “submitted

absolutely no proof to this court that the village head proposed marriage, that your

mother practiced Falun Gong, that you were accused of practicing Falun Gong,

that your mother was arrested, that you went into hiding, or that your mother has to

report to the authorities every week. I have absolutely no documentation-nothing.

And if these things happened to you these is some proof out there that you could

have submitted to the court. So I have, therefore, had to deny your application for

political asylum.” J.A. -29-30. The IJ found that Ms. Li “failed to meet her burden

in establishing past persecution or that she currently has a well-founded fear of

future persecution should she return to China.” J.A.- 38. The IJ also found “ With

reference to future persecution, this court notes that there’s a singular lack of

corroborating documentation and evidence in this case. This court notes the

respondent’s mother, father, and three siblings continue to reside in the People’s

Republic of China, apparently without having been harmed.” J.A. 39- 40. She then

denied the respondent’s application for asylum, application for withholding of

removal, and claim for relief under the Torture Convention. J.A.-41. On December

19, 2005 the BIA affirmed the IJ’s decision. J.A.- 46.

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SUMMARY OF THE ARGUMENT

Ms. Li has established that she was persecuted on account of a statutorily

protected ground. A local government official wanted to force marriage upon her.

The IJ’s decision and the BIA’s affirmance of the decision to deny asylum and

withholding warrant reversal by this Court because these determinations contain

multiple legal and factual errors, and are contrary to record evidence.

ARGUMENT

I. STANDARD OF REVIEW

The remedy when the Board of Immigration improperly affirms a case is

judicial review of the immigration judge’s decision. Blanco de Belbruno v.

Ashcroft, 362 F.3d 272, 281 (4th Cir. 2004). "This court will reverse the denial of

an asylum application only if the evidence ‘was so compelling that no reasonable

fact finder could fail to find the requisite fear of persecution.’ " Blanco de

Belbruno, 362 F.3d at 284 (quoting Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir.

2002)). We ask the Court to reviewed the record and conclude that Ms. Li has met

this standard. Ms. Li is also eligible for withholding of removal. “To qualify for

withholding of removal, a petitioner must show that he faces a clear probability of

persecution because of his race, religion, nationality, membership in a particular

social group, or political opinion.” Rusu v. INS, 296 F.3d 316, 324 n.13 (4th

Cir.2002) (citing INS v. Stevic, 467 U.S. 407, 430 (1984). The administrative

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findings of fact made by the Immigration Judge or the Board of Immigration

Appeals are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary. Section 242(b)(4)(B) of the INA, 8 U.S.C. §1252(b)(4)

(B); and the Attorney General's discretionary judgment to grant asylum relief under

section 208(a) of the INA shall be conclusive unless manifestly contrary to the law.

Section 242(b)(4)(D) of the INA, 8 U.S.C. §1252(b)(4)(D). A Motion to

Reconsider in this case has been filed that challenges 8 CFR § 245.1(c)(8). See

Mary A. Kenney, American Immigration Law Foundation, Adjustment Of Status

For “Arriving Aliens” In. Removal Proceedings: Strategy Decisions To Challenge

8 CFR § 245.1(c)(8,) Practice Advisory, available at

http://www.ailf.org/lac/lac_pa_101805.pdf.(last visited February 10, 2006). A

Motion to Reopen based on ineffective assistance of counsel has also been filed

which provides the corroborative evidence that counsel had neglected to advise

Petitioner to obtain.

“The determination of whether an alien has established a well-

founded fear of persecution in order to be eligible for a grant of asylum is reviewed

under the substantial evidence test.” Abankwah v. INS, 185 F.3d 18, 22-23 (2d

Cir. 1999); Secaida-Rosales v. INS, 2003 WL 21257949, at 6. In applying the

substantial evidence test, the Court must assess whether the determination is

"supported by reasonable, substantial, and probative evidence on the record

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considered as a whole," and in order to reverse the BIA's factual determinations,

the Court must find that the evidence compels the conclusion that the BIA was

wrong. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). When review involves

mixed questions of law and fact, the standard of review is “far less deferential.”

Secaida-Rosales, 2003 WL 21257949, at 6 (quoting Qui, 329 F.3d 140, 2003 WL

1878901 at *7). Where, as here, the BIA issues an affirmance, the decision of the

IJ, and not the BIA summary affirmance, is the proper subject of judicial review

for substantial evidence. See Secaida-Rosales, 2003 WL 21257949, at 6; Soadjede

v. Ashcroft, No. 02-60314, 2003 WL 1093979, *1 (5th Cir. Mar. 28, 2003) (“the

summary affirmance procedures provided for in 8 C.F.R. § 3.1(a)(7) do not deprive

this court of a basis for judicial review”); Albathani v. INS, 318 F.3d 365, 376-78

(1st Cir. 2003) (same); Ciorba v. Ashcroft, 323 F.3d 539, 544 (7th Cir. 2003). The

IJ failed to recognize forced marriage, or the punishment received if opposition to

the marriage is expressed, as persecution. As a consequence, the IJ improperly

determined that Ms. Li did not establish past persecution or a well-founded fear of

future persecution. The IJ’s determination was both legally and factually incorrect,

however, and it must be reviewed de novo. Secaida-Rosales, 2003 WL 21257949,

at *6.

II. The I.J.’S Failure To Make Credibility Determination Requires Remand

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The IJ here made no credibility findings. She only noted the absence of

corroborative evidence. In the absence of an adverse credibility finding, Ms. Li’s

testimony must be accepted as true. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th

Cir. 2004) (“[t]estimony must be accepted as true in the absence of an explicit

adverse credibility finding.”).

Because the BIA summarily affirmed the Immigration Judge's (IJ) decision,

a court reviews the IJ's decision as if it were the decision of the BIA. Wiransane

v. Ashcroft, 366 F.3d 889, 897 (10th Cir. 2004). In immigration proceedings, it is

the province of the BIA and the IJ to make factual findings, including credibility

determinations. Consequently, a court does not disturb an IJ's factual findings, so

long as "they are substantially reasonable and supported by specific, cogent

reasons." Sviridov v. Ashcroft, 358 F.3d 722, 729 (10th Cir. 2004). Applying

these principles, a court cannot perform a meaningful review where the Board does

not sufficiently articulate its reasoning. Mickeviciute v. INS, 327 F.3d 1159, 1162

(10th Cir. 2003). Courts have stated that "[w]here doubts have been raised as to

the credibility of the applicant by either the Immigration Judge or the BIA, but the

BIA makes no finding with regard to credibility, courts have held that the proper

procedure is to remand to the BIA for a credibility determination." Krastev v.

INS, 292 F.3d 1268, 1279 (10th Cir. 2002). See also Diallo v. Ashcroft, 381 F.3d

687, 699 (7th Cir. 2004).

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III. The Immigration Judge’s Decision that Forced Marriage Does Not Constitute a Form of Persecution was Clear Error

The IJ’s decision and the BIA’s affirmance of the decision to deny

asylum and withholding warrant remand or reversal because these determinations

are replete with legal and factual errors. First, the IJ incorrectly determined that

Ms. Li did not establish a well-founded fear of persecution. This erroneous finding

stems from the IJ’s failure to recognize, as a threshold matter, that forced marriage

is a form of persecution, as is the retribution incurred by women who oppose

forced marriage. Second, the IJ failed to recognize that Ms. Li’s social group,

consisting of young, unmarried Chinese women whom are subject to and oppose

forced marriage, has been recognized within the meaning of the relevant statutes.

The IJ here failed to recognize this identifiable group by failing to follow the

factors employed by the BIA in determining whether a particular social group

exists. See Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985). Third, the IJ and

BIA’s decisions failed to consider the threat faced by Ms. Li on account of her

political opinion -- her adamant opposition to forced marriage -- as made clear to

the local as well as Ms. Li’s decision to flee her homeland in order to avoid a

forced marriage. On this basis, reversal of the IJ and BIA’s decisions is further

warranted. Fourth, the IJ’s implied assumption that Ms. Li could relocate to

another area of China to avoid a forced marriage is clear error, as it ignores

China’s country conditions. Moreover, the IJ disregarded the fact that the village

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chief is a political actor and therefore, a rebuttable presumption exists that it is

unreasonable for Ms. Li to relocate.

A. Forced Marriage is Persecution.

The United States has long-recognized that the right to marry is a

fundamental right. See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v.

Virginia, 388 U.S. 1 (1967). Conversely, the inability to choose one’s spouse and

to avoid a marriage without one’s consent is a violation of this fundamental right.

Without question, forced marriage constitutes persecution.

Forced marriage violates a person’s fundamental right to marry of her own

free will, and subjects one to a lifetime of virtual domestic and sexual enslavement,

in bondage to a person with whom she does not wish to be, violating her basic civil

and human rights, including the right to health, life, dignity and personal integrity.

Harms of this nature have been recognized as persecution under both domestic and

international law. Therefore, the IJ made a legal error in holding that Ms. Li did

not face persecution. The Immigration and Naturalization Service (INS),1 in its

1995 gender guidelines, recognizes forced marriage as a gender-specific form of

harm. See Phyllis Coven, U.S. Dep’t of Justice, Considerations for Asylum

Officers Adjudicating Asylum Claims from Women, 9 (1995) (hereinafter

1 Since March 1, 2003, the functions of the INS have been transferred to the Department of Homeland Security under U.S. Citizenship and Immigration Services.

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“Guidelines”). At least two IJs have granted asylum to women fleeing forced

marriages. In Matter of [name redacted], A #76-512-001 (Chicago, Il., Imm.Ct.,

Oct. 18, 2000), an IJ granted asylum to a sixteen-year old Chinese girl who faced a

forcible marriage according to feudal practices. In Matter of O-O- A# redacted

(Atlanta, GA, IMM. Ct., July 3, 2002), an IJ granted asylum to a young woman

who faced a forcible polygamous marriage.

The Guidelines specifically cite to the Convention on the Elimination of All

Forms of Discrimination Against Women (“CEDAW”) Dec. 18, 1979, art. 16(1)

(b), 1249 U.N. T.S. 13 (1979) (requiring state parties to “ensure on a basis of

equality of men and women…the same right freely to choose a spouse and to enter

into marriage only with their full and free consent). Guidelines at 2.

B. Ms. Li’s Well-Founded Fear of Being Forced to Marry Was Both Subjectively and Objectively Reasonable.

To establish that a fear of future persecution is well-founded, an

applicant must show that her fear is both subjectively genuine and objectively

reasonable. See Melendez, 926 F.2d 211 at 215 (2d Cir. 1991). The subjective

component may be satisfied by the applicant’s credible testimony that she fears

persecution based upon her reaction to events that impinge on her personally. Id.

The objective component requires other proof or facts to show that the applicant’s

fear is grounded in reality Abankwah, 185 F.3d at 22. See also Liao v. United

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States Dept. of Justice, 293 F.3d 61, 67 (2d Cir. 2002)(quoting INS v. Cardoza-

Fonseca, 480 U.S. 421, 450 (1987)).

1. Ms. Li Demonstrated A Well-Founded Fear Of Persecution Ms. Li satisfied both the subjective and objective components required to

demonstrate a well-founded fear of future persecution. With respect to the

subjective prong, Ms. Li testified before the IJ how she and her family were

retaliated against and that she would have been retaliated against further for failing

to marry the village chief if she were to be returned to China and that she will face

fines, incarceration, and retaliation for having been smuggled out of China to

escape the forced marriage. Ms. Li further testified as to her fear of the influential

village chief and his propensity for violence, threats and coercion. J.A.–12, 23-25.

Moreover, Ms. Li described the retribution her family has faced as a result of Ms.

Li’s disregard for the village chief in refusing to marry him and in fleeing China.

These incidents establish a pattern of violence and threats against her family,

which courts have found to constitute persecution. Singh v. INS, 94 F.3d 1353,

1358 (9th Cir. 1996) (persecution may be established by “cumulative, specific

instances of violence and harassment toward an individual and her family

members”). In light of the fact that the village chief carried out these persecutory

acts against her family for her resistance, there can be little doubt that, upon her

return, he will retaliate against her further.

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2. In Determining Whether Ms. Li’s Fear Was Well-Founded, The IJ Erred In Failing To Perceive Forced Marriage And The Retribution Suffered In Opposition To The Practice As Persecution

The reasonableness of Ms. Li’s fear is further established by evidence that

the government is unable or unwilling to protect women as a result of feudal

attitudes toward them in Chinese society. Because these material errors were

fundamental to the IJ’s determination that a well-founded fear of persecution are

not established, reversal of the decision is necessary. See Chen v. INS, 359 F.3d

121, 128-29 (2d. Cir. 2004). Any reasonable person in the same circumstances

would be fearful that this harm would befall them if returned to China.

IV. Ms. Li Is A Member Of A Particular Social Group Comprised of Young, Unmarried Chinese Woman who are Subject to and Adamantly Oppose the Practice of Forced Marriage

Ms. Li faces certain persecution should she return to China on account of her

membership of a social group consisting of young, unmarried Chinese women

whom are subject to and in opposition of forced marriage, has been previously

recognized as a particular social group. Gao infra; Matter of “Jane Doe”, File

A76-512-001 (Chicago, Ill. October 18, 2000).The IJ failed to recognize Ms. Li’s

membership in this group, however, committing both factual and legal error.

Accordingly, the IJ’s decision failing to address whether a particular social group

exists must be reviewed by a reviewing Court de novo. Secaida-Rosales, 2003 WL

21257949, at *6 cited in Barrie Dnistrian and Charles I. Poret , Brief for Petitioner,

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of, Shu Lin a/k/a Xiu Lin v. Ashcroft, U.S. Court of Appeals 2d Cir. Case No. 02-

4569 at 29-30. (Dec. 6, 2004).

A. Matter of Acosta Sets Forth the Proper Standard For Determining the Existence of a Particular Social Group.

Ms. Li is a member of a particular social group comprised of young,

unmarried Chinese women betrothed against their will. This identifiable class of

woman clearly satisfies the BIA criteria set forth in Matter of Acosta, 19 I&N Dec.

211 at 233. See Vidhani v. Canada, [1995] 3 F.C. 60 (“women who are forced

into marriages against their will have had a basic human right violated . . . the right

to enter into marriage is a basic human right.”). Without question, Ms. Li is a

member of this particular group.

B. The Persecution Ms. Li Fears Is “On Account Of” Her Membership In This Particular Social Group.

The forced marriage and retribution Ms. Li fears is on account of her status

as a young, Chinese woman subject to and in opposition of the feudal tradition of

involuntary marriage. Indeed, if Ms. Li were not subject to the antiquated customs

that are common throughout China or if she were unopposed to the marriage, she

would not be fearful of the village chief’s persecution.

C. Asylum on Account of Membership in Ms. Li’s Social Group Has Been Reco gnized Previously.

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The Second Circuit Court of Appeals this week granted asylum to a young

woman from China who fled a forced marriage. Gao v. Gonzales, No. 04-1874-AG

(2d. Cir 2006). This precedential decision is the first opinion addressing the

issue of forced marriage as a basis for asylum. At age 19, Ms. Gao was sold by her

parents through a broker to a man whom she was to marry when she turned 21.

When she tried to refuse, she was threatened with arrest. She fled to another city,

but he tracked her down, and her family was targeted for retribution. The parallels

to this case are clear. The Immigration Judge in Gao had denied asylum,

dismissing the claim as just "a dispute between two families," and ruling both that

the government could protect her, and that she could safely relocate within China.

Unfortunately, but not surprisingly, the BIA summarily affirmed.

Reversing the decision, the Second Circuit defined the social group as

"women who have been sold into marriage (whether or not that marriage has yet

taken place) and who live in a part of China where forced marriages are considered

valid and enforceable." They found she belonged to, and had a well-founded fear

of persecution on account of, her membership in that group.

The decision discussed Gomez, infra, which has long been seen as

problematic for gender cases in the Second Circuit. "Gomez can reasonably be read

as limited to situations in which an applicant fails to show a risk of future

persecution on the basis of the 'particular social group' claimed, rather than as

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setting an a priori rule for which social groups are cognizable." The court

remanded to the BIA on the relocation issue, noting that the agency must address

the reasonableness, and not just the availability, of internal flight. Of particular

relevance is also the decision in Matter of “Jane Doe”, File A76-512-001 (Chicago,

Ill. October 18, 2000) (), in which an IJ granted an application for asylum brought

by a young Chinese woman from a rural area of China.

The record in this case establishes that Ms. Li is a member of a cognizable

social group of young Chinese women who oppose forced, coerced or involuntary

marriages, that she will be persecuted on account of her membership in this social

group and that her fear of persecution is well-founded. Her membership in this

group is clear from the record, her gender and nationality is undisputed, and her

opposition to forced marriage is apparent from her actions, asylum application and

her testimony. This argument is consistent with the interpretation by the Board of

Immigration Appeals (BIA) in its seminal Acosta case, in which the Board ruled

that a social group should be defined by a “common, immutable characteristic” that

the members either cannot change, or should not be required to change because it

is fundamental to their individual identities or conscience.” Matter of Acosta, 19 I

& N Dec. 211, 233 (BIA 1985), rev’d on other grounds, by Matter of Mogharraabi,

19 I. & N. Dec. 439 (BIA 1987). The DHS has recently restated its position that

the Acosta test is “sound and well supported.” Brief of the Department of

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Homeland Security at 19-20, 24 In re R-A-, A #73-753-922 (DOJ, Feb. 19, 2004)

(hereinafter DHS Brief) cited in Gao supra. Ms. Li’s social group of “young

Chinese women who oppose coerced or involuntary marriages,” defined by her

gender, nationality and opposition to coerced or involuntary marriages, meets the

standards set out in Gomez, Acosta, and their progeny. See also Lukwago v.

Ashcroft, 329 F.3d 157, 171 (3d Cir. 2003). See Gomez v. INS, 947 F.2d 660, 664

(2d Cir. 1991). See Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir. 1985).

D. Ms. Li Faces Persecution on Account of Her Membership in a Social Group of Young Chinese Women Who Oppose Coerced or Involuntary Marriages

In addition to establishing membership in a particular social group, an

individual seeking asylum must show a causal relationship or “nexus” between the

persecution and one of the statutory asylum grounds. A showing of nexus requires

evidence that the persecutor is motivated at least in part by a cognizable ground in

inflicting the harm or that the harm is directed at the applicant because of her

protected characteristics. See INS v. Elias-Zacarias, 502 U.S. 478, 482-83 (1997).

The IJ denied asylum to Ms. Li because she did not see the nexus between the

persecution and her social group membership. Instead, she seemed to conclude that

the harm Ms. Li faced is a purely personal matter. However, this finding is not

supported by the record and must be reversed.

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V. Ms. Li’s Fear Of Persecution Is Also Attributable To Her Political Opinion And Serves As An Additional Ground For Asylum And Withholding.

The necessary question is whether Ms. Li expressed a political

opinion, which she did, and whether she was persecuted or is fearful of persecution

on account of the opinion expressed. See Fatin v. INS, 12 F. 3d 1233 (3d Cir.

1993) (to prevail on an asylum claim based on political opinion, “an alien must

specify the political opinion on which he or she relies, (2) show that he or she

holds that opinion, and (3) show that he or she would be persecuted or has a well-

founded fear of persecution based on that opinion”); Sotelo- Aquije v. Slattery, 17

F.3d 33, 37 (2d Cir. 1994) (“[t]he statute protects not only persons who

experienced persecution in the past but also those who reasonably fear persecution

if returned to their country of origin”) (emphasis in original).

As demonstrated before the IJ, Ms. Li clearly holds a political opinion

within the meaning of the relevant statutes -- that she is opposed to forced marriage

and the pressure imposed on women by the Chinese government and other external

forces to conform. Fatin, 12 F.3d at 1242. Although Ms. Li’s expression of

political opinion was not properly addressed by the IJ, the record makes clear that

Ms. Li has demonstrated her eligibility for refugee status on this basis as well. See

8 U.S.C.§ 1101(a)(42)(A).

VI. Ms. Li Could Not Have Relocated to Another Area of China to Avoid Persecution

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In denying asylum, the IJ and the BIA seemed to conclude that Ms. Li did

not demonstrate that she could not avoid persecution by relocating to another part

of China, since her family remains in China at the same location. J.A.- 34-35, 40,

46. The IJ failed to conduct a conduct a thorough fact-specific inquiry. An

applicant who has otherwise demonstrated a well-founded fear of persecution may

be denied asylum on the basis of internal relocation only if “under all the

circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R.

208.13(b)(2)(ii) (emphasis added). See Gao supra; See also Melkonian v. Ashcroft,

320 F.3d 1061, 1069 (9th Cir. 2003) (same); Hagi-Salad v. Ashcroft, 359 F.3d

1044, 1048 (8th Cir. 2004) (remanding case where IJ and BIA failed to conduct a

reasonableness analysis).

A. The IJ Failed to Conduct a Fact-Specific Inquiry Whether Relocation Is Reasonable Under The Circumstances

Determining whether internal relocation is reasonable requires an

adjudicator to consider, among other things, “administrative, economic, or judicial

infrastructure; geographical limitations; and social and cultural constraints, such as

age, gender, health, and social and familial ties.” 8 C.F.R. §208.13(b)(3). The

regulations caution that the list is not exhaustive, but merely provides examples of

relevant factors. Id. See also Hagi-Salad, 359 F.3d at 1048 (noting that the

internal relocation inquiry requires consideration of a “potentially broad range of

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relevant factors.”); Gambashidze v. Ashcroft, 381 F.3d 187, 191-92 (3d Cir. 2004)

(requiring a “totality of the circumstances inquiry”). The United Nations High

Commissioner for Refugees guidelines on internal relocation (hereinafter

“UNHCR Internal Relocation Guidelines”) suggest additional factors, including

the applicant’s personal circumstances, the existence of past persecution, safety

and security, respect for human rights, and possibility for economic survival.2 The

IJ here overlooked the context in which Ms. Li’s claim arises, including the

inadequacy of legal and judicial protections for women in China and the social and

cultural constraints they face, which must also be considered in determining

whether internal relocation is reasonable. 8 C.F.R. § 208.13(b)(3).

B. The IJ Erred in Finding that Relocation was Reasonable Even Though Ms. Li’s Persecutor Was A Government Official

When the persecutor is the government -as here- there is a rebuttable

presumption that relocation is unreasonable. 8 C.F.R. §208.13(b)(3)(ii); see also

Melkonian v. Ashcroft, 320 F.3d 1061, 1069 (9th Cir. 2003). The regulations

make no distinction between the local and national government. Finally, the

2 United Nations High Commissioner for Refugees, “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/03/04, July 23, 2003. While the opinion of the UNHCR is not binding, the Supreme Court has indicated its importance. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (U.S. 1987) (noting that Congress, by passing The Refugee Act of 1980, intended to bring U.S. asylum law in conformity with the United Nations Protocol Relating to the Status of Refugees).

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record establishes that the village chief has both the ability and inclination to target

and persecute Ms. Li even if she relocated-not only for her but by being able to

retaliate against her family on pretextual and trumped up charges. When the

persecutor has the ability to pursue the applicant throughout the home country

internal relocation may be unreasonable even where the persecutor is a

nongovernmental force. Matter of H-, 21 I. & N. Dec. 337, 349 n.7 (BIA May 30,

1996); see also Damaize-Job v. INS, 787 F.2d 1332, 1336–37 (9th Cir. 1986) (no

need to demonstrate countrywide persecution if persecutor shows no intent to limit

his persecution to one area, and applicant can be readily identified.) The village

chief retaliated against the family, as Ms. Li testified, for her refusal to marry him.

This pattern of persecution conveys an unambiguous resolve on his part to punish

Ms. Li for her refusal to marry him. Given his clout and his determination, it is

unlikely that Ms. Li could safely relocate anywhere in China. Indeed, the State

Dept Profile of Asylum Claims and Country Conditions in China acknowledges

that internal flight would be difficult for a person sought by a resourceful

government official. (noting that “it would . . . be very difficult for a ‘wanted’

person to hide indefinitely in China”). See United States. June 2004. Department of

State. Bureau of Democracy, Human Rights and Labor. China: Profile of Asylum

Claims and Country Conditions available at

22

http://pards.org/chinareportjune2004.doc. In light of the foregoing, it is clear

that the IJ erred in assuming that relocation was a reasonable alternative for Ms. Li.

VII. Ms. Li’s Fear Was Well-Founded Despite The Absence Of Corroborating Evidence.

As stated above, the asylum applicant bears the evidentiary burden of

proof and persuasion. 8 C.F.R. §208.13(a)(2000); Matter of Pass, 20 I&N Dec.

120 (BIA 1989). In proving persecution, the applicant's own testimony may

suffice if it is believable, consistent, and sufficiently detailed to provide a

plausible and logical basis for the applicant's fear, though the introduction of

corroborating evidence is the norm if such evidence is unavailable, the

applicant should explain its unavailability. Matter of S-M-J-, 21 I&N Dec.

722 (BIA 1997). Ms. Li did offer some explanation at her hearing. J.A.-26-27.

Specifically, Ms. Li argues that the BIA erred by requiring her to

corroborate her credible testimony with specific documentary support and then

determining, based on her failure to provide this corroboration, that she had failed

to meet her burden of proof. J.A-40.

The appropriate formulation is that credible testimony may be enough,

depending on the circumstances see Abankwah, 185 F.3d at 24 ("INS regulations

do not require that credible testimony -- that which is consistent and specific -- be

corroborated by objective evidence."); Sotelo-Aquije v. Slattery, 17 F.3d 33, 36 n.2

(2d Cir. 1994) ("corroboration is not required under INS rules"). These cases

23

establish simply that corroboration is not always required where the applicant's

testimony is credible and detailed, not that corroboration can never be required

under these circumstances. First, the BIA made no pronouncement on the

credibility of Ms. Li’s underlying testimony or of her explanations for the lack of

additional corroborating evidence. The IJ stated “ The respondent’s explanation

that she did not know that she should supply such corroboration is not satisfactory

explanation to this court.” J.A. at 40. It is "well established" that the BIA attaches

"significant weight to the credibility of an asylum applicant." In re O-D-, Int. Dec.

No. 3334, 1998 BIA LEXIS 36, at *5 (Jan. 8, 1998). As noted above, the precedent

of the BIA and of federal courts would sustain a petition for asylum or removal

based on credible testimony alone or, by extension, credible testimony combined

with convincing explanations for lack of corroboration. The BIA's failure to make

a credibility assessment denied Ms. Li the potential benefit of this rule.

The BIA affirmed the IJ's finding, but this finding does not withstand even

deferential review. On the record before us, a reasonable court could find the IJ

was plainly in error to find that Ms. Li failed to provide credible testimony,

including an explanation for her lack of documentary evidence. It is inappropriate

to base a credibility determination solely on the failure to provide corroborative

evidence. Corroboration cannot be the only factor taken into account because this

would effectively require corroboration in all cases, contrary to explicit provisions

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in the law that applicants may be able to rely exclusively on their testimony. As the

BIA has correctly observed, "[a] failure of proof is not a proper ground per se for

an adverse credibility determination. The latter finding is more appropriately based

upon inconsistent statements, contradictory evidence, and inherently improbable

testimony." In re S-M-J-, 1997 BIA LEXIS 3, at *23-24.

VIII. Ms. Li’s Fear Was Well-Founded Despite Her Family’s Continued Residence in China

As stated above, the term "well-founded fear of persecution" has a

subjective as well as an objective component. The BIA and the courts have held

that the ability of relatives of the asylum applicant to remain unharmed in the

native country undercuts the objective reasonableness of an asylum applicant's

well-founded fear of persecution. Matter of A-E-M-, 21 I&N Dec. 1157 (1998) (an

administrative case controlled by the law of the Fourth Circuit); Cuadras v. INS,

910 F.2d 567, 571 (9th Cir. 1990); Abedini v. INS, 971 F.2d 188, 192 (9th Cir.

1992).

In Matter of A-E-M-, the asylum applicant, a Peruvian national who had

been active in a Peruvian political party, feared that Shining Path guerrillas would

kill him if he were returned to Peru. In concluding that the applicant lacked an

objective, well-founded fear of future persecution from the Shining Path, the BIA

noted that the applicant's wife had remained unharmed in Peru for four years after

her husband's departure and there was no evidence other family members of the

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applicant and his wife had been harmed. On the same issue of well-founded fear of

persecution, the Board also noted that the asylum applicant had never had a face-

to-face encounter with any Shining Path guerrilla and that the only direct harm

experienced by the applicant was a painted threat on his house which he assumed

the Shining Path had drawn. The applicant presented no evidence the Shining Path

continued to be interested in his whereabouts since his departure. Finally, the

Board noted that State Department country condition evidence stated that the

Government of Peru had seriously damaged the Shining Path and that the guerrilla

organization operates only in a few areas in Peru and thus the asylum applicant had

not shown that his fear of persecution exists countrywide.

In Abedini, the asylum applicant, an Iranian citizen, contended that he would

be subject to persecution from the Iranian government on account of his political

and religious views. 971 F.2d at 190. He testified that he could be prosecuted under

Islam law for distributing motion pictures and concert videos made in the Western

hemisphere. Id. He further testified that Iranian authorities had raided his place of

business and had confiscated his motion pictures and videos and that the Ministry

of Justice had issued a warrant and subpoena accusing him of distributing Western

propaganda and ordering him to appear at a hearing. Id. In assessing the objective

reasonableness of his fear of future persecution, the Ninth Circuit remarked that the

applicant had testified that none of his family members in Iran had been subject to

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persecution. Id. at 192. The court also noted that the applicant had been able to

attend a law university in an experimental institute and to continue profiting from

his filmmaking work even after the supposed confiscation of his pictures and

videos by the Iranian authorities. Id.

This case is distinguishable from Matter of A-E-M- and Abedini. In this

case, Ms. Li had concrete evidence the local government planned harm since Ms.

Li’s family’s furniture was destroyed and the mother was arrested for practicing

Falun Gong when the village chief retaliated for Ms. Li’s not marrying him. J.A.-

23-25.

IX. The Immigration Judge Failed to Fully Analyze the Issue of Whether Ms. Li Demonstrated that She Would Be More Likely Than Not Tortured

The United States is a party to the United Nations Convention Against

Torture (“CAT”), a multilateral treaty designed both to prevent torture and

to compensate victims of torture. Article 1 of the CAT defines torture and

this definition has been incorporated into United States law as 8 C.F.R.

§208.18(a). Pursuant to 8 C.F.R. §208.16(c), withholding of removal under

CAT is available to an applicant who establishes “it is more likely than not”

that he or she would be tortured in the proposed country of removal.”

Section 208.16(c)(2); see 64 Fed. Reg. 8478, 8480 (Feb. 19, 1999).

Ms. Li had used a “snakehead” (smuggler) to come to the Untied States. Her

father paid the snakehead over twenty thousand US dollars for this service. If she

27

were to return to China the village head would retaliate by sending her to jail, and

charging her with being a member of the illegal Falun Gong based on her mother’s

membership in that organization. The snakehead, who has not been fully repaid

yet, would also retaliate. The torture Ms. Li is likely to endure if she were returned

to China is “by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.” 8 CFR §208.18(a)(7).

Acquiescence requires that “the public official, prior to the activity constituting

torture, have awareness of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.” 8 C.F.R. §208.18(a)(7). The

IJ’s decision that abuse from not paying snakeheads (traffickers or smugglers)

amounts to “prosecution not persecution “is wrong. J.A. at 40. The treatment

returnees endure is at the hands of the Chinese government. The government has

drafted the laws and employed the policies through which torture is carried out.

Returnees to China are subjected to “neibu” laws, which refer to official

documents that are only within the control of the government and Communist

Party organizations. Local authorities are given enormous discretion to make

decisions on the treatment of returnees. The fines imposed are included under this

law, but the amount of these fines is unpublished. In a recently decided Seventh

Circuit case, Lian v. Ashcroft, Judge Posner, writing for the court, emphasized the

need to consider evidence that a Chinese national from the Fujian province would

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be tortured by the government for exit visa violations if returned. Lian v. Ashcroft,

379 F.3d 457, 467 (7th Cir. 2004) (“the immigration judge failed to give the issue

[of whether respondent had demonstrated that it would be more likely than not he

would be tortured] a responsible analysis”). See also U.S. Citizenship and

Immigration Servs., China: Repatriated Illegal Emigrants at 2 (2003) available at

http://uscis.gov/graphics/services/asylum/ric/documentation/China4.htm.

CONCLUSION

For the reasons expressed above, the Petitioner requests that this petition for

review be granted, that the decision of the Board of Immigration Appeals be

reversed, that her application for asylum be granted, and that she be admitted as an

asylee or any other relief the Court deems appropriate.

RESPONDENT'S STATEMENT OF COMPLIANCE

I certify that the brief for respondent complies with Fourth Circuit and

Federal Rule of Appellate Procedure Rule 32. It consists of 30 pages of double

spaced text, approximately 6,632 words, presents in Times New Roman 14 point,

and otherwise complies with the requirements.

Respectfully submitted,

29

S. von Struensee VSB 47974Counsel for Yan Dan LiArlington, VA 22205 703-536-2993

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this _________ day of ____________2006 I caused

to be served a true copy thereof in a sealed envelope, with postage fully prepaid,

on:

Jocelyn Lopez Wright, EsquireOffice of Immigration LitigationU.S. Department of Justice / Civil Division1331 Pennsylvania Avenue, N.W.Washington, D.C. 20004

Susan von Struensee

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