U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

REAL Requires ILJ to Provide Real Reasons for Calling BS

Xiu Ying Wu illegally entered the United States on August 2, 2008. A mere 18 days later, she was served with notice to appear. That's impressively efficient, isn't it?

She asked for asylum and withholding of removal because of alleged persecution by family-planning officials in the Fujian Province. She had apparently been illegally cohabitating with her boyfriend, who accidentally impregnated her. The officials' response, according to Wu, was to perform a forced abortion. They also got her fired from her job and fined both her and the father of the unborn child.

Wu's Case

In support of her claims, Wu presented sworn statements from family members and the boyfriend, an unauthenticated abortion certificate, receipts from the paid fines, and a letter of termination from her prior employer for violating family-planning laws.

When asked how the officials knew of her pregnancy, she speculated that a doctor must've snitched after she came in without any family support or a husband present.

ILJ Says 'No Way'

The ILJ's main reason for denying her asylum can be paraphrased as, "Meh. Seems implausible. Not buying it."

After calling BS, he then pointed out that the U.S. State Department reports indicated that forced abortion was (almost always) a thing of the past, that embassies were unaware of certificates being issued for forced abortions, documents in Fujian are often forged, and Wu's certificate was unauthenticated and passed through Hong Kong before arriving stateside.

REAL Talk

The REAL ID Act of 2005 sets the standard for credibility determinations. It provides, in part, for consideration of such things as plausibility of one's story, consistency of a story with reports from the Department of State, etc. However, an adverse-credibility finding must be supported by "specific, cogent reasons".

Fortunately for Wu, the ILJ's "it seems fishy" determination isn't exactly specific or cogent. In fact, the Eleventh Circuit thought it was a bit irrelevant.

As for the remaining reasons, they were mainly based on the ILJ's over-reliance on State Department and other agency reports. Though those can, and should, be a factor in a REAL ID determination, they should not be the sole reliability factor. Besides, even those reports were couched with ambiguities (no known forced abortions, no known certificates, some forged documents, etc.).

The forced abortion could have happened. It might not have. Merely pointing to ambiguous reports and gut instinct is not enough for an adverse asylum decision.

The court also noted that in a recent forced abortion/asylum decision that went the other way, there were inconsistencies in the applicant's story that were not present here. At the time, they took pains to differentiate the case from a Seventh Circuit decision - a decision which was eerily similar fact and evidence-wise to this case.

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