Study of Board of Immigration Appeals Procedural Reforms - ILW.com

democracy activities in the United States, including his affiliation with the Chinese Alliance for
Democracy, his participation in protests in front of the Chinese embassy in New York to rally for
democratic reform in China, and his publication of articles critical of the government of the PRC
in prominent international Chinese-language journals. 250
While the Immigration Judge did not take any issue with Mr. Tang’s testimony that he
had been politically active against the PRC government, that he had suffered persecution, or that
he fears persecution in the future, the Immigration Judge denied Mr. Tang’s application for
asylum “on the basis that his evidence was not plausible in a few respects.” 251 The Immigration
Judge also concluded that, because Mr. Tang was working in the United States for a company
run by persons of Chinese extraction, he would not reasonably fear persecution upon his return to
China. The basis for this remarkable conclusion, the Immigration Judge admitted, was “a
feeling.” 252
The Third Circuit concluded that the Immigration Judge’s opinions “were premised on
inferences, assumptions, and feelings that range from overreaching to sheer speculation.” 253 The
court went on to note that “[t]he record is bereft of evidence, much less ‘substantial evidence,’ to
support an adverse credibility determination” as found by the Immigration Judge and summarily
affirmed by the BIA. 254
Based on this review of the record, the Third Circuit held that the “adverse credibility
determination made in this case was not supported by substantial evidence of record and may not
stand.” 255 The court vacated the BIA’s order and remanded the case to the BIA with further
instruction to remand to the Immigration Judge for a determination of whether, given the
testimony that Mr. Tang suffered past and fears future persecution, testimony the court found to
be credible, he and his wife should be granted asylum and/or withholding of deportation. 256
Tuhin v. Ashcroft 257
Azim Tuhin, a native and citizen of Bangladesh, fled to the United States after having
been arrested and beaten by the police in connection with a political protest. 258 Mr. Tuhin was
arrested at the protest: “A group of five or six officers kicked Tuhin and hit him with their
batons; Tuhin was beaten again at the police station. During the beatings the police warned him
to cease his political activism. . . .” 259 Mr. Tuhin spent a month in jail, where he was beaten on
250 Id.
251 Id.
252 Id.
253 Id.
254 Id.
255 Id.
256 Id. The court held that given this conclusion it need not reach other issues raised by Mr. Tang, “including the issue of the propriety and
indeed, the constitutionality of the BIA’s practice of summary affirmances.” Id.
257 Tuhin v. Ashcroft, 2003 WL 1342995 (7th Cir. Feb. 11, 2003) (unpublished opinion).
258 Id.
259 Id.
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