### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 2411

T IE X IA C HEN

,

Petitioner

,

v.

E RIC H. H OLDER

, J R

., Attorney General of the United States,

Respondent

.

____________________ Petition for Review of an Order of the

Board of Immigration Appeals.

No. A200 025 604

____________________

A RGUED M ARCH 3, 2015

— D ECIDED A PRIL 1, 2015

____________________

Before P OSNER

, K ANNE

, and T INDER

, Circuit Judges

.

P ER C URIAM

. Tie Xia Chen, a Chinese citizen, seeks relief

from removal on the ground that he will be persecuted for

violating his country’s one

‐ child policy. He petitions for re

‐

view of the Board’s denial of his motion to reopen. In that

motion, Chen argued that his attorneys had mishandled his

case by neglecting to offer available evidence that would

have resolved deficiencies in his asylum application identi

‐2 No. 14

‐ 2411

fied by an immigration judge. Because the Board largely ig

‐

nored this potentially meritorious argument, its ruling is

procedurally defective, so we grant the petition and remand

for further proceedings.

Chen entered the country in 2005. The Department of

Homeland Security now seeks to remove him on the ground

that he is “an alien present in the United States without be

‐ ing admitted or paroled.” See 8 U.S.C. § 1182(a)(6)(A)(i).

Conceding removability, Chen has applied for asylum,

withholding of removal, and relief under the Convention

Against Torture. He contends that Chinese authorities will

persecute him for refusing, by having two children, to follow

the one

‐ child policy.

At his removal hearing Chen testified about his claim of

persecution. He explained that he fled China after he was

arrested and beaten in his home province of Fujian when of

‐

ficials found out that his wife was pregnant with their sec

‐

ond child. Police detained, interrogated, and beat him for six

months in 2004 and early 2005 as they tried to find the

whereabouts of his wife. The police released him after his

parents paid 3,000 yuan (about 480 dollars), on the condi

‐

tion—as reflected in written notices—that his wife undergo

forced sterilization or they pay a fine of 20,000 yuan (approx

‐ imately 3,200 dollars) to register the son. He testified that his

wife has refused to be sterilized. (His written application for

relief from removal, in one translation from Mandarin, im

‐ plied that his wife has already been sterilized.) Chen fled the

country without paying any fine, and his wife and daughter

now hide from authorities at a relative’s house; their son

lives with Chen’s parents. Chen explained that he could not

hide in China and still find work. (When a border agent de

‐No. 14

‐ 2411 3

tained him temporarily in Texas, Chen similarly told the

agent that he had come to this country to seek work.) Chen’s

brother’s adoptive father, Patrick Meredith, also testified at

the hearing. He said that he met Chen’s two children when

visiting China in 2005.

During the removal proceedings, the case boiled down to

whether Chen in fact has two children. His first attorney,

Marian Ming, requested from Chen and submitted to the IJ

documents to corroborate Chen’s claim that he has two chil

‐

dren. These included photographs of Chen’s children, notic

‐

es from the birth control office threatening sterilization or a

fine, and birth certificates for Chen (translated into Spanish),

his wife, and his son and daughter. The Forensic Document

Laboratory of the Department of Homeland Security deter

‐

mined that the son’s birth certificate was counterfeit. Ac

‐ cording to Chen, Ming did not tell him that the lab deemed

the birth certificate a counterfeit and instead just told him

that it was “useless.” Because, Chen explained, Ming told

him that he needed another birth certificate and Chen want

‐

ed to comply with his attorney’s request, he asked his father

to get a new one, which the Forensic Document Laboratory

determined was also counterfeit. Although Chen knew that

because his son was not registered a genuine birth certificate

is generally not available, he believed that his son’s docu

‐

ments were authentic because his father got them from a

government office. Chen later replaced Ming with attorney

Yongbing Zhang, who represented him when he testified at

his removal hearing. Zhang submitted additional evidence

to corroborate Chen’s claim that he had two children in vio

‐

lation of the one

‐ child policy, including letters from Chen’s

parents and wife that refer to both children, and a message

from his daughter.4 No. 14

‐ 2411

Focusing initially on Chen’s testimony, the IJ denied re

‐

lief. She explained that testimony alone, if found credible,

can satisfy an applicant’s burden, but that, because of several

“major” inconsistencies, Chen’s “testimony [was] insuffi

‐ ciently persuasive to meet his burden of proof.” The “most

significant inconsistency” was that Chen’s translated asylum

application asserted that his wife already had been sterilized

while he testified she would be sterilized if caught. The IJ

also noted that (1) Chen could not explain why his birth cer

‐

tificate was translated into Spanish; (2) Chen’s testimony

about meeting Patrick Meredith changed (he supposedly

said that he first met him in China, but later placed the first

meeting in the United States; Chen also supposedly varied

his account of whether he and Meredith met while Chen was

detained in Texas); and (3) Chen suggested that he came to

this country for work, not to avoid persecution, because he

told the IJ and a border agent that he cannot find work in

China.

Because Chen’s testimony alone was insufficient, the IJ

examined whether he had corroborated his claim and found

that he had not. The IJ determined that his son’s birth certifi

‐

cates were not corroborative because they were fraudulent,

and Chen knew or suspected the fraud because he testified

that he knew that because his son was not registered, he

could not get a valid birth certificate. The IJ added that, even

if Chen did not suspect the fraud, he needed other corrobo

‐

ration. But the IJ discounted Chen’s other corroboration as

inconsistent with some evidence or otherwise defective. The

letter from his parents that referred to Chen’s two children

contradicted a part of Chen’s testimony by saying that they,

not Chen, came up with the idea to get the birth certificates.

His daughter’s letter implied that she is now eleven yearsNo. 14

‐ 2411 5

old, but her birth certificate suggested that she was only

nine. And the Chinese government’s notices threatening

sterilization or a fine were not authenticated. Chen unsuc

‐ cessfully appealed the IJ’s decision to the Board.

Chen then retained new counsel and moved the Board to

reopen based on Ming and Zhang’s ineffective assistance. In

a detailed brief, Chen methodically argued that each incon

‐ sistency or deficiency identified by the IJ could be attributed

to his counsel’s incompetence. Among other failings, Chen

maintained that they neglected to submit evidence or argu

‐

ment that (1) the discrepancy between his written asylum

application and his testimony about his wife’s sterilization

was based on a mistranslation, which Ming has now

acknowledged; (2) his birth certificate was translated into

Spanish because he had once sought a visa to travel to Spain;

(3) the IJ mischaracterized his testimony about when he met

Meredith; (4) the border agent’s report about Chen’s reasons

for coming to this country was unreliable; (5) the ostensible

discrepancy in his daughter’s age arose from a traditional

Chinese method of age counting; and (6) the IJ improperly

required that the sterilization notices be authenticated. Chen

also argued that Ming’s negligence misled him into submit

‐ ting the fraudulent birth certificates because she never ex

‐ plained to him that the government was questioning the au

‐ thenticity of his son’s birth certificate but simply told him he

needed to submit another one.

The Board denied Chen’s motion to reopen. It assumed

that the attorneys’ performance was substandard and found

that Chen complied with the requirements of Matter of Loza

‐

da

, 19 I. & N. Dec. 637, 639 (BIA 1988). But, focusing exclu

‐ sively on the birth certificates, it ruled that Chen failed to6 No. 14

‐ 2411

show prejudice. The Board observed that, even though the IJ

“did not make an adverse credibility finding,” the IJ re

‐ quired Chen to corroborate his claim, but Chen knew or

suspected that the birth

‐ certificate corroboration was

fraudulent. Without that required corroboration, the Board

concluded, his claim was doomed, so his attorneys did not

prejudice him: “Given that the respondent submitted fraud

‐

ulent documents that were intended to corroborate a matter

at the heart of the respondent’s asylum claim, we conclude

that the respondent’s applications for asylum and related

relief would have been denied notwithstanding any other

issues raised in the motion to reopen.”

On appeal the parties offer two possible interpretations

of the Board’s ruling, but both necessitate a remand. Accord

‐ ing to Chen, the Board ruled that because he knew that his

son’s birth certificates were fraudulent, his claim necessarily

fails regardless of his attorneys’ representation. If that is the

correct reading of the Board’s decision, then its reasoning is

erroneous. A finding that an applicant knowingly offered

fraudulent evidence allows an IJ to find an applicant not

credible, but it does not require an adverse credibility ruling

or compel the IJ to deny the claim solely based on the fraud

‐

ulent submission. See Hanaj v. Gonzales, 446 F.3d 694, 698–700

(7th Cir. 2006); Kourski v. Ashcroft

, 355 F.3d 1038, 1039–40

(7th Cir. 2004) (“Of course, even if he forged it himself, this

would not prove that he was not Jewish, as it is not un

‐

known for persons who have valid claims but no evidence to

support it to forge some evidence.”). And here the Board

acknowledges that, even though the IJ found that Chen

knew or suspected the fraud, she made no adverse credibil

‐ ity finding. Therefore, on Chen ʹ s interpretation of the

Board ʹ s ruling, a remand is needed for a corrected inquiryNo. 14

‐ 2411 7

into prejudice. Without treating the fraud as automatically

barring relief, the Board must decide whether Chen was

bound to lose his case even with competent counsel.

The government counters that the Board has already so

ruled. According to the government, the Board ruled that

because Chen knowingly submitted false birth certificates,

he did not corroborate the heart of his claim, and therefore,

lacking this essential corroboration, Chen would have lost

even with competent counsel. But if the Board ruled that

Chen must lose because he lacks corroboration, its ruling is

procedurally flawed because it ignores Chen’s main argu

‐

ment in his motion to reopen: the IJ required corroboration

only because his attorneys ineptly caused the IJ to find

Chen’s testimony inconsistent. If his attorneys had properly

presented his testimony, Chen explains, any inconsistencies

might have vanished, and the IJ might have found his testi

‐

mony, standing alone, sufficient to carry his burden without

the need for corroboration. See 8 U.S.C. § 1158(b)(1)(B)(ii);

cf. Fadiga v. Att’y Gen. U.S.

, 488 F.3d 142, 162–63 (3d Cir.

2007) (finding that counsel prejudiced petitioner when the

IJ’s doubts about petitioner’s credibility were based on in

‐

consistencies attributable to ineffective counsel, who also

failed to provide available corroborating evidence).

The Board never evaluated Chen’s argument that, but for

his attorneys’ failure to resolve the inconsistencies cited by

the IJ, she would not have required corroboration or would

have found the corroboration (beyond the birth certificates)

sufficient. For example, “the most significant inconsistency,”

according to the IJ, was that Chen asserted in his written ap

‐ plication for asylum that his wife had been sterilized but tes

‐

tified that she was only threatened with sterilization. But in8 No. 14

‐ 2411

his motion Chen offered evidence that Ming had the applica

‐

tion mistranslated and that attorney Zhang, who spoke

Mandarin, carelessly left it mistranslated. Chen’s motion al

‐

so goes through every other supposed inconsistency or defi

‐ ciency—the Spanish translation of his birth certificate, meet

‐ ing Meredith, his daughter’s age, his reasons for coming to

the United States, and document authentication—and offers

the resolution that his attorneys neglected to furnish. The

Board addresses none of this evidence or its possible effect

on the IJ’s decision.

Moreover, even if the IJ would have wanted corrobora

‐

tion beyond his testimony, a birth certificate was not the on

‐ ly evidence that would have sufficed. (In fact, because Chen

claimed that he was persecuted for violating the one

‐ child

policy, he necessarily could not obtain a valid birth certifi

‐

cate for his son because birth certificates are not issued for

unregistered children. Yet his attorney misadvised him to

get one.) As Chen notes, he submitted corroboration other

than the birth certificates. Meredith testified that he had seen

both of Chen’s children in China, the letters from Chen’s

parents and Chen’s wife both discussed that Chen’s son was

living with Chen’s parents, and photos showed Chen’s wife

with their son. A competent attorney, Chen argued in his

motion to reopen, could have overcome the IJ’s reasons for

discounting this further evidence or explained why addi

‐

tional corroborating evidence could not be reasonably at

‐

tained. The Board, however, addressed none these conten

‐

tions either.

Where, as here, the Board ignores a potentially meritori

‐

ous argument when deciding a motion to reopen, it abuses

its discretion. See Moosa v. Holder

, 644 F.3d 380, 384, 386No. 14

‐ 2411 9

(7th Cir. 2011); Kebe v. Gonzales

, 473 F.3d 855, 857–58 (7th Cir.

2007) (citing cases that were remanded because “the BIA ʹ s or

the IJ ʹ s failure to discuss potentially meritorious arguments

or evidence calls into question whether it adequately consid

‐

ered these arguments”). This principal applies to motions to

reopen based on claims of ineffective assistance. See Filja v.

Gonzales

, 447 F.3d 241, 256 (3d Cir. 2006) (remanding when

Board’s prejudice holding on ineffective assistance of coun

‐

sel claim suggested Board did not sufficiently review record

or applicant’s arguments); Mohammed v. Gonzales

, 400 F.3d

785, 792–93 (9th Cir. 2005) (finding Board abused its discre

‐

tion when it denied motion to reopen for ineffective assis

‐

tance in an “incomplete opinion” that did not consider all

submitted evidence that showed petitioner was prejudiced

by counsel’s performance).

Thus, the petition for review is granted. The Board

should determine if Chen’s attorneys incompetently neglect

‐

ed to offer evidence and arguments that might have resolved

the inconsistencies identified by the IJ. If so (or if the Board

assumes so), it should decide whether the IJ would have

ruled against Chen anyway.