Jian Lian Guo v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2972
JIAN LIAN GUO,
Petitioner
v.
JOHN ASHCROFT, Attorney General of the United States
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(No. A77-297-574)
Argued June 29, 2004
Before: AMBRO, ALDISERT and STAPLETON,
Circuit Judges
(Opinion filed: October 25, 2004)

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2
Theodore N. Cox, Esquire
Joshua Bardavid, Esquire (Argued)
401 Broadway, Suite 701
New York, NY 10013
Attorney for Petitioner
Peter D. Keisler
Assistant Attorney General, Civil Division
Mark C. Walters
Assistant Director
Theordore C. Hirt, Esquire (Argued)
Douglas E. Ginsburg, Esquire
John D. Williams, Esquire
John M. McAdams, Jr., Esquire
Department of Justice Civil Division
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
AM BRO, Circuit Judge

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1On March 1, 2003, the INS ceased to exist as an agency
within the Department of Justice and the INS’s functions were
transferred to the Department of Homeland Security. See
Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441,
451 & 471, 116 Stat. 2135. The Board remains within the U.S.
Department of Justice.
3
Jian Lian Guo seeks review of the order of the Board of
Immigration Appeals (“Board”) denying her motion to reopen
her immigration proceedings. Because we conclude that the
Board impermissibly relied on a prior adverse credibility
determination unrelated to Guo’s petition for asylum, appears to
have applied an incorrect standard in assessing her motion to
reopen, and abused its discretion in deeming the evidence Guo
submitted as insufficient to establish a prima facie case under
the correct standard, we grant the petition for review and remand
for further proceedings.
I. Factual and Procedural History
Guo is a native and citizen of China. She entered the
United States without valid entry documentation on January 3,
2000. On January 21, 2000, the Immigration and Naturalization
Service (“INS”)1 charged her with removability based on
§ 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(7)(A)(i)(I). At a master calendar
hearing on March 23, 2000, Guo conceded removability. The
same day she filed an application for asylum based on religious
persecution and requested withholding of removal under INA
§ 241(b), 8 U.S.C. §1231(b), and Article III of the United

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2The United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec.
10, 1984, 1465 U.N.T.S. 85, implemented in the United States
by the Foreign Affairs Reform and Restructuring Act of 1998,
Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761 (codified at 8
U.S.C. § 1231).
4
Nations Convention Against Torture.2
Guo initially justified her application for asylum on the
basis of religious persecution. She stated that she had joined an
“underground church” in China in 1996 and was baptized in July
1997. In December 1999, government officials purportedly
sought to arrest her at a church meeting where she was teaching
Sunday school; she allegedly evaded arrest and fled the country.
Guo further claimed to have left behind in China her first
husband, whom she had married in 1999 and whose
whereabouts she did not know.
On August 2, 2000, an Immigration Judge (“IJ”) denied
Guo’s application for asylum. The IJ found that Guo was not
credible. He concluded that her story was fabricated and, even
if true, would not merit asylum. He also doubted Guo’s
professed ignorance of her first husband’s location and
speculated that he was in the United States. He therefore denied
her application for asylum. Guo appealed, and on October 29,
2002, the Board affirmed without issuing a separate opinion.
On January 21, 2003, Guo filed a motion to reopen the
immigration proceedings based on intervening developments.
In March 2001, she married Li Kang Chan in New York. On

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3The child was born on July 24, 2003, after the Board issued
its decision.
5
January 15, 2002, their first child was born in Manhattan. Later
that year, Guo discovered that she was again pregnant.3 She
thus claimed that she was entitled to asylum based on China’s
one-child family planning policy; she feared that if she returned
to China she would be subject to China’s forcible sterilization
policy and other penalties. In support of her motion to reopen,
Guo submitted a previous Board decision granting reopening for
a Chinese applicant with two United States-born children, a new
application for asylum, her marriage certificate, the birth
certificate of her first child, a letter from her obstetrician
describing her pregnancy, and an affidavit by retired
demographer John Shields Aird, Ph.D.
The Board denied the motion to reopen on June 16, 2003,
explaining that Guo had “failed to meaningfully address the
negative credibility determinations noted in the Immigration
Judge’s decision.” The Board’s opinion stated that even if it
“were to find her claim credible, she has not established a ‘well-
founded fear’ that a reasonable person in her circumstances
would fear persecution” on a protected basis. It concluded that
the evidence she had presented was insufficient to establish that
“officials punish returning Chinese nationals who are pregnant,
have given birth to children in foreign countries, or prohibit
them from having more children upon their return.”
The Board had jurisdiction over Guo’s motion to reopen
under 8 C.F.R. § 1003.2(c). We have jurisdiction over her
timely petition for review pursuant to 8 U.S.C. § 1252.

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6
Discussion
I. Overview of the statutory framework
Section 208(b) of the INA, 8 U.S.C. § 1158(b), confers
on the Attorney General discretion to grant asylum to an alien
who is a “refugee.” An individual qualifies as a refugee if he or
she is “unable or unwilling” to return to his or her country
“because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion.” INA § 101(a)(42)(A), 8
U.S.C. § 1101(a)(42)(A). Forced abortion and forced
sterilization constitute persecution “on account of political
opinion.” INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). An
individual with a well-founded fear that she will be forced to
undergo a coercive population control procedure of this sort or
be subject to persecution for failure to do so has a well founded
fear of persecution. Id.
An applicant bears the burden of proving eligibility for
asylum based on specific facts and credible testimony. 8 C.F.R.
§ 208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.
2001). In order to demonstrate a well-founded fear of
persecution, an applicant must satisfy three requirements: (1) he
or she has a fear of persecution in his or her native country; (2)
there is a reasonable possibility that he or she will be persecuted
upon return to that country; and (3) the applicant is unwilling to
return to that country as a result of his or her fear. 8 C.F.R. §

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4The eligibility threshold for withholding of removal is even
higher: the Attorney General must determine that repatriation
will more likely than not jeopardize the alien’s life or freedom
on account of one of the protected grounds. INA § 241(b)(3),
8 U.S.C. § 1231(b)(3). The applicant must therefore
demonstrate a “clear probability” of persecution. Senathirajah
v. INS, 157 F.3d 210, 215 (3d Cir. 1998). Given this higher
standard, an applicant who does not qualify for asylum also does
not qualify for withholding of removal.
7
208.13(b)(2)(i).4
Board determinations are upheld if they are “supported
by reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We will reverse
only if “the evidence not only supports [a contrary] conclusion,
but compels it.” Id. at 481 n.1 (emphasis omitted). Adverse
credibility determinations are factual matters and also are
reviewed for substantial evidence. Balasubramanrim v. INS,
143 F.3d 157, 161 (3d Cir. 1998). They likewise will be upheld
unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
In this case, we are asked to review the Board’s denial of
Guo’s motion to reopen. As a general rule, motions to reopen
are granted only under compelling circumstances. The Supreme
Court has explained:
The granting of a motion to reopen is . . .
discretionary. . . . [T]he Attorney General has

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8
‘broad discretion’ to grant or deny such motions.
Motions for reopen ing o f imm igratio n
proceedings are disfavored for the same reasons
as are petitions for rehearing and motions for a
new trial on the basis of newly discovered
evidence. This is especially true in a deportation
proceeding, where, as a general matter, every
delay works to the advantage of the deportable
alien who wishes merely to remain in the United
States.
INS v. Doherty, 502 U.S. 314, 323 (1992) (citations omitted).
In light of these considerations, our review is highly deferential:
we review the denial of a motion to reopen for abuse of
discretion. Id. at 323. “Discretionary decisions of the [Board]
will not be disturbed unless they are found to be arbitrary,
irrational, or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d
Cir. 1994) (quotation omitted).
II. Application to Guo
Guo makes two principal arguments. First, she argues
that the Board erred in considering the IJ’s adverse credibility
determination, which was based on facts unrelated to China’s
family planning policies. Second, Guo suggests that the
documents she submitted are adequate to establish prima facie
eligibility for asylum—a reasonable likelihood that she would
prevail on the merits if a motion to reopen were granted—and
she contends that the Board erroneously held her to a higher
standard. We agree with her on both counts.

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9
A. Adverse credibility determination
In reviewing Guo’s initial petition for asylum, the IJ
deemed her testimony not credible. The Board relied on that
adverse credibility determination in evaluating her motion to
reopen. Because the basis for the IJ’s credibility assessment was
utterly unrelated to Guo’s later claim, the Board erred by taking
it into consideration.
Guo does not dispute that the IJ’s credibility
determinations were supported by the record. Indeed, she would
be hard pressed to argue otherwise. The IJ’s ruling contained
seven distinct references to her lack of credibility. The adverse
credibility findings were directly related to the central events
upon which Guo’s asylum claim initially was based: her alleged
religious persecution.
The legitimacy of an initial credibility determination does
not, however, justify denial of all subsequent applications for
asylum. No one has explained how the IJ’s adverse credibility
findings implicated Guo’s motion to reopen on a ground not
previously dealt with by the IJ. Guo’s credibility (or lack
thereof) for religious persecution simply is not relevant to her
motion to reopen in this case, which relied principally on the
fact of her second pregnancy in contravention of China’s one-
child policy and on China’s practice of persecuting those who
violate the policy.
The Government’s argument reduces to a bad-faith
theory of asylum law: once credibility is tarnished, all successive
asylum applications are irrebuttably presumed to be false. But
case law does not support that once an applicant is deemed
uncredible, she is excluded from making further, unrelated

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58 U.S.C. § 1158(d)(6) provides that an alien adjudged by the
Attorney General to have made a “frivolous application for
asylum,” as defined in the statute, will be permanently barred
from entering the United States. There was no such finding in
this case. The protections afforded to the alien under this
provision, as well as its relatively infrequent application,
indicate that Congress did not intend to preclude an alien from
reopening asylum proceedings based solely on a prior adverse
credibility determination.
6For example, the Government contends that Guo’s
credibility determination is relevant because it implicated her
purported “family situation.” Namely, “[t]he Immigration
Judge was entirely unconvinced by Guo’s description of the
status of her [first] husband, Yung Chu Li.” To be sure, we
10
asylum claims.5 Nor does one adverse credibility finding beget
another. On the contrary, an IJ must justify each adverse
credibility finding with statements or record evidence
specifically related to the issue under consideration. We have
emphasized that adverse credibility findings are afforded
deference only if they are “supported by specific cogent
reasons.” Gao v. Ashcroft, 299 F.3d 266, 276 (3d Cir. 2002).
Those reasons “must be substantial and bear a legitimate nexus
to the finding.” Id.
Moreover, we are unable to imagine a sufficient nexus
between Guo’s suspect testimony concerning her alleged
religious persecution and the Board’s conclusion about China’s
family planning policy. The Government’s efforts to identify a
sufficient connection are unpersuasive.6 And indeed our Court

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find this aspect of Guo’s story troublesome. Guo has not
indicated that she and her first husband were divorced, and yet
subsequent to her initial hearing she married Li Kang Chan in
the United States and had two children with him. But the
Government has failed to explain how Guo’s questionable
marital status is relevant to her asylum claim. She is not
seeking lawful immigration status based on her marriage to Li
Kang Chan. And it is not disputed that Guo has two children.
Neither the identity of the children’s father nor his relationship
to Guo has any bearing on her claim.
Similarly, because the IJ suspected that Guo “is here for
different reasons rather than because of religion,” the
Government argues that the adverse credibility finding stemmed
from his suspicion that Guo’s true motivation for seeking
asylum was to remain in the United States. This is speculative.
Moreover, we are unaware of any case that holds that an
applicant will be denied asylum simply because building a
better life in America was a motivation for leaving her country.
11
(albeit in non-precedential opinions) disconnects adverse
credibility from China’s family planning policy. See, e.g., Cai
v. Ashcroft, 63 Fed. Appx. 625, 2003 WL 1972020 (3d Cir. Apr.
29, 2003) (remanding to the Board for reconsideration of a
denial of asylum based on China’s family planning policy where
the petitioner, whom the IJ found lacked credibility, had two
children at the time of filing and four at the time of her motion
for reconsideration); cf. Lin v. INS, 78 Fed. Appx. 784, 2003 WL
22454477 (2d Cir. Oct. 29, 2003) (reversing Board’s denial of
a motion to reopen, based on adverse credibility finding, in light

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7Prima facie scrutiny entails consideration of “the evidence
that accompanies the motion as well as relevant evidence that
may exist in the record of the prior hearing, in light of the
applicable statutory requirements for relief.” Id. at 173.
12
of a new translation of a sterilization certificate and an affidavit
by Dr. Aird).
B. Well-founded fear of persecution
Because we conclude that the Board was not entitled to
rely on the IJ’s prior, unrelated adverse credibility determination
in denying Guo’s motion to reopen, we evaluate the alternative
basis for its holding. The Board “note[d] that, even if [it] were
to find her claim credible, she has not established a ‘well-
founded fear’ that a reasonable person in her circumstances
would fear persecution” within the meaning of the statute. Our
review of this argument has two parts. We consider whether the
Board applied the correct standard in assessing whether Guo
presented sufficient evidence and, if not and we do not remand,
we determine whether Guo satisfied the correct standard.
A motion to reopen must establish prima facie eligibility
for asylum. Sevoian v. Ashcroft, 290 F.3d 166, 173, 173 n.5 (3d
Cir. 2002); Reyes v. INS, 673 F.2d 1087, 1089 (9th Cir. 1982).
In Sevoian, we explained that “the prima facie case standard for
a motion to reopen . . . requires the applicant to produce
objective evidence showing a ‘reasonable likelihood’ that he can
establish [that he is entitled to relief].”7 Id. at 175. The Board,
however, in its denial of Guo’s motion to reconsider, stated that
she must proceed to end-game and “establish that there is a

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8In Sevoian, we wrote that there are
three principal grounds on which . . . the Board
may deny a motion to reopen immigration
proceedings. First, it may hold that the movant
has failed to establish a prima facie case for the
relief sought . . . . Second, it may hold that the
movant has failed to introduce previously
unavailable, material evidence that justifies
reopening . . . . Third, in cases in which the
ultimate grant of relief being sought is
13
pattern or practice [of enforcing the family planning policy
against Chinese nationals with foreign-born children] in her
homeland” (emphasis added). In this context, “establish” means
the evidence for asylum outweighs the evidence against. A
“reasonable likelihood” means merely showing a realistic
chance that the petitioner can at a later time establish that
asylum should be granted. The distinction may at first appear to
be subtle shading, but without it “prima facie” (meaning at first
sight) would lack meaning. Guo argues that the evidence she
submitted, even if initially insufficient to establish eligibility for
asylum, at least satisfied the prima facie evidence requirement.
Having concluded that the Board held Guo to an
excessively rigorous standard, we might ordinarily remand for
application of the proper standard. But in this case, we conclude
as a matter of law that the evidence submitted by Guo in support
of her motion to reopen constitutes prima facie evidence.8 While

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discretionary (asylum . . . but not withholding of
deportation), the Board can leap ahead over the
two threshold concerns (prima facie case and new
evidence/reasonable explanation) and simply
determine that even if they were met, the movant
would not be entitled to the discretionary grant of
relief.
Id. at 169-170 (citations and quotations omitted). In this case,
the Board gave no indication that it was basing its decision on
either the second or third ground for denying a motion to reopen.
Furthermore, we know of no reason why Guo’s motion to
reopen should be denied on either of those grounds.
14
we cannot yet say that Guo is entitled to asylum, we are
persuaded that she at least deserves a hearing.
Thus in the following discussion we do not reach the
merits of Guo’s claim. But we do explain the relevant tests
under applicable case law in support of our conclusion that Guo
has shown a realistic chance of success on remand.
Whether fear of persecution is well-founded turns, as a
practical matter, on two inquiries. First, an applicant must show
a subjective fear of persecution. She may satisfy this prong by
a showing that her fear is genuine to her. Zubeda v. Ashcroft,
333 F.3d 463, 469 (3d Cir. 2003). A primary means of showing
that fear is genuine is with credible testimony. Guo’s statement
that accompanied her motion to reopen mentions that she
“cannot go back to China” because, “[i]f I was sent back to
China, I will be forcibly aborted. If I was sent back after I

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15
delivered the second child, either my husband or I will be
sterilized by [the] Chinese government because we violated [its]
family planning policy.” This statement reveals that there is a
reasonable likelihood she will give credible testimony that her
fear is genuine.
Second, the applicant must support the objective
reasonableness of her fear. “Determination of an objectively
reasonable possibility requires ascertaining whether a reasonable
person in the alien’s circumstances would fear persecution if
returned to the country in question.” Zubeda, 333 F.3d at 469
(citing Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997)).
While it is unclear precisely how likely persecution must be to
render an applicant’s fear of future persecution well-founded,
“[o]ne can certainly have a well founded fear of an event
happening when there is less than a 50% chance of the
occurrence taking place.” INS v. Cardoza-Fonseca, 480 U.S.
421, 431 (1987).
Guo’s principal evidence regarding China’s enforcement
of its one-child policy with respect to foreign-born children was
an affidavit of Dr. Aird, a former “specialist on demographic
developments and population policy in . . . China.” The
affidavit states that Chinese couples returning home with
unauthorized children “cannot expect to be exempt” from the
family planning policy because
to ignore their violations would tend to undermine
the enforcement of the rules in China. The
Chinese authorities cannot afford to let rumors get
out that couples of childbearing age can evade the
one-child limit by leaving the country illegally,

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16
having unauthorized children in foreign countries
and returning home without suffering the standard
penalties.
Aird thus opines that “the concerns of Chinese couples over
what awaits them if they are repatriated with children born
abroad without official permission are probably in most cases
well-founded.”
The affidavit cites seven sources. Much of Aird’s
affidavit is devoted to discrediting one of them, the State
Department’s April 1998 Profile of Asylum Claims and Country
Conditions for China (“1998 Profile”). That document reports
that China’s one-child family planning policy varies in
implementation and that Fujian Province, where Guo lived, is
“lax” in its enforcement of the policy (in some cases permitting
parents to apply after several years to conceive a second child if
their first child is female). In fact, the 1998 Profile suggests that
enforcement of the policy is applied so “loosely” in Fujian
Province—exceptions to the one-child policy “are becoming the
norm” in rural areas—that the province has been criticized in the
official press. More importantly, the 1998 Profile discusses the
application of the one-child policy to couples with foreign-born
children and concludes, based on “anecdotal information,” that
“the relevant authorities do not always handle such situations
strictly. At least some couples that have children in the United
States beyond the nominal limits and then return to China are,
at worst, given modest fines.”
Aird criticizes the 1998 Profile’s reliance on “anecdotal”
evidence. He points to other sources, such as newspaper
articles, which indicate that the one-child policy is indeed

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17
enforced against couples with unauthorized foreign-born
children. He provides two specific examples of the application
of the policy to Chinese couples returning from abroad. In
addition, he emphasizes the interest of the Chinese government
in giving our State Department “a deceptively mild impression”
of China’s policies. We conclude that where a motion to reopen
is accompanied by substantial support of the character provided
by the Aird affidavit, the Government’s introduction of a five-
year-old State Department report, without more, hardly
undermines Guo’s prima facie showing. Cf. Berishaj v.
Ashcroft, 378 F.3d 314 (3d Cir. 2004).
Moreover, we agree with Guo that the 1998 Profile, to
the extent it is reliable, actually may buttress her prima facie
case. The 1998 Profile states that the central Chinese
government
does not authorize physical force to make people
submit to abortion or sterilization, but there are
reports that this continues to occur in some rural
areas as local population authorities strive to meet
population targets. Chinese officials
acknowledge privately that forced abortions and
sterilizations still occur in areas where family
planning personnel may be uneducated and ill-
trained.
Moreover, the Board’s analysis failed to account for differences
in enforcement based on an immigrant’s legal status in the
United States. The 1998 Profile references anecdotal evidence
to the effect that “possession or lack of possession of U.S.
permanent resident status is the key criterion for determining

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18
whether couples are subject to family planning restrictions.”
It is true, as the Government contends, that the Aird
affidavit does not demonstrate that any “specific proportion or
percentage” of couples returning to China will be subject to its
family-planning policy, nor does Aird contest that variations
occur in enforcement. But that is not Guo’s burden. While
some couples in Guo’s situation might avoid serious
repercussions upon returning to China, the conflicting evidence
suggests at least a reasonable likelihood that Guo will establish
a well-founded fear of persecution.
We thus conclude that the Board erred in finding that
Guo presented insufficient evidence to establish her prima facie
case.
Conclusion
The Board’s cursory rejection of Guo’s motion to reopen
was improper. It failed to explain how the IJ’s adverse
credibility finding bears any relation to Guo’s claim, based on
physician-verified evidence of pregnancy and a third-party
affidavit, that she feared persecution relating to China’s family
planning policy. Moreover, it seems likely that the Board
applied the wrong standard in evaluating the motion to reopen.
Guo made a prima facie case under the correct standard: she
presented facts showing a reasonable likelihood that she would
prevail on the merits. We thus grant Guo’s petition for review
and remand for further proceedings consistent with this opinion.

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