Mei Qin Xie v. Attorney General of the United States

Honorable Marvin J. Garbis, Senior United States District Judge for the District of1
Maryland, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 07-2774
_____________
MEI QIN XIE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A73-533-075)
Immigration Judge: Hon. Miriam K. Mills
Argued January 6, 2009
Before: CHAGARES, and HARDIMAN, Circuit Judges, and GARBIS, District Judge1
(Filed: August 24, 2009)

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Alan M. Strauss, Esq. (Argued)
Law Office of Stanley H. Wallenstein
41-44 Beekman Street, 3d Floor
New York, NY 10038
Counsel for Petitioner
James A. Hunolt, Esq.
Sada Manickam, Esq.
David Schor, Esq. (Argued)
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
PO Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
__________________
OPINION OF THE COURT
__________________
CHAGARES, Circuit Judge.
Mei Qin Xie (“Xie”) petitions for review of an order denying her asylum, arguing
that the Board of Immigration Appeals (“BIA”) improperly applied the clearly erroneous
standard of review to the Immigration Judge’s (“IJ’s”) factual findings and that the BIA
abused its discretion in denying her asylum. We will grant her petition for review and
remand. e solely for the benefit of the parties, who are familiar with the factual context
and legal history of this case, and will therefore set forth only those facts necessary to our
analysis. Xie is a citizen and native of China. She entered the United States in November
1994 and applied for asylum in December 1994. Xie originally claimed that she had a

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fear of persecution based on her religion and involvement with a student protest.
Between 1994, when Xie first applied for asylum, and 2002, when she had her asylum
interview, she married Qi Guan, a naturalized Canadian citizen. Between 1998 and 2005,
she gave birth to four children.
In March 2002, an Asylum Officer (“AO”) denied her application. The AO then
referred Xie’s case to immigration court in New York City and initiated removal
proceedings on March 22, 2002 by filing a Notice to Appear in Removal Proceedings. At
the removal proceedings, the Department of Homeland Security (“DHS”) charged Xie
with deportability because she did not have valid entry documents when she came to the
United States in 1994. Xie conceded the charge of deportability, but contended that she
was eligible for asylum, withholding of removal, and deferral of removal under the
Convention Against Torture (“CAT”).
The IJ heard the case on September 14, 2004. At the hearing, Xie informed the IJ
that she was changing the basis for her claim. She withdrew her claims about persecution
based on the protest and religion and based her claim solely on her fear of future
persecution for violating China’s “one child” policy. In an off the record conversation,
she admitted to the IJ that her claims about the student group were not true and that she
no longer feared persecution because of her religious beliefs.
The IJ granted Xie’s asylum application on October 12, 2004, but denied her
application for withholding of removal and deferral of removal under the CAT. DHS

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appealed, and on March 21, 2006 the BIA reversed the IJ’s asylum decision and ordered
Xie’s removal to China. The BIA also denied Xie’s withholding of removal and CAT
claims, and as well as her request for voluntary departure.
Xie then appealed to this Court, arguing that the BIA had improperly applied a de
novo standard of review to the IJ’s fact finding instead of the proper clearly erroneous
standard. This Court then remanded the case back to the BIA. On May 18, 2007, the
BIA issued a new decision, again reversing the IJ’s decision to grant Xie asylum, finding
that the IJ’s factual findings were clearly erroneous. It also determined that, in the
exercise of its discretion, Xie did not merit asylum or voluntary departure.
II.
The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b). This Court has
jurisdiction under the Immigration and Nationality Act. 8 U.S.C. § 1252; Wong v.
Attorney General, 539 F.3d 225, 230 (3d Cir. 2008). We review de novo whether the
BIA properly applied the clear error standard to the IJ’s factual and credibility findings.
Kabba v. Mukasey, 530 F.3d 1239, 1245 (10th Cir. 2008).
III.
The applicable regulations provide that the BIA should review the IJ’s factual
determinations under a “clearly erroneous” standard, and that the BIA should not itself
engage in factfinding:
(i) The Board will not engage in de novo review of findings of fact determined by
an immigration judge. Facts determined by the immigration judge, including

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findings as to the credibility of testimony, shall be reviewed only to determine
whether the findings of the immigration judge are clearly erroneous . . . .
(iv) Except for taking administrative notice of commonly known facts such as
current events or the contents of official documents, the Board will not engage in
factfinding in the course of deciding appeals. A party asserting that the Board
cannot properly resolve an appeal without further factfinding must file a motion
for remand. If further factfinding is needed in a particular case, the Board may
remand the proceeding to the immigration judge or, as appropriate, to the Service.
8 C.F.R. § 1003.1(d)(3)(i) and (iv).
However, “[t]he Board may review questions of law, discretion, and judgment and
all other issues in appeals from decisions of immigration judges de novo.” 8 C.F.R. §
1003.1(d)(3)(ii). The BIA may also exercise de novo review when it analyzes “the
application of a particular standard of law to [the] facts,” including whether the harm
alleged rises to the level of a well-founded fear of persecution. Matter of A-S-B-, 24 I. &
N. Dec. 493, 496-97 (2008); Matter of V-K-, 24 I. & N. Dec. 500, 501 (2008) (citation
omitted) (“[T]here was no intent to apply the restrictive ‘clearly erroneous’ test to mixed
questions of fact and law where the so-called ‘fact’ consists of a finding as to the degree
of possibility of a result occurring that is necessary to sustain a statutory basis for
eligibility (e.g., the extent of hardship or the chance of persecution or torture if the alien is
removed.).”); The Board of Immigration Appeals: Procedural Reforms to Improve Case
Management, 67 Fed. Reg. 54878, 54890 (Aug. 26, 2002).

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In Anderson v. City of Bessemer City, 470 U.S. 564 (1985), the Supreme Court2
explained that “the foremost” of the principles guiding a clearly erroneous analysis is that
“[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” 470 U.S. at 573 (citations and internal quotation marks
omitted, brackets in original). The Court went on to state that “[w]here there are two
permissible views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Id. at 574 (citations omitted).
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We hold that the BIA improperly applied the clearly erroneous standard when it
rejected the IJ’s factual findings. The IJ found that Xie had “established a reasonable2
possibility that if she were to return to China with her children . . . she could suffer
significant financial harm and be subject to a forced abortion or sterilization with respect
to her current pregnancy.” Appendix (App.) 13. This is a factual finding which the BIA
should have reviewed for clear error. Cf. Wong, 539 F.3d at 230 (citation and quotation
marks omitted) (“[t]he BIA’s conclusions regarding evidence of . . . the well-founded fear
of persecution are findings of fact . . . .”). Rather than apply the correct standard,
however, the BIA appears to have engaged in a de novo review of the record.
For instance, purporting to apply the proper, clearly erroneous standard, the BIA
found that the IJ committed clear error when she concluded that Xie could “‘suffer
significant financial harm’” and that “‘social compensation fees can be sufficiently
exorbitant enough to accomplish the same end as physical force, i.e., coercion’” because
the IJ did not provide a citation to a particular part of the Country Condition reports in
making this finding. App. 5. The BIA alternatively cited an example of a woman who

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The BIA is permitted to engage in factual finding when it takes administrative3
notice of official documents such as State Department reports. 8 C.F.R. §
1003.1(d)(3)(iv); Shao v. Mukasey, 546 F.3d 138, 166 (2d Cir. 2008). Because the IJ’s
findings with regard to this issue were based solely on the country condition reports, the
BIA could have properly engaged in a de novo review of those reports to come to a
different conclusion from the IJ. However, the BIA purported to review the evidence for
clear error, and so we remand.
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had to pay only about $60 per child in fines. App. 5-6. Xie, however, points to
information contained in the Country Condition reports to support the IJ’s finding. The
U.S. State Department Report from 2003, for example, states that the threat of economic
sanctions for violating the child planning laws “sometimes left women with little practical
choice but to undergo abortion or sterilization.” App. 188. The same report states that,
while fees varied, they were “generally extremely high” and “ranged from one-half to
eight times the average worker’s annual disposable income.” Id. A 2004 report makes
similar statements. See App. 234-37. This example illustrates that the BIA appeared to
conduct a de novo review of the evidence rather than analyze whether the IJ’s findings
were “permissible” interpretations. Anderson v. City of Bessemer City, 470 U.S. 564,
574 (1985). This was improper, and this Court will remand to the BIA conduct a proper3
analysis.
The second issue is whether the BIA erred when it declined to grant Xie’s request
for asylum. In deciding not to grant Xie’s request, the BIA found that Xie was not
credible. Just as with the first issue, this Court reviews, de novo, whether the BIA
applied the proper standard of review to the IJ’s decision. Kabba, 530 F.3d at 1245. The

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BIA should review the IJ’s credibility findings under a clearly erroneous standard. 8
C.F.R. § 1003.1(d)(3)(i). Here, the IJ found that Xie’s explanations were credible. She
explained:
Despite [Xie’s] failure at her March 7, 2002, asylum interview to disavow her
alleged student political activities as written in her 1994 I-589, the Court finds that
she credibly explained during this hearing that at the time of that interview, she did
as she was directed by her attorney and repeated the claim as it appeared in her I-
589. A comparison of the March 7, 2002, Assessment to Refer (Exhibit 5) and the I-
589 bears this out.
App. 13-14. The IJ continued:
[Xie] also credibly explained why she had included the political activity as a basis
for her original claim. She testified how she simply signed her name to an
application, as she was directed, in order to get a Social Security card. Thus, the
Court finds these discrepancies, which [Xie] has credibly explained and
rehabilitated, were previous wrong allegations.
App. 14. The IJ, then, found that Appellant had credibly explained why she had lied at her
asylum interview. It was only then that the IJ exercised her discretion to find that Appellant
merited asylum. Id.
The BIA gave no reasons as to why it rejected the IJ’s determination that Xie had
credibly explained, at least, the discrepancies between her initial application and her current
one and/or why she gave false testimony at her asylum hearing. Indeed, the BIA did not
cite to the clearly erroneous standard in this section of its opinion at all. Therefore, this
Court will remand this matter to the BIA in order for the BIA to apply properly the clearly
erroneous standard of review to the IJ’s credibility determinations. Ramirez-Peyro v.
Gonzales, 477 F.3d 637, 641 (8th Cir. 2007).

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III.
For the foregoing reasons, Xie’s petition for review will be granted, and this cause
will be remanded to the BIA for further consideration consistent with this opinion.

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