Song Lin sought political asylum from China’s “coercive population measures.”
Lin and his wife married and had a daughter, both at a younger age than allowed in China. They decided to have a second child and went to a doctor to have a government-inserted intrauterine device removed. A cousin posed as Lin’s wife for several government-mandated gynecological exams until she gave birth.
After the birth, Lin’s wife was arrested and forcibly sterilized. The couple was fined for their early marriage and for the birth of their two children. The government threatened to destroy their house if the fines were not paid.
Lin’s story was corroborated by his wife, his mother and father and his wife’s cousin, but the immigration court and the Board of Immigration Appeals denied his claim because he failed to show he had been detained or physically harmed.
His motion to reopen the case was rejected in 2013 as untimely. Because it was late, he needed to show he had been prevented from filing on time due to his prior counsel’s ineffectiveness, that he demonstrated due diligence in discovering the error, and that he complied with procedure. In denying the motion, the BIA found that he did not show that his counsel’s ineffectiveness prejudiced the case.
The Ninth Circuit panel disagreed in an unpublished July 14 memorandum.
“To demonstrate prejudice, a petitioner need only show that ‘the performance of counsel was so inadequate that it may have affected the outcome of the proceedings,” the panel ruled. “Here, Lin has demonstrated that he has a plausible ground for relief, and the BIA abused its discretion in concluding otherwise.”
The Ninth Circuit also found that the BIA’s conclusion in the first hearing, that Lin had not suffered persecution, was incorrect.
“Physical abuse and detention are not the only conduct that rises to the level of persecution. … Persecution may be emotional or psychological, as well as physical,” the panel ruled. “As a result, BIA abused its discretion in concluding that Lin failed to demonstrate a plausible claim of persecution simply because he was not detained or physically harmed.”
The panel consisted of Ninth Circuit Judges Raymond Fisher, Richard Paez and Jacqueline Nguyen. They granted Lin’s petition for review, remanded to the BIA for further proceedings and stopped an order to deport him.